I’m a mediator and arbitrator based in Seattle,
Washington. I’m a full time mediator and arbitrator.
Today, I’m talking about arbitration, the second most popular form of alternative dispute
resolution to mediation. The only real similarity that arbitration
has to mediation is its privacy or confidentiality. While that isn’t guaranteed, most commercial
arbitration rules provide for confidentiality. Otherwise, it’s very different.
It much more resembles trial in a more private setting.
Testimony is taken under oath. There are evidentiary rules.
The parties have some latitude to agree on those rules, but it is a much more structured,
formal and usually binding process than mediation. Whether arbitration is preferable to trial,
often depends on the subject matter of the dispute.
The parties get to choose the arbitrator, and when they decide to arbitrate, or when
they contractually are obligated to arbitrate, they have the opportunity to choose a decision
maker or decision makers who have subject matter expertise in the nature of the dispute.
There’s no guarantee that a judge will have any subject matter expertise in any dispute
that comes before him or her in court. It can also be preferable and possible to
resolve a dispute much sooner via arbitration than court.
That may depend on arbitration management, although timelines can and are sometimes imposed
in arbitration agreements themselves. In other words, this dispute will be arbitrated
within 30 or 60 days, for example, by contract. Those provisions can be included in pre-dispute
arbitration agreements or in post-dispute arbitration agreements that are sort of custom
designed by the attorneys for the parties. Arbitration receives a lot of criticism online
and in the literature for simply mirroring the inefficiencies of the civil justice system.
To avoid that, to make arbitration efficient, requires management and much of that management
has to flow from the arbitrator or arbitrators. Often attorneys and their clients are incapable
of efficient case management, so it has to be imposed from the top down.
Experienced arbitrators know how to do it. They usually have rules.
The American Arbitration Association and JAMS are two organizations that have developed
and revised arbitration rules for decades. These rules, these and other rules, the Federal
Arbitration Act is another, empower arbitrators to control the process.
While I’ve mediated thousands of cases, I’ve arbitrated several hundred.
And the several hundred are not several hundred of the same kind of case.
I’ve acted alone; I’ve acted as a member of arbitration panels in business, real estate,
employment, maritime, personal injury, professional negligence disputes.
I’ve also received a great deal of high quality arbitration training from both JAMS and the
American Arbitration Association. The totality of these experiences have helped
me become, I believe, an able arbitrator. At the same time, with arbitration, there’s
necessarily a winner and a loser. And in any given case, the loser is usually
quite displeased, usually at some financial cost, and they are not likely to bestow accolades
upon the arbitrator. I’m no exception.