Forgive me this brief explanation of the industry from which stories arise. Not everyone knows the difference between the three main dispute resolution processes. Without that knowledge, any soon-to-come anecdotes will just seem weird.

Arbitration is (usually) pretty black and white, fact-based, personal, it can be custom tailored somewhat, fast, cheap and enforceable by way of a court order*. Arbitration is conducted like a judge in a mini-courtroom (a boardroom) employing a series of simple rules around evidence and process, some of which can be determined by the plaintiffs. Lawyers are optional, not required.

*The courts recognize the role of arbitration and will enforce an award almost by rubber-stamp (if the arbitrator went off the sanity rails, or had a hidden agenda later found out, then the arbitrator can overruled – rarely happens). The court judge does not look at the case or the judgment, they just enforce the award (if process was complied with) by ‘order of the court’. Awards cannot be appealed. In other words: arbitrators are regarded by court judges as peer-judges.

The advantages of arbitration over court are, of course, huge. The main reason is that arbitration was designed to resolve disputes quickly, cheaply and in private. Very often in contract disputes, time is of the essence and litigation (with lawyers) takes a lot of time and money.

But court proceedings were never intended to be human-scale resolution pathways. They were intended to build the body of common law, to set precedent, to act as a guide for all society to know what will likely happen if a dispute goes to court. Court is to build a library. The people in the case are not important. Time is not important. Families and businesses are not important. What is important is building the body of case law so that, in future, lawyers can better advise their clients. In litigation, plaintiffs who actually go to court are literally sacrifices for the common law.

So, think of litigation as cumbersome, costly, complicated and controlled by lawyers and judges (all for benefit of the system at your expense). Arbitration is personal, adjustable, flexible, fast, inexpensive and does not require lawyers. Plus the disputants get to mutually choose their own private judge. Litigants, unfortunately, get whoever the system offers.

To the disputants the results will be the same. They will get a decision on a dispute.

Mediation is a different animal altogether. Mediation is not black and white. It is fifty shades of grey. It is compromise, agreement, negotiation, communication and not just a little psychology. Mediation is, essentially, reforming or rebuilding on a previously well-regarded relationship – at least long enough to get a deal.

Husbands and wives who hate each other today with a passion usually still have some common relationship threads from their happier past on which to build a compromise, a settlement, or even a different relationship. The mediator is less like a judge and more like a referee controlling the negotiations so that poison words, history, anger and other sabotaging feelings do not get in the way of a managed, focused and directed negotiation.

Arbitration is a dispute resolution analysis of facts, measures, law, rules, and often, money. Mediation is a resolution approach utilizing recipes for communication, understanding and agreement.

Litigation just plain sucks for the individuals getting ground up in the system.

Anyone going to court nowadays is a fool. Courtroom is now reserved for corporations. Try mediation first. Then go to Med-arb. That means arbitration is the final step.

As you can well imagine, the ideal arbitrator is a cut and dried, black and white, no-nonsense, clear thinker who is likely more than passing familiar in a few trades, professions or is at least highly ethical, neutral and rules based. This person knows right from wrong. Trump’s Special Prosecutor Jack Smith, although a lawyer/judge, actually really looks the part.

You can also imagine the mediator as a bit of a laid-back hippy-type preaching love and understanding. This person gets along with everyone, hears well, listens well, builds rapport, says soft wisdoms and has the presence to pull all that off in a hostile environment for at least 90 minutes at a time. That is not easy. Trust me. Many not-too-good mediators with only those traits are just run over by angry participants. And strong, take-charge types find their ego can become obstacles to rapport-building and generating the necessary give-and-take dialogue.

There is a very narrow skills balance point in mediation. A good mediator controls, manages and directs the conversation but does so in a way that the parties feel like they are doing all the work. Most mediations take at least a few 90 minute sessions. Most lawyer-mediators take double that number of sessions – seemingly forever. Expensive. Lawyers were trained to be litigants but ‘adjusted’ to mediation. Some are very good but most are not. I did over 300 and only once required 4 sessions. A bit of fast-math-in-my-head, humour and a dish of candies seems to help move things along.

Women tend to becoming mediators and men tend to become arbitrators. The professions are not gender specified, of course, but many of the more commonly arbitrated disputes are in the commercial, construction and manufacturing industries and a lot of personal, neighbourhood, strata and family disputes involve women.

That historic tendency is less so today but, in a way, it is still somewhat stereotypical. More male arbs in construction, more female mediators in family law. Women tend to look for consensus, cooperation and collaboration. Men tend towards determining right and wrong, hierarchy and confrontation.

Oh yeah, and there is a bit of other sexism, too. And it worked to my advantage. Men often feel that woman are all in some sort of ‘sisterhood’ cahoots and don’t trust a female mediator as readily in a divorce. Women are way less judgmental and will easily trust either gender. Jus’ sayin’….

For a few years I was on the accreditation board for mediators. The women, generally, were more skilled at discussion and building consensus, the men were better at leading, directing and controlling the conversation. Both styles can work if done well.

The best natural mediator I ever saw was a beautiful, very young, blond woman in her lower-to-mid-twenties. When she entered the classroom, for a real case-based test, I really did not think she had a chance. Too pretty. Too young. Most disputants want to see a bit of grey hair on the referee or judge. In age we trust, it seems. Trusting a younger person when you are older is hard. But she was a natural. She had everyone (all in the room at least 15 years older) onside and eating out of her hand in record time – including the accreditors (two men, two women)! And yet, when it was over, her actual people-management skills were so gentle and subtle as to be practically invisible.

The best professional mediator I ever saw was a very handsome, extremely well-dressed, perfectly coiffed and eloquent man who also seemed to project no ego whatsoever (how did he do that?) and took charge so effortlessly that it all came together like magic. Mediation is truly a skill, an art and an example of in-the-moment practical psychology.

Me? Well, I think I was a very humanistic arbitrator and a bit of a hard-cheese mediator. The worst traits of both fields. I was adequate at both but would never be number one in either. My main asset was that I was very quick, very inexpensive and always did plenty of follow-up. I cared for the clients and cared that the agreement worked out.

More than once I was called on a Saturday and did the first meeting (two separate coffee shop get-acquainted meetings with the clients) the next day, the first session on Monday, the second on Wednesday, the wrap-up on Friday and the first draft of a ten page agreement on the following day. Those kinds of ‘quickies’ were mostly because there was a court-date looming. I even had a number of clients come back three or more times. One woman came back for a second divorce and called a few years later for a third (I said ‘no‘. I was now biased towards her because of her track record).

More than a few friendships, with people who were initially were strangers, came about as a result of me doing their mediation. That was a major bonus in my life. There is a saying: “If you take on a case with any kind of bias or prejudgment, you are not fit to practice. If you leave a case after all the deliberations, evidence and discussions, without judgment and bias, you did not do your job.” I came away liking some clients.