Posts Tagged ‘mediation’

Herb Silber, Q.C.
Wednesday, October 23rd, 2013    Posted by Herb Silber, Q.C. (posts)
Herb Silber, Q.C.
Herb Silber, QC brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

Introduction

One of the reasons often given as to why parties to an agreement build in a reference to Arbitration is because doing so will result in a more timely and less costly process then they would face if they went to Court. They are prepared to give up certain levers available in a Court process because they crave efficiency and cost savings. But as more and more parties resort to Arbitration, they are often surprised and disappointed to find that their “craving” is not only unsatisfied, but arguably the opposite occurs.

 

Some experienced commentators have offered the opinion that resorting to arbitration to achieve speed of resolution or cost savings can be a fool’s errand. Rather, the appeal of an arbitration should be seen in such benefits as its confidentiality, the ability to secure a person with expertise to evaluate the case and the preservation of ongoing relationships.

 

While these are all noble objectives, I do not believe that it is a hopeless task to expect efficiency and cost savings by resorting to Arbitration, but the path needs to be carefully thought out to achieve that result at the following stages:

  1. At the time the arbitration clause is inserted in an agreement
  2. Once the dispute arises
  3. At the stage the dispute is being arbitrated.

In successive articles I will examine in turn strategies to consider at each of these three stages to try to achieve the desired result of efficiency of process and the cost savings accompanying those efficiencies.

 

 

 

 

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Herb Silber, Q.C.
Tuesday, July 2nd, 2013    Posted by Herb Silber, Q.C. (posts)
Herb Silber, Q.C.
Herb Silber, QC brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

In a prior article I extolled the virtues of mandatory mediations. The context of that article was in the litigation forum that prescribes a process that requires the parties to submit to mandatory mediation and, if they refuse to participate, they face real and substantive penalties.

But what about an Arbitration?

An Arbitration, because of the consensual nature of this process, does not admit to such a mechanism unless the parties include a provision that in some manner mirrors the litigation context I have referred to.

In my view, the parties, or their legal representatives, should ask themselves when they formulate the “arbitration clause” in their agreements, “Should we first require our clients to submit to mediation before triggering an arbitration where an arbitral dispute arises”?

Depending on the nature of the disputes that are likely to arise in an agreement, an obligation to first try mediation gives the parties another tool in their tool kit to find a resolution before they need to resort to the expense of a full blown arbitration. Such a provision that would require the parties to submit in good faith to a mediation is perfectly consistent with the objectives of arbitration, widely recognized, which include finding a timely and inexpensive resolution to the parties’ dispute.

Requiring the parties to submit to mediation before arbitration will afford them all of the benefits that I wrote about in my prior article and, may in the end, save them countless hours in frustration and costs.

Some experts in the area are already discounting speed and cost saving as a benefit in arbitrations -certainly the more complicated ones- so having a mandatory mediation term included in the arbitration clause may be of even greater value to the parties.

The nature of the clause to be employed that engages mediation as a mandatory requirement to precede arbitration can be as creative as the circumstances warrant and the parties can agree.

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Herb Silber, Q.C.
Wednesday, October 10th, 2012    Posted by Herb Silber, Q.C. (posts)
Herb Silber, Q.C.
Herb Silber, QC brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

Many jurisdictions have mandatory mediation schemes of one type or another. Some are by a legislative scheme as is the case in British Columbia, [1] where any party can trigger the process to begin.  Other jurisdictions, particularly in various states in the U.S., have a judicial process that gives discretion to order mediation. While a “mandatory mediation” may sound counter intuitive given that our understanding is that at its core mediation is intended to be a consensual process, my experience is that it is surprising what the dynamic of having the parties commit time, personnel and resources can achieve. Often times this may be the first time the parties have been a room together, either ever or certainly since the dispute arose. Whether they think they do or not, they have a psychological investment in seeking success.  As such, while they may have met involuntarily, that does not necessarily mean that a voluntary agreement cannot be reached. It must be noted of course that no jurisdiction I am aware of requires the parties to come up with an agreement, only that they participate in arguably a good faith fashion to do so. At the very least the process can be useful to narrow the issues between the parties even if a full scale resolution is not achievable.

The one question sometimes arise is how to deal with a recalcitrant party who refuses to participate in the process. Various options may be available depending on the source of the mandatory mediation process. As an example, under the legislative model used in British Columbia, the defaulting party may ultimately find that their claim is dismissed or their defence is struck if they persistently refuse to engage in the mediation and the steps leading to it. Elsewhere where a judge is responsible for ordering the mediation, failure to comply with the Court’s Order could lead to a contempt citation. While these are draconian methods, the real objective of the mediator ought to be to ascertain why the party or parties, depending on the scheme employed, are objecting to the process and attempt to override through persuasion these concerns.

 


[1] Notice to Mediate

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Herb Silber, Q.C.
Monday, July 11th, 2011    Posted by Herb Silber, Q.C. (posts)
Herb Silber, Q.C.
Herb Silber, QC brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

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.

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Herb Silber, Q.C.
Thursday, March 10th, 2011    Posted by Herb Silber, Q.C. (posts)
Herb Silber, Q.C.
Herb Silber, QC brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

As mentioned in my earlier post The Mediator as a Facilitator, one of the challenges in mediation is how to deal with the breakdown in communication and trust between the parties. As is often the case,  they may not have spoken since the dispute arose.

The breakdown of communication is likely good evidence that the parties are not understanding each other’s positions.  Mediation is an exercise in dealing with interests, of course, not positions.  Regardless, the Mediator must quickly assess if the parties are not just talking at each other, but also truly understanding what the other is saying.  Reasons for a lack of understanding include a lack of awareness of certain facts or differing perceptions of the meaning of those facts.

The mediator, therefore. can provide a valuable service to the parties by “drilling down” on the facts and understandings each party may have and not only transmitting information that may not be known, or whose relevance has not been given sufficient importance, but also translating that information in a way that may give each party a new perspective on the dispute. Both functions are important and may pay big dividends in achieving a successful outcome.

 


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