May Arbitrators Suggest Mediation? an Informal Survey
Phillips, Gerald F., Dispute Resolution Journal
There is supposed to be a trend toward including mediation as the first step in the dispute resolution provision of contracts. I find this is not the case. In my experience as a full-time neutral, many lawyers fail to discuss the benefits of mediation with their clients unless obligated to do so by a rule or a statute, or when a court is about to send the case to a courtappointed mediator. Many litigators still seem to fear that raising the subject of mediation (or suggesting it) makes them appear weak and not the gladiator they perceive the client wants. I believe that a litigator who asks if the client wants to consider mediation is acting ethically and doing her job as counsel.
True, a case that is mediated earns the attorney less money because the chances are that the case will settle during the mediation. But not mentioning mediation because of this would be an unethical act of self-interest.
The question raised in this article is this: "Should an arbitrator raise the subject of mediation with the parties to the dispute?" I would answer "usually" for the reason that parties generally are better off mediating than using an adjudicatory process in which a third party decides the dispute. Furthermore, mediation is faster and more likely than arbitration to lead to a resolution that will satisfy both parties.
The College of Commercial Arbitrators (CCA), of which I am a member, has considered this question in its new Guide to Best Practices in Commercial Arbitration (Best Practices Guide).1 Under the heading "Encouraging Mediation or Other Settlement Efforts" the Best Practices Guide states: "Arbitrators should be cautious about encouraging parties in an arbitration to pursue mediation or other settlement efforts but may appropriately do so in cases in which the benefits of that course clearly outweigh the possible harms." The Best Practices Guide also acknowledges that "whether arbitrators, at or before the preliminary conference, should suggest that the parties consider mediating their dispute ... is a matter of some disagreement among arbitrators."2
It goes on to note that "[s]ome arbitrators believe that since mediation is often a more economical and a less risky way to resolve disputes than arbitration and some parties may be unaware of the mediation alternative, arbitrators should bring this matter to their attention at the preliminary conference for their consideration." The Best Practices Guide says "[t]he [CCA] takes no position" on the issue and concludes with this cautionary statement: "Perhaps the best advice that can be given is that arbitrators should approach this matter with care, conscious of both the potential benefits and potential risks, and should tailor their actions to the circumstances of each case rather than adopting a uniform practice to be followed at all preliminary conferences."3
To find out what other experienced arbitrators think about bringing up the subject of mediation during the first preliminary conference or at another time, I prepared a questionnaire and sent it to 150 leading commercial arbitrators who are members of the CCA or the California Dispute Resolution Counsel.4
I received 52 partially answered replies. The tabulated results are interesting but I found even more revealing the comments made by those who responded to the survey. This article presents some of those comments for consideration.
1. When you are about to arbitrate a dispute, during the preliminary conference or at any time during the arbitration, do you ask counsel whether the parties have considered mediation?
Answers: Usually 14; Sometimes 15; Rarely 10; Never 11
Out of 50 responses, more than 55% of respondents answered "usually" or "sometimes."5 Twenty percent answered "rarely" and over 20% answered "never."
David N. Brainin, Of Counsel to New York's Locker, Greenberg & Brainin, answered "usually." He also commented: "Since one (or both parties) may be concerned that they would show weakness by mentioning mediation, I believe this is a good opportunity to put the idea on the table. …