A Day In The Life Of An Arbitrator And Mediator At Simburg Dispute Resolution

Each day can be different, and I have to explain the process so you can know what the day is like. Mediation is a process that starts with convening the parties and explaining what the process is.

It involves getting them to engage me, which means signing a contract to hire me as their mediator. I provide that contract with the terms for our negotiation. For example, some terms might be that it's okay to shout, but not over someone else.

You can't say anything abusive to anyone else, and the parties agree not to walk out of mediation unless I say it's reached a stalemate. Arbitration is very different; it's like a court process.

It begins with someone filing an arbitration demand, similar to a complaint filed in court, which asks for a particular type of relief. Parties get into arbitration either because a contract has an arbitration clause or they agree to go to arbitration.

There are many reasons to agree to arbitration. First, it's private instead of public, so you don't air your disputes publicly. Because it's private, no record is made, meaning the result cannot be used in another case.

It can also be confidential, protecting things like intellectual property and trade secrets from disclosure. As part of arbitration, the process begins with the filing of the demand, followed by an answer or response from the other side, called the respondent.

We go through a process very similar to a court process. The parties agree on timeframes and exchange information, known as discovery. Sometimes I have to decide disputes over discovery, determining what information someone is supposed to provide.

I may also have to decide motions, such as a motion to dismiss or a motion from someone who believes they were improperly summoned into arbitration. There are also motions to get subpoenas to take the testimony of a third party.

During arbitration, we will have a preliminary hearing to set a hearing date for the merits and agree on the process. I supervise the discovery process in case of disagreements.

Eventually, there is a hearing on the merits where each party presents its evidence, again, similar to a court proceeding. They must present competent evidence, meaning someone must be testifying about something they know and experienced, not just what they think. Experts can give opinions on technical subjects.

When it's finished, I have to make a decision as to who wins. That's the big difference between arbitration and mediation. In arbitration, someone wins, and someone loses; I issue an award.

In mediation, the parties can reach a solution completely different from what they could obtain in arbitration or court. They can use their imagination to find a solution that works for them.

For example, if two companies are doing business and have a dispute over a shipment, they might resolve it by making accommodations in future shipments. This could involve payment terms that work better for their ongoing business relationship.

This kind of solution is obtainable in mediation because parties can agree on anything they are willing to agree on. You cannot order that kind of solution in arbitration or a court.