Perspectives from a Mediator/Arbitrator

Tuesday, June 13, 2006

Perspectives from a Mediator/Arbitrator goes live!! A review

Last night about 45 members of the Ontario Bar Association gathered at the Imperial Pub for "A Beer and a Chat with the Arbitrators". I was pleased to be asked to be one of the arbitrators. I had never been to the Imperial Pub before which is owned by Elaine Newman's, another Ontario-based arbitrator, family. She was a wonderful and gracious host. Laura Trachuk, another Ontario-based arbitrator, moderated the discussion brilliantly among me and my two fellow panelists - Jane Devlin and Paula Knopf - two more Ontario-based arbitrators. Just realized that I was the only male among those arbitrators! Bill Kaplan was supposed to provide gender-balance and his wit and wisdom to the panel but was unable to extricate himself from central bargaining between CUPE and the Ontario Hospital Association.

Interestingly, the chat which lasted about an hour was very much about relationships and boundaries. What should or should not a mediator/arbitrator do in various situations? There was a fair bit of discrepancy (fair bit of commonality as well) among the panelists on issues like - do you in a med/arb tell one side or the other that if the arbitration happens that the party will lose? Do you draft the minutes of settlement? Do you push parties to start exactly at the starting time of the hearing?

For me, the manner in which I act as mediator or mediator/arbitrator is based on the working relationship I have with counsel. Sometimes, even in the first meeting, counsel and I can develop a quick understanding as to how each other are going to work and I can do whatever I think is necessary to "get to the deal". Other times, even with counsel that I have worked with countless times, I have to proceed cautiously and carefully so as to not "step across the line". My final statement at the chat was a plea to counsel present (and hopefully to others) to trust us and tell us where the boundaries are - we are not "one trick ponies". We are there to serve the parties and not the other way around - "speak with us, trust us, use us!!" Let us know the boundaries, help us to develop a relationship based on trust and enable us to assist the disputants resolve their dispute.


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