Monday Mediation Meditation

First of all, I am more than gratified by the initial response to this newsletter, launched only last week.? As I said, I’m looking forward to sharing my thoughts on all things legal.? As a preview, there are some interesting cases to come from the Supreme Court as it wraps up its term in the next few weeks, and some significant issues relating to the False Claims Act that are percolating in the Courts of Appeal that might find their way to SCOTUS.? I’m also planning to follow up on the FCA cases decided by the Court last year to see how the lower courts are responding.

On the ADR front, some of you may remember that I posted some “Monday Mediation Meditations” a few weeks back.? I will continue them occasionally as part of this newsletter when the mood strikes, sometimes using a salient quote but also just musing on my new life as a neutral.? Today, I feel like musing about the differences and similarities between mediation and arbitration.

I got the bug to become a mediator many years ago.? I found that I really enjoyed handling mediations for clients, and I began to closely observe how various mediators worked, what techniques worked, and which ones didn’t.? When the time came to take some training, I loved it and found that my fellow mediators in training were all empathetic and like-minded people.? I began volunteering to conduct mediations and mandatory settlement conferences for various courts and got lots of experience.

At some point, in talking to many people about a career in ADR, I began to think about becoming an arbitrator as well.? I signed up for several panels, conducted one arbitration as part of a panel in an attorney-client fee dispute through the LA County Bar Association, and was fortunate to be asked to join the AAA National Roster of Arbitrators.? I was immediately hooked on being an arbitrator.? Why?? Being an arbitrator is so different from being a mediator, right?

Well, yes and no.? To be effective (and to continue to be selected), arbitrators and mediators must be neutral, impartial, and independent and to be seen as such.? Both roles involve meticulous preparation as well as a significant level of human empathy and understanding.? The trade-off is that mediators get to engage in ex-parte communications with either side (and directly with the parties) but decide nothing.? Arbitrators shouldn’t and can’t engage in ex-parte communication and decide “everything” (or, at least, what’s properly presented as part of the arbitration agreement and the demand).? I will leave the Arb-Med or Med-Arb debate, known as the “switching hats problem,” for another day.

?In short, I love doing both mediations and arbitrations, as they each activate the same skills and personality traits more often than they are in conflict.? But don’t worry, I’ll never forget which is which!

Well, that’s it for today.? I spend Thursday mornings in June refreshing the SCOTUS opinions website, so I hope to send out a more legally oriented newsletter next week.