Legal Blasts (and Unrelated Baseball Opening Day Memories)

Your case often is won or lost by whom you select to be your arbitrator. One of the principal advantages of arbitration, if not the most significant one, is that you can have significant control over who decides your case.

Your best course of action is to obtain your arbitrator by agreement. The next best alternative is for you to be able to control the selection process as much as possible if you cannot reach agreement. You rarely can do this with a trial judge, and in my opinion, no matter how proficient your attorney is at jury selection, your control over that process is significantly more limited.

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The mediator's compromise is generally a final attempt by the mediator to try and settle the case when an impasse still remains and the mediator has nothing left in his or her arsenal of tricks. What happens is that the mediator picks his or her optimal settlement number and communicates it to both sides privately. If one side accepts, they learn if the other side accepted or rejected. However, if a party rejects, they never learn whether the other side accepted or rejected. A good mediator will use the mediator's compromise as a final tool only when he or she genuinely believes it may be an effective tool to settle the case. Others, however, use it in desperation when they see the settlement prospects going south as a last ditch effort to try to make something happen that simply is not meant to happen at that time just to be able to say "I settled another case." What mediators need to know, however, is that good lawyers can always tell the difference. Even when employed by the good mediator, however, it has been my experience that the mediator's compromise generally does not effectuate a settlement. In fact, in all of the mediations in which I have been involved, and I am thinking hard, I cannot recall one where a settlement resulted from a mediator's compromise. So,to put it in baseball terminology, I am not a fan of the mediator's compromise.

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