Welcome to my fall newsletter! I hope you are enjoying our beautiful fall weather. Today I shall discuss the different hats that must be worn by the Mediator in the Mediation/Arbitration process.
Recently, I sent you my blog entitled “Mediation/Arbitration: Can this hybrid process provide Solutions for Sally and Harry in their Divorce?” Mediation/Arbitration is one of many processes available for resolving one’s family breakdown.
Continuing from that, I shall discuss with you today the different hats that the Lawyer – who has been retained by the parties to be their Mediator – must wear, at the beginning of the Mediation process, and then change to a different hat as the process changes to an Arbitration.
I’ll use our old friends Harry and Sally as the parties here. I encourage you to read my earlier blog as Part 1 of my discussions about the Mediation/Arbitration (Med/Arb) process. This is now Part 2.
The first stage of the Mediation/Arbitration process is the Mediation stage.
In this regard, Harry and Sally meet with Mickey Haller (whom some of you may know as the ‘Lincoln Lawyer’!). They decide to retain Mickey as their Mediator to help them resolve the issues in their marital breakdown.
Once retained, Mickey must take off his Lawyer’s hat and replace it with a Mediator hat, in order to effectively mediate for the parties.
Note: Sally and Harry each have decided to retain a lawyer to represent them. In that regard, Sally with her lawyer and Harry with his lawyer will appear before the Mediator/Arbitrator.
In Mediation, Mickey works with the parties and their lawyers with the objective of the parties reaching Agreement on all their issues. As their Mediator he will consider – in addition to the law – the interests, wants and needs of Harry and Sally and their children.
It is important to note that Mediation is very different from the Court process, where the Judge must consider only the law and the proven evidence. Similarly, in the Arbitration process, the Arbitrator must consider only the law and the proven evidence.
In our case, Harry and Sally are unable to reach Agreement on their issues. Therefore, Mickey terminates the Mediation Process, and the process transitions to an Arbitration Process.
Now, Mickey must – again – change hats. This time he must put on the hat of an Arbitrator.
In the Arbitration Process, Mickey must strictly follow the Rules of Evidence – including the Rules against Hearsay – and consider only the proven facts of the case. He must disregard any comments that have been previously made by the parties or their lawyers in the Mediation phase, as many of these discussions were opinions or hearsay, and not evidence in accordance with the Rules of Evidence.
The Arbitration Hearing is much like a Court Hearing, and must follow a set of prescribed Rules, except that the parties have much more of a say in the timetable of the Arbitration Hearing.
During the Mediation, our Mediator Mickey often took the liberty of expressing opinions as to how Sally’s and Harry’s case might go. However, in the Arbitration, Mickey must disregard all opinions, hearsay and unproven evidence that he heard or gave during the Mediation phase. He must consider only the proven facts and the evidence.
Mickey may, as a result, come to a completely different decision than he might have ‘expressed’ or implied during the Mediation Phase.
In order to be effective in the Mediation/Arbitration Process, Mickey must maintain the highest standards of ethics. He must remain neutral in both processes. He must be able to separate what he heard in the Mediation phase, from what he will now hear in the Arbitration Hearing.
It is important for the Reader to note that, and the end of the Arbitration Hearing, the Arbitrator – Mickey – will make is an Order that is binding and final on Harry and Sally, just as in a Court Order.
Therefore, it is incumbent upon the parties and their lawyers to interview, consider carefully and ultimately choose the “right” Mediator/Arbitrator for their matter. This person understands the challenges that this hybrid process poses, and is acutely aware of the three changes in hats required, in order to ensure that the Med/Arb Process is effective, fair and satisfactory to both parties.
In my Master’s of Law studies in Alternative Dispute Resolution (ADR) – which I engaged in as ‘post-graduate work’ subsequent to my Law Degree – I had the opportunity and time and indeed it was my goal, to reflect on the serious ethical issues that a hybrid process such as Mediation/Arbitration presents.
The Mediation Process is fundamentally different from the Arbitration Process and the Mediator/Arbitrator must ensure that he/she wears a separate hat for each of these processes.
As a senior Family Law lawyer, and with my education and experience in ADR processes – of which Med/Arb is one – my practice focus is on acting as a Mediator in Mediation matters, and as a Mediator/Arbitrator in Mediation/Arbitration matters.
In my Med/Arb practice, I bring my many years of expertise in Family Law, plus my understanding garnered through my intensive ADR studies, to the table.
Feel free to schedule a meeting with me if you wish to explore the possibility of utilizing this process in your matter.
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med).
© Anne E. Freed, October 2023