May Arbitrators Suggest Mediation? An Informal Survey - Chapter 60 - AAA Handbook on Mediation - Third Edition
Gerald F. Phillips is a Full-time, Los Angeles-based Neutral specializing in large complex commercial and entertainment disputes. The author is also an Adjunct Professor at the Straus Institute for Dispute Resolution at Pepperdine University School of Law. Mr. Phillips authored, Fair Deal for All Clients: How to Rekindle Pride in the Legal Profession, Carolina Academic Press (2013). The author would like to hear from readers who have experience asking the parties if they have considered mediation. He can be reached at firstname.lastname@example.org. Mr. Phillips thanks the survey respondents for participating in the survey and permitting publication of their responses and comments. He also thanks his wife, Francine, for her help.
Gerald F. Phillips
There is supposed to be a trend toward including mediation as the first step in the dispute resolution provision of contracts. I find this is not the case. In my experience as a full-time neutral, many lawyers fail to discuss the benefits of mediation with their clients unless obligated to do so by a rule or a statute, or when a court is about to send the case to a court-appointed mediator. Many litigators still seem to fear that raising the subject of mediation (or suggesting it) makes them appear weak and not the gladiator they perceive the client wants. I believe that a litigator who asks if the client wants to consider mediation is acting ethically and doing her job as counsel. True, a case that is mediated earns the attorney less money because the chances are that the case will settle during the mediation. But not mentioning mediation because of this would be an unethical act of self-interest.
The question raised in this chapter is this: “Should an arbitrator raise the subject of mediation with the parties to the dispute?” I would answer “usually” for the reason that parties generally are better off mediating than using an adjudicatory process in which a third party decides the dispute. Furthermore, mediation is faster and more likely than arbitration to lead to a resolution that will satisfy both parties.