Arbitration and Mediation: Why I Do Both
By Tanya Tate
Amongst neutrals in the alternative dispute resolution (ADR) arena, there is often a conversation (or dilemma) about whether to work as an arbitrator, a mediator, or both. Many neutrals prefer to choose one or the other for a multitude of reasons. Some prefer the lack of deadlines and stress found in the mediation setting. Others are concerned that their rulings in arbitrations may alienate their client base – the attorneys. Some simply have a natural preference for one form of dispute resolution versus another. After wrangling with this issue for years, I ultimately made a conscious decision several years ago: to do both.
Arbitration and Mediation: a Natural Symbiosis
The way I see it, mediation and arbitration share a symbiotic relationship of sorts. There are tasks and functions that you perform as an arbitrator that, in my opinion, make you a better mediator and vice versa. Take subject matter expertise for example. During my fifteen years as an employment law and business law litigator, I was one of the rare (or perhaps odd) individuals who truly enjoyed legal research and writing. It was also that part of my practice that taught me the most about the legal issues I was working through and forced me to stay current on the law.
After working as a full-time mediator for about ten years, it was that aspect of litigation that I realized I missed the most. Arbitration reintroduced the research and writing component into my practice. As an arbitrator, it is incredibly important for me to feel confident that I reach the correct conclusion. The best way for me to feel confident that I have in fact achieved this goal is to research. This involves not just reviewing the cases cited by the parties, but also doing my own independent research and verifying my conclusions. Not only does my research ensure that my rulings in my arbitration cases are solid and well-reasoned, but it also provides me with an even more solid foundation and deep expertise from which to draw in my mediation cases.
Recent “new” issues that have arisen in my arbitrations, such as vaccine mandate cases, Federal Trade Commission (FTC) restrictive covenant issues, artificial intelligence (AI) in employment issues, and in-depth damages analyses force me to take deep dives into the ever-evolving law on these issues. This growing familiarity with these forefront issues has broadened my knowledge base so that I am a much more effective mediator in cases where these issues are at play. When I am very familiar with the statutes and case law at issue, I have more context when considering and evaluating the allegations made by the parties. This knowledge also gives me a strong foundation for “reality testing” with both sides and intelligently and confidently discussing possible legal outcomes and litigation strategies. Finally, possessing an in-depth understanding of the underlying law undoubtedly gives a mediator more credibility with the attorneys, which in turn increases the likelihood of resolution.
Arbitrating Makes Me a More Effective Mediator
On the flip side, as an evaluative mediator, it is critical that I listen to both sides, always considering and reconsidering each side’s positions. Mediation requires much patience and most importantly, excellent listening skills. The daily circular reasoning that is required of all mediators translates well to arbitration. It trains the arbitrator to sit as an open-minded decision-maker and to refrain from making a decision until the last post-hearing brief is filed. Jumping to conclusions is not a trait that anyone looks for in an arbitrator. Working as a full-time mediator helps prevent this from happening.
A mediator’s brain is trained to listen, evaluate, discuss, and then “rinse and repeat” all day long. Having a mediator who also works as an arbitrator all but ensures that your mediator will be trained to carefully, and without any bias, evaluate the merits of each side’s case, not just from the position of the parties or attorneys, but also through the lens of a potential decision-maker. I will sometimes warn a party in a mediation that an argument or set of facts that they are advancing would cause my “spidey senses” to tingle if I heard it as an arbitrator. This allows the parties and attorneys to consider yet another possible way that a third party might view their case.
As neutrals, it is critical that we continue to learn and to grow and to constantly hone our listening and communication skills. As Albert Einstein noted, “Intellectual growth should commence at birth and cease only at death.” This is so very true of continued growth as a mediator and arbitrator.
I of course recognize that many attorneys do find that choosing to only mediate or arbitrate is the right fit for them. For me, however, the challenge of working as both a mediator and arbitrator helps me perform better at both roles, and provides me with a rich collection of experiences from which to draw when serving in either role. I absolutely believe that doing both make me a more effective neutral.
**Originally published in the Daily Report and reprinted with permission.
About Tanya Tate
A member of the National Academy of Distinguished Neutrals, Tanya Tate is a seasoned and highly effective mediator, having mediated hundreds of cases in her career, the majority of them disputes involving employment law and business-related matters. Tanya is also a skilled arbitrator, with significant experience serving as both a solo arbitrator and on three-arbitrator panels. Prior to beginning her practice as a mediator and arbitrator thirteen years ago, Tanya represented both plaintiffs and defendants in cases involving employment law, restrictive covenants, trade secrets, contracts, torts, business litigation, insurance coverage, school law, premises liability, and personal injuries.