I once had a business partner (inherited) who I loathed. We got along well enough to build the project we had, make it work and then he bought me out. Then I got away from the bastard. A year later he called. “Hey! I am having trouble with the tenants. You met ’em. You wrote the leases. Leases require arbitration to settle any disputes. Will you arbitrate?”

“Sure. I guess. If they’ll accept me. What is the problem?”

“I have lots of problems with lots of the tenants. So, a single tenant tells you his issue. Or I tell you my issue with them. You listen to both. Maybe ask a question. Then you decide the solution. You are the judge. We are both obliged to do what you say. I have about ten disputes to settle. They said they wanted you because you wrote the leases.“

I did that chore for him and them. It was fascinating. I loved doing it. So, after some investigation, I enrolled in a series of law courses so that I could apply to be a chartered arbitrator. An arbitrator is essentially a private judge. Not all arbitrations are settled by applying the law but the majority still require legal writing (the decision) and administrative legal procedures at the very least. One really should know the basic rules of evidence, too. Principles of Natural Justice are also helpful. Ethics don’t hurt, either.

The occasional application of Occam’s Razor also helps cut through the often rambling babble of the disputants.

Arbitration can, theoretically, be as simple as, “Hey! Dave, you flip the coin. I call heads. He called tails. We don’t trust one another to even flip the coin. You flip it. You read it.” Of course, most arbitrations are much more detailed than that and a good working understanding of Administrative Law, Contract Law and a few other specialties (Family Law, Labour Law, etc.) are often required.

Basic fundamental: Arbitration is all about facts

In fact, after a bit of experience (not enough) I became an associate of the British Columbia International Commercial Arbitration Centre (BCICAC) for a few years. I was basically just on their list. The government created the BCICAC to attract international contract disputes. I never achieved that international arbitrator status (never picked from the list) altho I occasionally got a med/arb case when cultures clashed.

Med/arb is the description given the process that combines mediation for awhile and then, after that preset time allocation for mediation is over, a decision is rendered by the mediator-turned-arbitrator. At the time, there were only five professionals in the field with charters in both disciplines. Some great stories and a helluva lot of insight into different cultures came from those cases.

I was in year one of my law studies when the same original bastard called again. “Hey, Dave. My wife and I are divorcing. We’ve spent almost $100,000 on lawyers so far. It’s not working. Will you arbitrate the divorce?”

I knew enough by then to ask the right questions. Not every dispute is do-able by ADR. So, I asked and he answered. But I also knew that I hated him and I was quite fond of his wife. There is a potential for bias there……..

“Well, OK, but before this goes one step further, you should know that I don’t like you. Not a bit. But I like her. I think she is great. I am NOT saying that I would act unfairly but that bias has to be stated up front to both of you.”

“Yeah. I know. But I also know that your bias will not affect your judgment.”

“Wow. That’s the first thing you have ever said to me that I like. OK. I’ll do it if your wife says it is OK.”

“She already said OK. We both wrote down ten names we thought might be good. Yours was the only one common to both lists. But don’t let it go to your head. You were last on both of our lists!”

After a few days he called and said that he appreciated my honesty about my bias but now wants his lawyer to sit in. And, when he told his wife, she said, “I want my pastor to sit in, too.” And so it came to pass that I had the senior partner from one of Vancouver’s biggest law firms together with an Anglican minister (then in Shaughnessy) sitting in on the equitable division of a rich family’s estate. They call that a tribunal. It was also kinda fun.

So much fun, in fact, that the lawyer soon asked the minister and me to join him on another case involving a very throw-back-style religious community and one of their members in conflict. That one was straight out of a movie. I won’t bore you with the petty dispute so common in tight-living communities but I will share the very odd solution process.

The three of us heard the case. Took two days. But we were not really friends and didn’t hang around together and so afterwards, we charged each other with writing the judgement (called an award) and then getting back together to come to a single decision that all three of us could ethically deliver with one voice.

We separated for a week. The lawyer went in an odd direction. He kinda decided that a lot of religious rules and such were involved and his award was very Christian-like. Quoting the bible and all that. The minister, equally as oddly, went all legal on us. He cited old British society and private club laws and bylaws. And, of course, I was different again. After a few hours we were all in agreement and I wrote it up.

I tell that story because we were charged with a very common and human conflict that broke a rule or promise or behavioural norm and even got destructive, nasty and personal. The ‘LAW’, as we all know it (from movies), was not practically applicable. This was a real combination of counseling, contract laws, promises, Christian forgiveness and, mostly, trying to heal their relationship. We arbitrated, mediated, counseled and advised. Then we wrote it up as an award – an order.

Basic learning for me: Mediation is all about relationship.

And so I went into another two years of learning Interest-based mediation techniques.

Fascinating stuff.

Last bit of resume’ trivia: I was the chief mediator for the Ministry of the Attorney General for four years.

If this is working for you, I’ll tell you more…..