Everyone, it seems, wants to be an arbitrator or mediator. Most would prefer to have a career as a mediator. Why is that? According to younger lawyers and law students, it seems they think that litigation is “too competitive” or “too aggressive” or “too warlike.” They would prefer to have a career that is more “cooperative” or “collaborative.” Mediation fits the bill, because mediators help parties reach solutions without the fighting that goes on in litigation. Arbitration is somewhat less popular because the arbitrator must conduct a hearing, similar to a trial, and decide who wins and who loses. Arbitration is not a collaborative process.
Mediators do not need to decide the case. They just need to facilitate the process.
I have been a full-time arbitrator and mediator for nearly 20 years. For 20 years before that, I was a plaintiff-side personal injury (PI) lawyer. During those early years, I would often be asked to serve as arbitrator or mediator in PI cases. Eventually, I became busy enough doing those cases that I cut back on handling PI cases, although when the right case comes along even now, I will take it.
A few days ago, I had the opportunity to serve as a guest mediator at our local law school as two teams of law students negotiated the settlement of a mock case. Most of the students I spoke with said that they wanted to do some form of alternative dispute resolution (ADR) at some time in their careers. Several asked me how they could start and build an ADR practice.
My answer was that they should litigate cases for a few years or, if they did not want to be a litigator, they should at least develop some expertise in areas of the law and, later, use that expertise to begin mediating or arbitrating.
There is vigorous debate about the relative importance of an arbitrator or mediator having subject-matter expertise. Some argue, and I tend to agree with them, that a skillful mediator needs expertise as a mediator, and must simply possess the tools necessary to resolve conflict. It is true that in some arcane areas of the law, it would be desirable for the mediator to have some expertise in the subject matter. There is a reason, for example, that mediators in construction defect litigation often do nothing else. My view is that someone who has expertise in a particular area of law, but has not gotten mediation training, may wish that they had. Arbitrators, on the other hand, often decide cases in areas of the law where they have no expertise. They rely on the lawyers to educate them on the law.
As I said, I was picked to serve as arbitrator and mediator because the lawyers selecting me knew that I was experienced in the world of personal injury and insurance law. Lawyers often go with neutrals whom they know have expertise.
So, what should lawyers do to gain experience in mediation? The first thing is to take one of the many week-long courses in mediation that are offered by private companies, bar associations, or other organizations. I did a week-long course in San Diego several years after I had begun mediating cases. (That was a memorable week not only because of the training, but because I got to fly my Cessna airplane from Portland, Oregon to San Diego and back.)
I will repeat some of the advice I gave to the law students:
- Volunteer to do neighborhood mediation. My view is that once you learn to resolve disputes between warring neighbors, everything else is easy.
- Volunteer to mediate small claims cases. Courts are underfunded and over-crowded and rely on volunteer mediators to help with the small claims docket.
- Look for other volunteer opportunities.
- Join a state or local mediation organization to get to know other mediators.
- After getting training and some experience, find out if your state or local courts have a list of approved mediators to get referrals. The pay is often not a lot, but better than that of a pro bono volunteer.
- Research mediator opportunities with government agencies. Many state and local governments employ mediators on a contract basis.
I serve as chair of the Oregon State Bar Alternative Dispute Resolution Section. In that capacity, I have had the opportunity to meet mediators who work in a wide variety of settings: construction law, family law, labor and employment law and probate law, as well as personal injury and insurance law.
One trend that seems to be gaining steam is for state and local judges to start a career in mediation after retiring from the bench. If you want to do that, you will need to get elected or appointed judge and serve in that capacity for a few years. For a variety of reasons, litigants seem to think that judges make better mediators, simply because they served as judges.
Starting a career as an arbitrator involves some of the same steps, but there are more opportunities to get selected as an arbitrator than as a mediator. In Oregon, where I practice, any lawsuit filed for damages under a certain amount must go before an arbitrator before it can be tried in front of a jury. Displeased parties still have the right to a de novo appeal and take the case to a jury. Every jurisdiction has its own rules about mandatory arbitration.
In court-mandated arbitration, courts often provide the lawyers with five or 10 names of qualified arbitrators. The lawyers then can agree on someone among that group, select someone other than the arbitrators on the list, or strike names until only one remains. That person then becomes the arbitrator. Some lawyers prefer to use arbitrators they have not worked with before, even though they have less experience. Others prefer to work with arbitrators they know.
Once an arbitrator becomes well-known for being fair and impartial, they usually find themselves being selected more often.
About the Author
William Gibson is an attorney and neutral in Clackamas, Oregon, and is a past chair of the ABA Law Practice Division. He is the author of How to Build and Manage a Personal Injury Practice (ABA) and Flying Solo: A Survival Guide for Solos and Small Firm Lawyers (ABA).