Schreiber Law Firm
Schreiber Law Firm is committed to providing exceptional representation to its clients.


What We're Up To. 

ADR Tip: March 19, 2019

Confidentiality is one of the most important features of mediation and is critical to a successful resolution. Parties and litigants must be able to rely on the confidentiality of the process if they are going to be candid with the mediator about settlement positions, strategies and other issues. 

Recently, I have both witnessed and heard stories of lawyers and/or parties texting one another during the mediation. This practice should be addressed at the beginning of each mediation so that all participants understand that disclosing confidential communications can impede the ability to settle the case. 

Confidentiality plays an important role both in the joint sessions involving all of the disputants at the mediation session, as well as in private caucuses which the mediator may have with one or more of the parties during the course of the session.  A mediator will seek openness and candor, particularly in such private caucuses, and it is often confidences that are shared in these private caucuses that are most helpful to the mediator in assisting the parties in sculpting a resolution that meets the needs of everyone involved.

Thanks for reading and I hope you will consider me to mediate your next case. Thanks, Allen

Read More
Taylor AkersComment
ADR Tip: March 5, 2019

I love to fish in the Chesapeake Bay and used to go often with my father-in-law. He was the classic fisherman who would drop a line and if he didn’t immediately catch a fish, would pull up his line and try another spot. This funny illustration of “anchoring” in the right spot came to light again in a recent mediation. The plaintiffs started the mediation with a demand figure that was easily four times higher than their settlement goal. Consequently, their demand enlisted an offer from the Defendants that was equally unrealistic.

From my years of experience, I have found that when parties reasonably anchor initial demands and offers, there is a better outcome for all parties. Making the first offer or demand sets the baseline for the rest of the mediation. Just as an anchor keeps a boat close, numerical anchors keep subsequent judgments closer than they might otherwise be. Anchoring your numbers at the start of the mediation process might lead to a better result. Even if a plaintiff lawyer makes a demand at the upper end of their range and the defense lawyer makes an offer at the end of their range, there is a “zone of potential agreement” (ZOPA) created by these moves. Parties that negotiate within the ZOPA tend to get the results that they want more frequently than those that wandered outside the parameters and anchored like my father-in-law. 

If you need a mediator or arbitrator for your next case, please call me. Thanks, Allen. 

Read More
Taylor AkersComment
ADR Tip: February 19, 2019

Mike Ford, president of the Alabama Academy of Attorney Mediators, mailed our February newsletter last week. He referenced us to a book by Annie Duke, Thinking in Bets: Making Smarter Decisions When You Don’t Have All the Facts. Throughout her book, Annie analyzes the concept of hindsight bias.

Hindsight bias, also know as the “knew it all along” phenomenon, is defined as the belief that an event is more predictable after it becomes known than it was before it became known. I have experienced hindsight bias in several mediations and most recently with a case involving a serious workplace injury. In this case, a safety guard had been removed from a machine that the plaintiff was operating on and the plaintiff was injured. During my discussions with the parties, we all discussed hindsight bias. We considered whether the jury would overcome the evidence. Whether or not conduct is wrongful is likely to be determined differently by one person making the decision before the fact and the other making the decision after the fact.

One example Annie references in her book is from Super Bowl XLIX. “Seattle was behind by 4 points but had the ball on the Patriots’ 1 yard line with 26 seconds left to play. Pete Carroll signaled a pass. The pass was intercepted. The Patriots won. With Marshawn Lynch in the Seahawks’ backfield many criticized the call. But statistically there was only a 2% chance the pass would be intercepted. It was perhaps a good call with a statistically improbable but bad outcome.” 

Read More
Taylor AkersComment
ADR Tip: February 5, 2019

The technology revolution has significantly changed the way in which we do business and socialize. FaceTime, Skype and videoconferencing are some of the most notable advancements. 

Throughout this past year, I have finally started to see technology and mediation come together to create a new type of mediation: e-mediation. Unlike traditional mediation, e-mediation does not require physical presence of the parties. The entire procedure takes place online. Parties avoid unnecessary travel, saving all parties time and money. With e-mediation, your clients can choose the place and space they feel most comfortable. 

In my last blog I announced my affiliation with The Neutral Solution. One of the best advantages of TNS is the ability to explore these new technologies as they apply to alternative dispute resolution. If you want to learn more about e-mediation and my firsthand experience, call me. 


Read More
Taylor AkersComment
ADR Tip: January 15, 2019

After years of planning, we are officially launching The Neutral Solution- a new community of mediators and arbitrators serving the State of Alabama with offices in Birmingham, Huntsville, Montgomery and Mobile. Our Birmingham office is located in downtown Birmingham, at 22nd Street and 1st Avenue North, and construction is soon to be completed. The building is designed specifically for mediations, with the latest technology integrated into conference rooms and plenty of comfortable working space. 

Currently, we have over 20 amazing Neutrals in a wide variety of specialties. Please check out our web page  One of the best features of our website is the online calendaring. I urge you to go and see how easy it is to schedule your next mediation. 

Read More
Taylor AkersComment
ADR Tip: December 14, 2018

I recently attended a divorce and family mediation seminar hosted by Troy Smith ( The course is 40 hours and is excellent. At the end of the last day, everyone in the class had to play a part in a mock mediation. I was randomly selected to be the mediator. 

Even though I have been mediating since the mid-90s, I was petrified as I began this pretend mediation. I was anxious because I was completely unfamiliar with the subject matter. While I did feel better after the mediation started, this event perfectly illustrated the importance of using a mediator with practical knowledge of the practice area in dispute. 

Read More
Taylor AkersComment
ADR Tip: November 9, 2018

Last week I was involved in a multi-day mediation which was a second attempt to resolve an eight year dispute. At the time of the first mediation, the court had not ruled on pivotal discovery and evidentiary issues. By the time the parties appeared at the mediation last week, the demand had drastically increased based upon the court’s rulings. I was struck with the realization that the parties neglected to envision the impact of the judge’s decisions.  For both parties, the timing was everything.

I recently read an article that explores timing on a variety of issues such as discovery, insurance coverage, business planning, and the inevitable “end of the year”. As we race towards the close of 2018, if the time is right for you to mediate I would welcome the chance to resolve your dispute. Allen

Read More
Taylor AkersComment
ADR Tip: October 26, 2018

I used videoconferencing this week and was amazed at how much technology has changed over the last few years. Even though I was in Birmingham with one party and the other party was in New Jersey, it felt as if we were all sitting together at the same conference room table. 

I recently read an article that takes this videoconferencing concept to another level. Many companies are now conducting online mediations for work place and family conflicts. This process is generally conducted by email and telephone correspondence as opposed to video. The parties exchange their documents by email and the mediator guides the process. 

Early studies have found that online mediation is an effective tool for resolving disputes. It offers convenience and levels the playing field between all parties. 

I've attached a recent Harvard Law School article that you may find interesting. If you'd like to use online mediation or e-mediation for a dispute, give me a call. Have a great weekend, Allen.

Read More
Taylor AkersComment
ADR TIP: October 12

While most clients have seen a court room scene on the news or in TV dramas, clients generally have less experience and knowledge about mediation. In-house lawyers or adjusters participate in mediations frequently, but typically those outside of the legal profession are less familiar with the process. 

For clients that have never been to mediation, the lawyer is the client’s teacher. It’s important for lawyers not to assume what their clients know and don’t know about mediation. Giving your client a glimpse inside the process can not only put them at ease, but can also greatly increase the chances of resolving their case.

The client needs to know what will be expected at mediation. Will the client be asked to speak? What subjects will the mediator want to cover? Will all parties be in the same room? 

Read More
Taylor AkersComment
ADR Tip: September 28

The cartoon is too good not to use. We've all felt like the naked sheep, ha. 

On a more educational note, in past mediations I have encountered very accomplished litigators who have also developed excellent mediation skills. These litigators were not only skilled in advocating for their client's position but also skilled in finding areas in which both parties could reach a resolution. In mediation, what gets parties in "the zone" may entail a variety of factors that have nothing to do with the merits of the case. 

In the article below, Starr advocates that what lawyers should be doing in mediation is helping the mediator identify "the zone of possible agreement" (ZOPA) where none previously existed. In mediations, it's important for lawyers to think about outcomes which may even include things other than obvious ones. 

Read More
Taylor AkersComment
ADR Tip: September 14

Just the other day I was at a mediation and noticed that the attorneys had very different styles of dealing with conflict. I remembered back to one of Troy Smith's training courses where we discussed various conflict styles. If you haven’t attended one of Troy’s courses, I encourage you to do so. Everyone enrolled in the course took a test to help determine their individual style and I found the exercise valuable in relation to the practice of law. I wanted to share a similar test with you all this morning. 

There are no "right" or "wrong" styles of managing conflict and like being left-handed or right-handed, we develop an affinity for doing things in a certain way. Just as a left-handed person may have to do something with their right hand if necessary, each of us is capable of shifting conflict styles when needed. People also don't use the same style in every setting- some people may “accommodate” at home and “compete” at work.

Read More
Taylor AkersComment
ADR Tip: August 31

My son recently sent me a podcast entitled “Who Decides How Much a Life is Worth”?  In this excellent podcast, the well known mediator/attorney Kenneth Feinberg is interviewed about his involvement with several high profile cases, including the 9/11 Victim Compensation Fund.  In that case, and in many others involving mass killings, Feinberg was tasked with determining what a life is “worth” and ultimately, how much compensation should be paid to individual victims and/or their families, and conversely often determining whether ANY money should be paid.

I often  tell  parties, both the accused and the victim, that the hardest aspect of talking to clients about their personal situation is correlating that experience into dollars.  When you’re dealing with clients that are emotionally damaged, you must respect their individual feelings. 

Have a great Labor Day weekend and I hope your team wins!!   Allen.

Read More
Taylor AkersComment
ADR Tip: August 17

I saw an article this week on how to write an effective mediation summary. It reminded me of a recent case I mediated. One party sent me a mediation summary that was very lengthy and formatted. The summary included a copy of the complaint, motions for summary judgment and several depositions. The other party’s summary was two pages long and contained a detailed section with the strengths and weaknesses of the case. It also had a paragraph analyzing a helpful case and the attorney’s interpretations of the law. Although both mediation summaries were very helpful, the shorter summary contained the most valuable information.

If you currently use a format in drafting mediation summaries, be sure to include the sections I mentioned above. Include a section with the strengths and weaknesses of your case and any applicable law of significance. Finally, all effective mediation statements should include the current status of settlement negotiations.

Read More
Taylor AkersComment
ADR Tip: June 15, 2018

In past arbitrations, I have been referred to as “Mr. Arbitrator”, “Arbitrator Schreiber”, “Judge Schreiber”, “This Court”, “Your Honor”, “Mr. Schreiber” and “Allen.” I was probably called other things but thankfully those were out of my presence. I told my wife I particularly like “Your Highness”.  Ha!
I’m telling you this because it brings to mind an important topic- the skill set needed for arbitration is much like that required for an effective bench trial but there are differences.  Awareness of these differences is key to a good result.  
I remember someone telling me once “do not litigate, but arbitrate your claims at the hearing.” At an arbitration, always remember where you are.  You wouldn’t bring your golf clubs to the batter’s box so don’t bring your jury trial bag of tricks to an arbitration hearing.  Arbitrators are experienced and are often seasoned litigators.  The consensus is a professionally and expeditiously presented case, keeping fuss and fret at a minimum, and avoiding exaggerated hyperbole, emotion, or dehumanizing cross-examinations will win the day.

Finally, read the arbitrator and not your notes.  Pay attention to the arbitrator’s comments and body language.
If you need an arbitrator call me.  I would love to assist you and your client in getting your dispute resolved.

Read More
Taylor AkersComment
ADR Tip: May 4

It is hard to believe that my first mediation was over 20 years ago. It was a simple car wreck case and I remember it well. After the plaintiff's attorney gave his opening, the defendant's attorney got up from his chair and stated "this case is all about money." The attorney proceeded to throw $100 bill bundles wrapped together on the table. By the time the plaintiff's lawyer stopped him, he had thrown approximately 10 bundles on my conference room table. Needless to say, the temperament in the room was hostile and aggressive. 

This is just one example of why over time, our mediation culture has foregone joint sessions and opening remarks and has begun moving straight into settlement discussions. There is an ongoing debate about whether joint sessions and opening statements remain beneficial in mediations today. Some mediators believe that opening statements should be given in every case and others think you never need them. I'm a firm believer that opening statements depend on the case and the attorney. When delivered effectively, I find opening statements to be beneficial.  On the other hand, when not done correctly, they can doom the process. 

Read More
Taylor AkersComment
ADR Tip: April 20

This past week I attended an incredibly useful seminar conducted by Troy Smith with Mediation, Media, Inc. Sally Clark Bowers assisted Troy and both were fantastic. If you have not been to one of Troy’s seminars, I encourage you to do so.  

One of my biggest takeaways from the seminar was the difference between “positions” and “interests.” These concepts are very important while mediating and are rarely used correctly.

Positions reflect what we want as an outcome. The more we defend our positions, the more we hold on to them and along the way, our emotions begin to cloud our reasoning. Interests, however, reflect not only what we want as an outcome, they also reflect the reasons why our positions are important. Interests lie underneath what we say we want and reveal our hopes, needs and expectations.

Consider an example, there is a single orange left in a kitchen and two chefs are fighting over it. Time is running out and both chefs need the orange for the dishes they are preparing. They decide to split the orange down the middle and finish their dishes. One chef squeezes the juice from his half of the orange for a sauce he was making and it's not quite enough. The other chef has taken his half and grated the peel, stirring it into his orange cake batter. He too doesn't have as much as he would like. When considering the interests of both chefs, the better solution would have been to simply take the part of the orange they needed for their respective dishes. Instead, the chefs focused on each other's positions (the "what") and not on each other's interests (the "why").

To reach a mutually agreeable solution in mediation, it helps to identify your client’s interests and have them articulate what outcome is most important to them and why. This will likely open up other possibilities in settlement that could have been otherwise limited by your client’s desire to hold to certain positions.

As Troy explained at the seminar, mastering this “interests” analysis will help to improve not only your mediations but also work, family, relationships- everything.

Read More
Taylor AkersComment
ADR Tip: April 6

I recently came across an article about FBI Hostage Negotiator, Chris Voss.  The article discusses how Voss applies what he has learned in the business world to his negotiations with the FBI. There are several references to Voss’s book Never Split the Difference throughout the article, where Voss describes some of the strategies and tactics he uses while negotiating. Voss emphasizes that we are emotional beings and make emotional decisions and then try to rationalize those decisions. Throughout the book, there are compelling examples of how asking better questions, gathering more information and re-framing conversations can lead to greater outcomes.

In applying this to my own mediation practice, I had a plaintiff several weeks ago who told his lawyer that he would never settle his case for less than $500,000.00.  The plaintiff and his lawyer had met several times and couldn’t agree on a lower settlement number. The case involved a routine car accident and the facts of the case were simple. The subrogation amount seemed manageable and the plaintiff had made a good recovery. Ultimately, the case value was not near what the plaintiff thought he needed to reach resolution. So a mediation was scheduled.

During the first mediation caucus, I asked the plaintiff to explain why he thought his case was worth so much money.  I soon realized that the plaintiff had misconceptions about how the settlement money would be treated and that he didn't understand his outstanding medical bills. First, he was unaware that any money he received would be treated favorably for tax purposes. Second, he had unknowingly received a significant invoice from an out-of-state medical provider which, if owed, would greatly impact the amount of settlement.  After resolving these issues, the case settled.  This is just a simple example of the importance of re-framing the conversation to determine what is driving a person’s judgement.  
The most interesting take away for me from Voss’s book is that the better you listen, the more information you’ll receive and the better the negotiation will be. In the book, there are several basic mediation principles you’re likely to recognize (and are probably doing already) and these principles may give you additional ways to improve your communication skills. Overall, Never Split the Difference is a great read that is applicable to effective negotiation and is truly a noteworthy book about communication.

To Read the Full Article Click Here:

Read More
Taylor AkersComment
ADR Tip: March 23, 2018

When I was at the College of Mediator’s Conference, the other mediators were talking about the book Thinking Fast and Slow by Daniel Kahneman.  I recently had the opportunity to read it (although I confess I skimmed a few parts) and one of my biggest takeaways was the “anchoring effect.” The anchoring effect names our tendency to be influenced by irrelevant numbers.  When shown higher and lower numbers, individuals will give higher and lower responses.  As an example, most people, when asked whether Gandhi was more than 114 years old when he died, will provide a much larger estimate of his age at death than others who were asked whether Gandhi was more or less than 35 years old.

What is "anchoring?"

Anchoring is the cognitive bias that influences us to give much greater weight to the first information we receive.  This is an important concept to have in mind when navigating a mediation or considering a price.  For example, every time you hit a sale at The North Face, you experience the anchoring effect.  Say an item comes with a $50 price tag. That is the anchor, the first piece of information we have about this product. If it’s 20% off, we automatically think we’re “winning.” Like it or not, aware of it or not, our minds continually refer to that $50 price tag. Anything less is a deal. But imagine if you walked in the store and The North Face shirt was priced at $200.  You would immediately walk out because the price in no way reflects the value of similar shirts. This also happens in mediations where someone’s offer or demand is so unreasonable that it does not drop “an anchor” but merely triggers a knee-jerk equally unreasonable response. 

By making a reasonable offer or demand, parties create an anchor.  According to Lisa Amato’s attached article, “the reasonably aggressive settlement offer manages the other party’s expectations and guides the terms of the ensuing settlement discussion.  While the other party may dismiss the initial settlement offer, she will be forced to think within the parameters that have been set by it.

The anchoring effect doesn’t work if you don’t make your initial offer or demand a reasonable number.  If you make an offer or demand that is reasonable from the beginning, anchoring can be an effective tool.  Then, like our 20% example, the other side will feel that any concessions from our initial reference point are a “win” for them.   Anchoring won’t guarantee a win but it will make you more aware when you enter into any negotiation.  If you can learn how to use anchoring effectively, it could be very beneficial in arriving at a satisfactory result for your client.


Read More
Taylor AkersComment

Often cases can settle with early intervention by telephone or other electronic means.

I was recently contacted on a simple car accident case and was able to negotiate a settlement by telephone. I spent a fraction of the time it would have taken to assemble everyone in a conference room setting for a "traditional" mediation. Also, with resources such as FaceTime, Skype and other electronic forums, I had the advantage of viewing the plaintiff and defendant decision maker while also receiving the benefit of a cheaper alternative. 

The obvious definition of “e-mediation” is a mediation conducted by telephone or teleconference. In e-mediation, the mediator provides mediation services to parties located at a distance from one another. E-mediations can be a completely automated online dispute resolution system with no interaction from a third party at all. E-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance. Technology-enhanced mediations have proven to be as effective as traditional mediation techniques. 

Attached is a link to an interesting article that discusses e-mediations further. 

If you need help getting a case resolved and don't want to spend the money on a traditional mediation — contact us! 

Read More
Taylor AkersComment
ADR Tip- February 23

Med-Arb: Efficiency vs. Justice

By. Michael Erdle

I had the pleasure recently of co-chairing a one-day seminar on mediation-arbitration (med-arb), sponsored by the ADR Institute of Ontario, the Family Dispute Resolution Institute of Ontario and Osgoode Professional Development.

The program explored the question Med-Arb: Efficiency or Justice Compromised?

We were fortunate to have two thought-provoking keynote speakers and many very experienced panelists.

Warren Winkler, former Chief Justice of Ontario, recalled a number of efforts over the years to incorporate both mediation and med-arb into the justice system and talked about the resistance some lawyers and judges have shown to the idea of combined med-arb.

Stephen Morrison, a leading commercial mediator and arbitrator, spoke eloquently about the failure of the civil justice system to meet the needs of disputing parties for timely, cost-effective resolution of their disputes. The courts are simply too slow and too expensive for most people involved in business, family or workplace disputes. So ADR in general – and med-arb in particular – is increasingly filling the gap.

Med-arb is a practical response to the needs of disputing parties. It combines the flexibility of mediation with the certainty arbitration in a single process. When it works, it works well and parties are generally very satisfied.

But when it doesn’t work, there is very real potential for the process to put people in a worse position than they would have been if they had stayed in the court process.

Courts have generally accepted med-arb as a valid process for many years and have shown considerable deference to party agreements (or statutory requirements) to adopt this process.

But when a party is unhappy with the result they will challenge the process any way they can – usually alleging arbitrator bias, misconduct or some over-riding error of law. And it is often easier for a court to find a fatal flaw in a med-arb process that with arbitration alone.

med-arb is very common in family disputes and, as a result, many of the court decisions that have looked at med-arb are in that field as well. Family law is not my area of expertise at all, but I think it’s instructive to look at those cases, because the same issues apply to med-arb generally.

In McClintock v. Karam 2015 ONSC 1024 (CanLII), the court considered allegations of mediator/arbitrator bias. The court reviewed a number of comments made during the mediation phase and concluded that the mediator/arbitrator should be removed and new arbitrator appointed to conclude the matter.

The case involved a claim by the father that the mother was alienating the affections of their daughter, and an application to change the custody arrangements.

The mediation didn’t resolve things, and the mediator/arbitrator set a date about two months later for an arbitration hearing. When the mediator/arbitrator refused a request from the mother’s lawyer to delay the hearing, the court application was filed to challenge both the jurisdiction to arbitrate custody and the arbitrator’s impartiality.

The court had no hesitation finding that the mediator/arbitrator had jurisdiction to deal with these issues. The court also acknowledged the validity of med-arb in theory, but expressed some strong reservations about how works (or doesn’t) in practice.

Mediation/arbitration is a relatively recent phenomenon. Used in the right circumstances, and with proper safeguards, it can be a useful means of dispute resolution. However, care must be taken to ensure fairness, and to ensure that a reasonable apprehension of bias does not arise. [1]

The court, citing previous decisions of the Supreme Court of Canada, said one of the considerations in determining reasonable apprehension of bias is the “special circumstances of the tribunal.”

…In this case, the tribunal is a mediator/arbitrator, and he has been constituted by agreement. It must be concluded that the parties, in agreeing to mediation/arbitration, would understand the nature of the process of mediation/arbitration. The informed person, in deciding whether there is a reasonable apprehension of bias, would also understand the nature of the process of mediation/arbitration.

In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions. [68-70]

The mediation had been recorded with the approval of all parties and the mother was able to provide the court with transcripts of the comments that the court ultimately found to show bias. For example:

You are riding a sinking ship. You need to take this very seriously now. Not – I’m not suggesting that you haven’t taken it seriously. You need to take it seriously in a different way. That’s where my thinking is right now – very transparent, very open.

From my perspective, there’s more than ample evidence and concern to demonstrate that knowingly, unknowingly, inadvertently, intentionally, you’re undermining the relationship of your daughter with her father. That’s a real concern.

It’s not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change. I have educated, coached, begged, cajoled you. I’m not gonna do any of that anymore. Now I’m gonna arbitrate and you’ll either do it or you won’t. Is that understandable? And I don’t say that facetiously or aggressively or – I do want you to appreciate that. You’re actively teaching your daughter to disrespect her father.

The court considered those comments and concluded that a reasonable person would conclude that the mediator/arbitrator had made up his mind about the behaviour of the mother (which she disputed), and that by refusing to grant a short delay for the hearing he had failed to give her a reasonable opportunity to be heard.

Philip Epstein, a prominent Toronto family mediator and arbitrator, was one of the panelists at the Med-Arb conference. He commented on the challenges that cases like this present for a mediator/arbitrator. He had previously commented on this case in his This Week in Family Law newsletter (March 23, 2015).

Epstein, and other panelists who work in the labour and commercial fields, said the challenge is to balance the parties’ expectations that the mediator will give them a full and frank assessment of the dispute, including the merits of their positions and the potential outcome if they do not settle, against the risk that comments on the merits of the case will be seen as pre-judging it.

In the newsletter, Epstein took issue with the judicial view that parties are more comfortable if a different person performs the mediation and arbitration function. In family law, at least, his experience is that parties prefer med-arb because it is more cost effective and there is a perception that mediation is more likely to be successful if the mediator and arbitrator are the same person.

While mediator/arbitrators must keep the two processes separate, they cannot erase everything they hear during the mediation from their minds. At the same time, Epstein and others who spoke at the conference said they think arbitrators are as capable as judges of putting the mediation out of their minds and deciding issues based only on the arbitration evidence and arguments. They make a conscious effort to do so and, when there is a significant time gap between the two phases, may actually forget much of what they have heard.

I have acted as mediator/arbitrator in a handful of cases, so my experience is much more limited than many of the commercial, labour and family mediator/arbitrators who spoke at the conference, but I agree with much of what they said about this problem.

One approach that was recommended to me some time ago, and I have used in my own cases, is to be very clear with the parties – and with counsel – that there is a difference between “information” and “evidence”.

Arbitrators, like mediators, get a lot of information about a dispute, through pre-hearing conference calls, pleadings, document and witness briefs. Each party will try to put their claims in the most positive light and paint a negative picture of the other side. This is just a normal part of arbitration advocacy.

Parties and advocates also try to influence the neutral during mediation, with information that may not be relevant to the dispute. One can’t refuse to hear this kind of information as a mediator. All one can do is ask: “Why are you telling me this? How is this relevant?”

Everything the mediator/arbitrator learns at the mediation phase – as with the pre-hearing stage of the arbitration – is information; it isn’t evidence. Some of it may become evidence later, if the dispute goes to arbitration. Some will not.

And even if it is part of the evidence, the arbitrator must still determine whether it is relevant and how much weight to give it.

If parties understand this, they may be more open with the mediator, but they will still be reluctant to make any admissions, about the facts or the law, that they think will hurt them if the dispute does not settle. And the mediator/arbitrator must remain very cautious about any comments or evaluation of the merits of the case.

Read More
Taylor AkersComment