Q&A: Mediator & Arbitrator Matthew Thiry
What does it take to resolve an unyielding dispute?
The ability to have the parties look beyond their emotions. Disputes are often unyielding as a result of the deep emotions tied to the issues. Being able to have a party look at the issues in a practical manner is key. However, getting to the practical view of the issues cannot be done without properly acknowledging the emotional undertones and assuring the parties that you understand that aspect of the case. Looking at a case from a practical point of view is not to be dismissive of the emotional aspects of a case, but to acknowledge those emotions and work through them until the practical matters and potential acceptable solutions can be addressed.
What do you say in the opening session to orient the parties to the process and get things off to a good start?
Getting things off to a good start often comes down to building rapport and the foundation of trust in the mediator and the process. I look at the opening session as an opportunity to attempt to diffuse emotions. It is not uncommon for the opening session of mediation to be the first time the parties have sat in a room together since the inception of the dispute. Both sides bring with them their perspective on the situation, as well as frustrations associated with the dispute. I take a moment to be sure everyone is introduced. After that, I aim to explain the mediation process to the parties. While their lawyers have likely already explained the process before, it is good to remind everyone why they are in mediation, what to expect through the process, and what benefits the process can provide that litigation cannot.
What do you say to a party or attorney who wants to “walk out” because things are not going well? Are there times when a “walk out” is effective, or even necessary, for a party to make an important point?
There is a big difference between a party or attorney wanting to walk out after the first offer is made, as opposed to the party or attorney that has participated in the process in good faith for a reasonable amount of time without feeling the other side is reciprocating.
For those looking to walk out early, I try to remind them why they are mediating, how resolution today is likely better than litigation tomorrow, and how this may be their last opportunity to control the outcome of the dispute. I would ask that they give the process a little more time. After doing so, if they continue to feel that walking out is appropriate, they can walk out knowing they gave the process an opportunity to succeed.
For those that have participated in good faith for a reasonable amount of time without feeling the other side is reciprocating, I encourage them to at least allow me the opportunity to convey to the opposing party that a “walk out” is imminent. Ultimately, if insufficient movement is going to be forthcoming, at least the parties “walk out” with more knowledge about the case and/or the perception of the case from the other party’s point of view than was known before mediation.
Mediators and the attorneys representing the parties are mostly familiar with each other and can appear, to the parties, to all be members of the same club. How do you make the parties, who can feel like an outsider, comfortable in what is potentially an unfamiliar environment?
In a situation where there is familiarity, it is important to let the parties know that it is to their respective advantages, i.e. to the advantage of resolution, that there is familiarity and civility. Letting the parties know that you expect that their respective counsel will vigorously represent their interest, but that their ability to have a conversation and familiarity with each other should be viewed as a positive.
Parties often see friendly conversations with opposing counsel as weakness, or friendly conversations with the mediator as an indicator that there is a lack of neutrality. Civility is an asset, not a liability. Parties can be reassured of this and can be assured that your familiarity with either party does not impact your neutrality by how you handle yourself in the initial conversations (both in joint session and separately). Counsel can help by preparing their clients for this ahead of time; however, it is important that the mediator reinforce his or her neutrality, respect of confidentiality, and desire to help all of the parties reach resolution.
“War at all costs” usually results in war at all costs. In litigation, when two good attorneys are involved on opposite sides of the case, the parties usually receive the unknown benefit associated with counsel cooperating and being professional. This benefit often assists in time and cost savings. In addition, this also provides a better environment for resolution. Civility goes a long way in setting the groundwork for successful resolution.
A carefully drafted arbitration clause is important in the arbitration process. What factors should attorneys consider in drafting arbitration clauses in business contracts?
Before drafting, know the purpose and scope. Consider the “why” and the “what.” Why is it that the parties want to arbitrate? What is it that the parties want to arbitrate? Those answers provide framework for the clause. As the answers to those questions usually depend on the circumstances of the relationship of the parties, arbitration clauses should rarely be boilerplate.
In my opinion, arbitration clauses are a balance between the desire to have certain disputes resolved through arbitration and the desire to draft for every contingency and every possible aspect of the arbitration. The clause needs to contain enough specificity to clearly define its scope and successfully direct the matter to arbitration; however, attention needs to be given so that the clause does not become unwieldy or set forth such specificity that compliance becomes impractical (e.g. arbitrator selection criteria that are so narrow that very few, if any, arbitrators can satisfy the criteria).
How can attorneys make the most of the mediation session?
Preparation is the key to making the most of the mediation session. Preparation comes in many forms. Knowing your case, the applicable law, what solutions you would like to attain, etc. are all important aspects of preparation. However, in my opinion, the most important part of preparing for mediation is setting your client’s expectations. If attorneys take time to explain the process to their clients, even if it is merely a review, that is a great start. However, an often overlooked aspect of preparation is helping your client understand prior to mediation that being willing to negotiate, speak with opposing counsel, and acknowledge the other side’s arguments and points of view is not “selling out” the client or somehow conceding that the attorney does not believe in his or her case. Mediation is not closing argument to the jury; instead, it may be the client’s last best hope for avoiding the cost and uncertainty of having to make such an argument.
How can attorneys navigate the arbitration pre-hearing process?
Having an agreed upon path for the process helps everyone navigate. While an arbitration agreement may contain many aspects of the process, it is rarely the case that all aspects of a matter can be drafted into the agreement. Moreover, by consent of the parties, even the aspects contained in the agreement can be changed. Having a conference to address scheduling, scope, and process takes the guessing out of the arbitration process and allows attorneys and their clients to know what to expect next.
There are lawyers who think unless resolution is assured, alternative dispute resolution will delay a trial and increase costs. How would you respond to this view?
In most cases, any delay or increase in costs are offset by the potential to resolve the case. Even without resolution, there are valuable takeaways provided by mediation.
In many cases, attorneys are going to be forced to mediate before being placed on a trial calendar. As such, trial is not delayed by mediation. However, even if that were not the case and mediation would result in a slight delay associated with the trial, the opportunity to control and craft the outcome without being forced to undertake the unpredictable nature of trial outweighs both delay and costs. If a dispute is resolved at mediation, not only is trial avoided, but so too is the likely appeal that will follow the trial.
Even if mediation does not result in resolution, mediation provides parties and their counsel with insight into the heart of the dispute. There is potential for the parties to find out that certain facts and issues really are not in dispute. It is possible for the parties to achieve savings by finding at mediation that certain matters can be presented via stipulation, as opposed to presentation of evidence at trial. Moreover, mediation provides an opportunity to appreciate the strengths and the weaknesses of your case, which can be extremely helpful in subsequent trial preparation.
What are your thoughts on mandatory arbitration agreements?
In order for an arbitration agreement to be enforceable, it would necessarily require the parties to arbitrate. Otherwise, it would be at the election of the parties after a dispute arises to determine whether to arbitrate. It is often less difficult to agree to arbitrate before the parties have a dispute (i.e. when they are in the mood to agree, as opposed to disagree). If the parties have bargaining power, know they prefer to arbitrate their disputes, and define the scope of their arbitration provision accordingly, then the prevailing trend is to enforce arbitration provisions. Absent circumstances where one of the parties is unsophisticated or is otherwise in need of the court’s protection because of the absence of bargaining power, if parties agree to arbitrate, they likely will be forced to arbitrate. In the end, an arbitration provision is a contractual term, and is and should be enforced accordingly.
How can attorneys effectively prepare for arbitration hearings?
Attorneys can often effectively prepare for arbitration as they would prepare for a bench trial. However, it is also important to keep in mind that arbitration is not a trial. The scope of the dispute may be limited, the time may be limited, the rules may be different (e.g. the rules of evidence), etc. Preparing for the arbitration is often guided by the scheduling order set forth early in the process. As that order is in place early on, counsel can refer to it to guide their preparation. Moreover, counsel should be prepared to immediately address issues that could otherwise be preserved for appeal at trial. The parties’ appeal rights are often extremely limited. In other words, if it is important to the decision, have an alternative plan to address the issue if your initial plan does not play out as you had hoped.
Matt Thiry, Esq. is a mediator and arbitrator in Atlanta. He specializes business, fiduciary, real estate and probate. To schedule a mediation or arbitration with Matt, please call 888-305-3553 or visit his online calendar.