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SELECTION of an ARBITRATOR |
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Call 818 707 8177 or 650 324 4007 For A Free Consultation |
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Credentials vs. Skills
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Vast numbers of “practitioners” have attempted to enter the field of arbitration over the past several years. The litigious nature of American society combined with the ever crowding of court dockets has had the effect of creating a large gap of experienced professional advocates. Among the participants in the field, we now have: judges (retired as well as those still on the bench), attorneys many of whom have had less than successful law careers, counselors (usually therapists who have expanded their practice to include divorce situations), and finally professional mediators/arbitrators/negotiators. Let’s touch briefly on each group.
Judges - experience on the bench DOES NOT necessarily translate to success in
arbitration. The Harvard or Stanford law degree affixed to the wall of a large office, the 15, 20, or 25 years of supposed experience, the last 10 of which have been spent on the bench in municipal or superior courts; are all quite impressive. However, past experience has shown that the more education an arbitrator has, the lower the success rate he/she experiences in reaching mutually agreeable solutions to people’s problems. These individuals understand the law inside and out, but spend a great deal of time covering the minutia involved in a dispute. They are also not necessarily trained in solving problems but are, in actuality, more qualified at refereeing disputing parties. And while acting as peace-keepers may seem valuable, it does not get the problem solved. Many of these individuals have seen and heard it all. Thus lowering their overall ability to empathize with the parties in a dispute and thus causing the parties to wonder whether or not this individual even cares about their particular situation. With one or both parties perceiving a lack of caring from an arbitrator, it becomes VERY difficult to resolve a dispute in a manner believed fair by all parties.
Lawyers - attorneys are attorneys. Attorneys were educated and have been paid to deal with the law. Asking an attorney to perform effectively as an arbitrator is no different than asking a police officer to perform as a district attorney. One enforces the law; the other interprets and applies the law. While having the potential to understand legal matters, good attorneys are usually too busy being good attorneys to be engaging in the totally separate field called arbitration. As for bad attorneys . . . well, we probably don't need to address these individuals.
Therapists or Counselors - the therapist turned mediator. This individual obviously has little if any value in arbitrating the litigated case (civil disputes). However, where he/she has been actively involved in attempting to counsel married couples, this individual may prove to be the path of least resistance in arbitrating divorce situations - especially where the husband and wife are in general agreement regarding most issues. Professional negotiators? No. In a position to possibly resolve issues between a divorcing couple? Possibly. Again, we would ask, does this person know the costs of a divorce dispute? Does this person have the software programs (all arbitrators should) used by the courts to calculate alimony and child support? (and remember child support cannot be waived) Is this person a problem solver? If they could not solve the couple's problems during marriage, will they be effective at reaching a resolution that is fair. ALSO VERY IMPORTANT: counselors at some point usually become biased towards one party or another making it extraordinarily difficult to be neutral during an arbitration event. Finally, good therapists do not usually have the time to devote to a second full-time occupation.
The Arbitrator - the professional arbitrator/mediator. The professional arbitrator/mediator is someone trained in relationship, someone trained in problem solving, someone trained in recognizing puffing versus reality. Information about a case should be quickly assimilated by virtually any professional. It is the ability to take that information and translate it into a workable and fair solution which requires skillsets many practitioners in this industry are lacking - no matter what their title. Lastly, selling the “fair” solution to a party who thinks they have been dramatically wronged takes even greater expertise and finesse. Are these the best people for every case? Usually.
A skilled, professional mediator can usually (in about 8 out of 10 litigated cases and 9 of 10 divorce situations) reach settlement in less than a day. |
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Knowledge vs. Results
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This is somewhat addressed in the first section. Knowledge is great. And it is essential that any person involved in arbitration be intelligent. However, the ability to quickly arrive at fair solutions and sell those solutions to disputing parties is equally important. As book knowledge increases, “relationship” appears to decrease. The ability for disputing parties to trust and feel an arbitrator cares in an unbiased manner makes all the difference in having the parties feel that the resolution was a fair, well thought out event. The absence of relationship will cause arbitration events to leave one or more disputing parties feeling that their needs were not understood, not cared about and not addressed in the final resolution. While the matter is now settled, all parties may feel they got the short end of the stick. |
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Expert In The Field vs. Expert In Dispute Resolution.
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Knowing the difference between one type of mechanical component and another is extremely important. Knowing the difference between an enforceable contract and an unenforceable is again, very important. Certain fields of endeavor, engineering for example, require such a high degree of specialization that only a true expert in that field would be in a position to judge (address) the merits/value of certain cases. However, the majority of litigated cases involve issues of equity (for example: the builder said the job would cost $20,000 then presented a bill for $60,000. Or, the seller of a home represented no defects but six months later it was learned that he/she had been told that a $45,000 retaining wall would have to be built to prevent the swimming pool from sliding down the hill.) These are a few examples of equity. An arbitrator makes a quick assessment of the situation, totals the approximate costs associated with litigating the case, arrives at a fair solution, and resolves the issue. We have just made a very complex transition sound fairly simple. For a professional, it can work this smoothly. For the improperly trained or the detail oriented arbitrator, these situations can result in all parties feeling they were treated unfairly. Experts make the right decision and each case stands on its own. |
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Leader or Facilitator
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Lead, follow, or get out of the way. Leaders lead. Leaders assist individuals who may not have access to the same information. The leader’s/arbitrator’s job is to gather enough information from disputing parties so as to be able to reach a fair, unbiased solution to the dispute. Facilitators on the other hand, allow things to move at their own pace. Oftentimes this results in a less than satisfactory or poorly thought-out solution. At 400$ or more, per hour, disputants and their representatives are looking for someone to LEAD. The parties need a person who will take charge and move things forward not someone who is just along for the ride. Does this mean an arbitrator’s job is to force whatever he/she can down disputing parties’ throats? ABSOLUTELY NOT. What it does mean is that, as a professional, the parties are looking to this prson for both information and guidance. A true leader provides this and arrives at solutions that work. |
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Call 818 707 8177 or 650 324 4007 For A Free Consultation |
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