Legal Blasts (and Unrelated Baseball Opening Day Memories)

When a dispute is in arbitration, and the arbitrator is designated, he or she is required to disclose to both sides all previous interaction he or she has or had with the clients and attorneys involved in the dispute so that the arbitrator can be removed if any conflicts exist. Most arbitrators understand and do this. However, some don't, and if they don't, it can become a real problem for the litigants. Why is that?

First, because the losing party may then have grounds to set aside the arbitration award based on an undisclosed conflict. Moreover, under the recent case of La Serena Properties v. Weisbach et. al. 2010 DJDAR 1101 (2010), the prevailing party, who no longer is the beneficiary of the arbitration award, likely will have no remedy against the arbitrator who failed to disclose or the tribunal with whom the arbitrator is affiliated. That is because the holding of that case gives the arbitrator and the tribunal with whom he or she is affiliated absolute immunity for the failure to disclose.

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A close friend of mine, who happens to be a mediator, asked me what are the key things I look for in a mediator when recommending one to my clients and, what in my opinion, makes a good mediator who I will use again. Although I keep a list of mediators I like, I never actually itemized the characteristics in my mind, which I consider in concluding why I prefer certain mediators and outright object to others.

When he persisted in making me think about and reveal to him the characteristics that caused me to either recommend or reject particular mediators, I told him I would make that a blog topic, so here it is and thanks. He knows who he is. (For those of you readers who have never been involved or have little or no familiarity with mediation, a mediator's sole task is to try and bring parties in a dispute toward resolution voluntarily. It is a very difficult job which requires great skill. What makes it more difficult is that the mediator cannot make either side do anything that party is not agreeable to doing).

Here is what I look for in mediator recommendation/selection, as well as two of my pet peeves.

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