An effective Mediator knows that often the parties’ bargaining positions are not reflective of what truly stands behind their positions. While on the surface it may seem that the issue is simply dollars and cents, the fact is that their positions are often driven by other motives. These motives can be such things as anger, lack of recognition, desire to punish, or hopes for concessions.  The Mediator needs to be able to assess which of these motives are behind the positions taken by the parties so that he cannot try to diffuse these factors. It often will prove very difficult to settle a dispute without the parties being able to modify the form or content of their original demands. An effective Mediator knows this and will use his or her skill to assist the parties in distinguishing their true underlying needs-things that the parties will need to address to have any chance in settling the dispute-from their original desires or motives, and modify their bargaining positions accordingly.  This is the task of helping the parties move from the positions they are taking to identifying the interests that underlie those positions and effectively dealing with them to achieve a settlement.

Mediation is a form of alternative dispute resolution which aims to assist disputing parties in reaching an agreement through the use of a trained third party facilitator.  The process differs from arbitration in that resolution at mediation must be brought about by achieving a voluntary consensus between the parties. On the other hand, in an arbitration, although the decision to engage in the process may or may not be voluntary, the result is a legally binding decision.

Mediators therefore play a unique function in that they must be skilled in bringing about a consensus between the disputing parties.   There are a number of roles that an effective mediator will have to assume during the course of a mediation.  These include:
* Facilitation.
* Translation of the parties’ positions.
* Transmissions of facts that the parties may be unaware of.
* Making sure that the parties focus on their interests rather than getting bogged down on their positions.
* Working with the parties to discover or create options.
* Where required, bringing a “dose of reality” to the parties.

In coming postings on this blog, I will examine and provide more information on each of the elements of the mediator’s role as I have set out above.   I hope that my analysis will be of assistance to parties contemplating alternatives to resolving their disputes through traditional adjucative processes.

Despite the best efforts by the judiciary and the legal profession to accomplish the foregoing goals, the results have been far from satisfactory. As a result, more and more clients are asking their counsel “Is there a better way?”

The logical and rational answer is yes, through the means of alternative dispute resolution. The two aspects of alternative dispute resolution are mediation and arbitration. There are a number of differences between mediation and arbitration – some of them obvious and others more subtle. The main difference, however, is that mediation is a consensual process – in essence a form of controlled negotiation, while arbitration, while consensual at the outset, the ultimate result is an imposed resolution.

While the benefits of arbitration versus litigation may, at first blush, appear obvious (and will be referenced shortly), the over arching caveat is that an arbitration, in my opinion, requires more skillful and adroit participants by way of an arbitrator and counsel then one may well expect in the litigation process. A judge by virtue of having been vetted prior to his appointment and for historical reasons has a certain stature that both counsel and clients may acknowledge at the outset. On the other hand, an arbitrator has had to “earn that respect” both in terms of their past performance and the conduct of the current arbitration. It is therefore important that in selecting an arbitrator, due regard must be given to not only his competency, his ethical standards and intellectual honesty, but also, common sense and commitment to the practical. Only in this way, will the twin benefits that are seen in arbitration, i.e. savings of time and costs, likely to be achieved.

Moreover, as an arbitration does not have the “trappings” that a court proceeding would have, it is all that more important that the clients come away from the process feeling that win or lose, the case has been fairly and assiduously addressed by the arbitrator. They must walk away with a “good taste in their mouth”.

As well, because of the important consensual aspects of arbitration such as the selection of the arbitrator and the input into the process, the choice of counsel is also important. He or she must be a person who is capable, practical and have in mind at all times the ultimate goal as to why their clients have selected arbitration – to achieve a fair result by minimizing the cost and maximizing the timeline.

Arbitration presents an effective dispute resolution mechanism in the right hands. Otherwise, it can prove to be a more destructive process than litigation because the parties will generally have had higher expectations as to the benefits of arbitration over the litigation process. If those expectations prove to be illusory, their disappointment will be palpable.

Herb Silber brings a strong combination of experience, expertise and empathy to his role as arbitrator. Herb’s approach creates the positive, respectful atmosphere critical to an expedited arbitration process.