Mediator-arbitrator must take ethical approach
A mediator can also serve effectively as an arbitrator, providing that guidelines are set out clearly at the beginning of the process, says Oakville family lawyer Cathryn Paul.
Parties can choose to engage in straight mediation, mediation-arbitration, or straight arbitration, she says.
“A mediation-arbitration process gives the parties incentive to come up with a resolution in the mediation phase, because they know that if they don’t, the power to make a decision moves to a third party,” says Paul, a family mediator and arbitrator.
Mediation is a means of arriving at a resolution without having to resort to the often more expensive and adversarial court process, she says. It is also a private and voluntary process.
If the parties choose mediation-arbitration, and they are unable to come to a full decision during mediation, an the arbitrator will decide on the outstanding issues.
It is considered an efficient and less expensive way to resolve issues, Paul says. Mediation-arbitration also give those involved the opportunity to choose their own decision maker — an option that isn’t available through the courts, she says.
“So you can choose someone with the background and the skills you’re comfortable with,” Paul tells AdvocateDaily.com.
The mediator can serve as the arbitrator if both parties agree. But someone acting in both roles must ensure their approach is an ethical one, she says.
“It takes a very different skill set,” she says. “The challenge is that the parties are putting their case in the hands of one person and you’re asking them to take on two roles, which can be quite different.”
A mediator works creatively to help their clients resolve the issues in a facilitated negotiation, she says. An arbitrator considers all the evidence to come to a reasoned decision.
Paul says a mediator-arbitrator has to be someone who is good in both of those roles and that they understand the boundaries. For instance, they cannot use what they know through the mediation process as part of their decision in arbitration, they can only use the evidence that’s properly brought forth in arbitration.
“As opposed to a straight mediation, in a mediation-arbitration, I am much more careful in the mediation phase not to let people know what my thoughts are regarding what would happen if it went to arbitration or to court,” she says. "I need to let people know I'm open to multiple resolutions."
Some people criticize the mediation-arbitration process, preferring instead to have different people taking the roles of mediator and arbitrator, citing the concern that the decision-maker should not be part of the settlement discussions, and cannot fully scrub his or her mind of any matters discussed in that process that do not form part of the evidence to be used in the arbitration.
Paul likens the transition from mediator to arbitrator to the two hats a judge might wear in court. In a voir dire, for instance, the judge will hold a trial within a trial to determine whether a particular piece of evidence is admissible. If it isn’t, it is discarded and the judge must disregard all the information he or she has learned on that issue when returning his attention to the trial proper.
The process that the parties are engaging in should be clear before any negotiation even begins, says Paul.
Paul also works with another mediator-arbitrator who will take on one of the roles if the clients or lawyers prefer that they be performed by different people.
“It is critical to consider the clients’ objectives and concerns in designing a process to help them reach a resolution," she says.