Michael Ford (post until Oct. 31/19)
ADR, Family, Mediation

Mediation, arbitration involve distinct skills, techniques

Debate over the ability and for there to be real or apprehended bias for the same person to mediate and arbitrate a case stems from a misconception of the duties and roles involved, says Toronto family lawyer Herschel Fogelman.

“Mediation is not an outcome, it’s a process and arbitration it’s not a process, it’s an outcome,” says Fogelman, a family law lawyer, mediator and arbitrator at Fogelman Law.  

Fogelman says he is often retained to mediate and potentially arbitrate within the same case.  He states that because the roles and duties placed on him in those two roles are so different, the possibility of actual bias is nonexistent.

“The misconception is that the arbitrator will take the information they heard in the mediation setting — relating to settlement decision or relating to an impression formed of the party — and bring that into the arbitration setting and render an award based on that information or those impressions,” he tells AdvocateDaily.com. If the arbitrator did that, that would be actual bias, but in practice, that simply does not occur, he says.

As long as the individual conducting the mediation is professional, and that he or she is careful about offering any statements or commentary that could be construed as “prejudging the issues”  there should be no problems because of the differential roles adopted, Fogelman says.

“In mediation, people are trying to persuade the other side that their settlement decision is reasonable,” he says.  The mediator’s job is to facilitate that dialogue and through active discourse to facilitate the settlement process. “In arbitration, the parties/counsel job is to convince the arbitrator that their legal position is correct and the arbitrator’s narrow job is to apply the law to the facts.” 

“The mediator is less concerned about the correctness of the resolution as opposed to simply achieving a resolution,” Fogelman says. “As an arbitrator, I’ve no interest in your settlement decision. I only apply the facts of the law and reach a decision.”

As a family lawyer, Fogelman attempts to make this process clear to his clients who may be embarking on mediation or mediation/arbitration from the outset. He similarly has an open discussion if he is to mediate a case, and whether the parties would feel comfortable having him arbitrate the case as well.

For example, Fogelman recalls a case he mediated and arbitrated that ended with a completely different result through arbitration than he expected when he was in the mediation role.

“I just did my job, which was to go through the arguments and apply the law to the facts, and the outcome was quite different than what was being discussed at mediation.”

In arbitration, the purpose is to analyze each issue and argument independently, he says. “My approach as arbitrator is to be purely deductive, not inductive,” he says. “I’m doing a very sequential deductive-reasoning exercise as opposed to, 'Here’s the outcome I want to achieve and I’m going to write an award that satisfies my own egocentric view of what’s correct.'”

Fogelman agrees the dual role of mediation and arbitration is not suited to everyone and it’s important that individuals consult a family lawyer to provide advice on each unique situation. 

Mediation is not a licensed field, he adds.

“Being a good mediator is a unique skill set, being a good arbitrator is a unique skill set. Being a good mediator doesn’t make you a good arbitrator and vice versa,” he says. “As the lawyer, you need to know your candidates and their skill sets."

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