So, let’s say you’re in mediation. The joint session is over, and you’re in caucus with your client – who isn’t sure what to do. You are performing the balancing act of advising the client about his or her options, while reminding the client that s/he is the one who has to make the decision. On the one hand, you don’t want the client to think that you aren’t advising him or her; on the other, you know that if your dithering client takes your advice about whether to make the deal the mediator has just relayed – and your advice turns out “wrong” (with the benefit of hindsight) – then you’re going to have an upset client looking for someone to blame.
Under those or similar circumstances, we mediators hear parties (and, all too often, their counsel) ask for our opinion about what to do; about whether they’ll win or lose; or about the strength or weakness of the legal claims/defenses. Giving such opinions is problematic for certified or court-appointed mediators, and many resist doing so.2 While mediator resistance is consistent with the Florida “facilitative” model of mediation, it is often dissatisfying to the parties and counsel.
What if I told you there were at least two dispute resolution processes tailor-made for this situation, where, to resolve the dispute, parties and/or counsel need some third-party evaluation of the claim as a basis for negotiation: “med-arb” and “arb-med”?3
In med-arb, a neutral, who is experienced in both mediation and arbitration, first conducts a mediation, trying to see if the parties can reach agreement. If they cannot, then the neutral declares the mediation at an impasse, and conducts an arbitration hearing, taking testimony and documents and rendering an award, which is usually binding on the parties. In arb-med, the neutral does the same thing, but reverses the processes: first s/he conducts an arbitration hearing and renders an award and then a mediation. The neutral keeps the award confidential until after mediation is conducted and settlement explored by the parties; if the parties settle, the arbitration decision is discarded; if the parties do not settle, then the arbitration decision determines the outcome.
One concern with med-arb is that, during the mediation phase, the neutral may have learned of information that would not be properly considered at arbitration and, consequently, either the arbitration part of the process would be tainted or the mediation would be less likely to result in settlement.4 Arb-med overcomes this issue, because any inadmissible information would not be revealed until after the neutral had made the arbitration decision. Having said that, one observer has noted that, “[a]lthough the risk of the decision being influenced by confidential material is eliminated, this is done at the [financial] cost of the arbitration part of the process, especially if the mediation is successful, because in that event the decision never sees the light of day.”5
While both processes may have drawbacks, they can each help you help your client answer the question: what should I do?
1 This article initially appeared in the Hillsborough County Bar Association Lawyer, Vol. 16, No. 7, at 42-43 (April 2006).
2 Mediator ethics prohibit a mediator from offering an “opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.” Fla. R. Med. 10.370(c).
Even if the mediator does not intend to coerce the party, etc., the dithering party who accepts the mediator’s assessment of the claim and acts accordingly on it may have second thoughts after a deal is struck, and look for someone to blame. Thus, many mediators are reticent to do more than point out possible areas of weakness, engaging in reflection exercises or attempting to get counsel to address the merits and attempting to get the party to acknowledge the risk of going forward.
3 As you may suspect, these are short for “mediation-arbitration” and vice versa. A third dispute resolution technique that fits this bill is nonbinding arbitration. I have written elsewhere about court-referred nonbinding arbitration as an early evaluation tool in the lawyer/negotiator’s tool kit, “Non-Binding Arbitration: a Primer and a Proposal”, Hillsborough County Bar Association Lawyer, Vol. 14, No. 3, at 44-45 (November 2003), so I won’t spend more time on it here.
4 The mediation could be less likely to result in a settlement because a party may be holding back information from the mediator, for fear that the mediator-turned-arbitrator might hold the inadmissible evidence against them at arbitration.
5 See, Alan Limbury and Rosemary Howell, Strategic Resolutions, http://www.strategic –
resolution.com/arb_med.html. Another great resource is “The Martindale-Hubbell® ADR Primer Service Roles — Mediation-Arbitration”, http://martindale.com/pdf/med-arb.p df.