There is a growing belief in the arbitration and mediation community that prospective neutrals should disclose their general thinking and approach to arbitration and mediation. I support this trend, hence describe below my thoughts about the proper roles and practices of an arbitrator and mediator.
Like most, I am a creature of my experiences. Having served both as an attorney in private practice and as a businessperson, my thinking about ADR and how best to serve as a neutral has been shaped in part by that which I admired and that which frustrated me in both of my careers.
As a business person, I wanted answers promptly so that I could plan and move forward with the execution of our business strategies. Of course I wanted the RIGHT answer, but just as important was securing AN answer. The paralysis of uncertainty is often more expensive than the cost of a bad decision. As an attorney advocate, I wanted judges who managed the litigation process, understood the factual and legal issues presented, kept the parties focused on the important issues and limited (or eliminated) the distractions, and who made prompt, clear, and decisive rulings.
Therefore, when serving as an arbitrator I endeavor to keep the parties focused as they present their arguments. I strive to manage the proceeding to assure that (i) the parties have the ability to secure and present all evidence that is material to their dispute, (ii) the parties have the opportunity to fully and fairly present their cases, and (iii) the proceeding is as efficient, fast, and as streamlined as possible while assuring fundamental fairness to all. When making awards and interim rulings, I endeavor to always follow and apply the applicable law, facts, and terms of the contract. I do not believe in “splitting the baby,” and try always to rule as the facts, contract and law dictate. If there are no facts in dispute or the applicable law is clear, I’ll also grant a dispositive motion.
When serving as a mediator, I listen to what is said and to what is left unsaid as I help the parties understand the essence of their dispute and find common ground. I initially work to facilitate the negotiation, but when appropriate will provide my opinion as an objective neutral to the strengths and weaknesses of the parties’ positions. I keep in mind, and remind the parties when appropriate, that a fast conclusion that is palatable may better than the “best” solution sometime in the future.