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Check-ins about mediating - What are your thoughts?

Should arbitrators build into a preliminary hearing order (and raised at conference) various check-ins with the administrator to take the temperature of parties willingness to mediate? One point might be after discovery deadlines (or a significant deposition), another could be after the evidentiary hearing but before an award is issued.

An order can build in at least two check-in phone calls with the administrator about the parties openness to pursue mediation. The administrator speaks to each party individually. If only one party wants to mediate than the administrator simply advises all parties that an avenue for mediation will not go forward.

Please provide your thoughts/comments below.

Comments (9)

Linda Gerstel:

This would be a great policy because it builds into an order the idea of having mandatory check ins ( at various points where parties might be more open to mediation ) and it would appear to limit one side’s concern of appearing weak by raising the fact that they may be more open to mediation.

The individual check in preserves a party’s concern of raising mediation in the first instance and preserves anonymity if the other party is not open to mediation. It’s a win win- if both parties are open to mediation than the parties can move forward with a “mediator in reserve “. If only one party was interested the other party (not open to discussions) does not need to know the other parties true position.

If arbitration is to be seen as “competitive “ with an equal chance of allowing the parties to reach a “negotiated agreement” then statistics on settlement in arbitration may begin to mirror the statistics seen in Court litigation.

Linda Gerstel
Lindagerstel@gmail.com

The goal of all ADR should be efficient and effective resolution of disputes. Using arbitrator check-ins can promote parties’ opening the door to mediation without appearing weak. Cynics who suspect that arbitrators prolong arbitration or are disappointed by settlement would not be won over but creating path to facilitate a different path to mediation would be great. AAA could send a case to mediation track then return to same arb panel unless circumstances had changed.

This is a good idea and it is definitely worth trying out. It may be particularly useful in family business- breakup arbitrations where there are significant emotional issues impacting the participants. This invariably results in excessive litigation-type motion practice and hence increasing arbitration costs. Mediation should be periodically suggested, at least in this category of disputes.

Michael Orfield:

I agree with the comments above. But what about an institutionalized check in iinitiated by the Adminisrator, so fees charged by the Arbitrator are not impacted. At the end of discovery seems an excellent moment. Not sure about after the EH.

Judge Christine O.C. Mjiller (Ret.):

The realization that settlement can be a better resolution than a complete defeat or an expensive win after a long and costly arbitration is iterative and can become evident to one or both parties as the case matures. Two opportunities are after a decision on a motion for summary judgment or after the final prehearing conference. And during a hearing, enlightenment may strike. Over 30 years of bench trials in complicated financial, commercial, and construction cases taught me to be receptive to requests for short breaks during which the parties would explore settlement. Raising the issue of mediation at set intervals was not productive and can delay ultimate resolution if it becomes a formal process. During 2018 I was the wing on a panel when the parties asked the chair to meet with them for 4 hours during the hearing to explore settlement. They signed a release for the process. Such an approach does not compromise the integrity of the decision, and this particular case had to go to decision.

Michael S Wilk:

Arbitrators should bring up mediation and remind the parties that AAA has a process for facilitating the appointment of a mediator. I used to provide for a deadline for mediation, but stopped because I think that the parties should not be limited to pursue mediation. I think a call to the parties during the process to remind them of the availability of mediation is not a bad idea. However in the venues of most of my arbitration’s, the parties are familiar with mediation and in most cases attempt to settle through mediation before the final hearing.

Eric Wiechmann:

Good idea but one additional thought . Don't at the beginning set a specific time for the check ins. Instead create two general windows when the administrator will confer with the panel to get a sense if the time is right for the parties to consider mediation or a slight delay until an event occurs could help.

Richard Lutringer:

Excellent idea. Perhaps the preliminary hearing order could provide that the AAA administrator will contact each party at specific regular intervals (e.g., every 45 days), to check in on the willingness to pursue mediation of all or part of the claim. If counsel are aware that a contact will be made, they and their client have the opportunity to discuss it ahead of the contact date and be prepared to respond proactively.

Anonymous:

I think reminding the parties that mediation is an alternative that ought to be considered and that the forum administrator can help is a good idea. But it is rare these days that parties and their counsel are unfamiliar with mediation.

Arbitration is contractual, and doesn't lend itself to the arbitrator staying the case sua sponte and ordering mediation, as we see in court sometimes.

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