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May Arbitrators Suggest Mediation? An Informal Survey - Chapter 9 - AAA Handbook on Arbitration Practice

Author(s): 
Gerald F. Phillips
Page Count: 
16 pages
Media Description: 
PDF from "AAA Handbook on Arbitration Practice"
Published: 
August, 2010
Jurisdictions: 
United States
Practice Areas: 
Authority of the Arbitral Tribunal,
Powers of Arbitrators,
Right to Decide ex aequo et bono,
Responsibility of Arbitrators,
Capacity and Qualifications of Arbitrators,
Mediation,
AAA
Author Detail: 

Gerald F. Phillips is a full-time mediator and arbitrator. He is a founding member of the College of Commercial Arbitrators and is an adjunct professor of law at Pepperdine School of Law. He is the chair of the ADR Committee of the State Bar of California. He also chairs the Entertainment and ADR Committee of the ABA Section of Dispute Resolution. He serves on panels of the American Film Marketing Association and the American Arbitration Association.

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Description: 

Originally from: AAA Handbook on Arbitration Practice

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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 article 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.