By Brian R. Jerome, Esq.
Since I became involved exclusively in providing ADR services in 1991, I have been fortunate enough to have been selected to serve now in over 7,500 cases, both large and small, over a very wide range of disputes, for which I am so grateful. The experiences I have had as a neutral are remarkable and I have been blessed to have had the opportunity to provide such a valuable service to so many private individuals, attorneys, claim handlers and business owners. To become involved at this settlement or closure point in a dispute has been truly fascinating. At this closing stage, every case is different, with such varied interests, motivations and needs all coming to a head.
I have chosen, and continue to serve as both a mediator and an arbitrator over these years…two very different roles or “hats” to wear, and I feel so fortunate every day that I have, what I perceive, as the most rewarding legal job out there, and one that – at least to me – fits like a glove to my personality, skills and interests. Following my bliss…[See author Joseph Campbell’s many books on this philosophy].
Well, maybe except for one little thing! Briefly stated, I have had to accept the fact that being an arbitrator, the one who finally decides a dispute, means that you cannot make everyone happy all of the time, and my arbitration decisions may likely have had a negative impact on my business! Sounds simple enough and a small price to pay for bliss, right? Probably true. But it may be worthwhile to discuss some of the implications of this reality.
The not being able to making everyone happy part has been the easier pill to swallow. Any would-be arbitrator has to develop a thick skin and wear “big boy (or girl) pants” in this regard, since what is true in arbitration is also true in life…you just can’t make everyone happy. And in arbitration, nor should that be the neutral’s goal. Too often, a legitimate criticism of arbitrators is that they tend to split the apple, and are unable or unwilling to follow the evidence and make difficult but warranted decisions that may alienate, rightly or wrongly, the losing party or perhaps their counsel or their insurer. An impartial arbitrator is really required to put on their thick skin and big boy pants and make their decision without regard for whether feelings will be hurt, or that that they will lose a client (big or small). If not, they will not be in business for very long anyway. Unfortunately long-term arbitrators are not on the Christmas card lists of many losing parties or their counsel or perhaps insurance representatives. That’s just the nature of the job.
This being the case, there does seem to be a growing trend of highly qualified neutrals, imminently capable and respected reasonable men and women who have chosen to no longer serve as arbitrators but only as mediators. Some have suggested to me that doing arbitrations is “bad for business” or that “ arbitrators have a shelf life”, like a shooting star that will lose their luster over time with clients unavoidably alienated with an adverse decision(s). Unfortunately, I do see some truth to these assertions, which is regrettable. Like all of the arbitrator peers of mine, I have undoubtedly lost clients or potential business, even for future service as a mediator, due to an arbitration award deemed by some to be unfavorable. I have plaintiff attorneys who will never select me again “you are too defense oriented” and some insurers who will not select me again for service “you are too liberal in your awards.” Perhaps that is the best indication that a long term arbitrator can hope for to support their neutrality and reasonability, to be an even handed alienator!
Here’s an example…..submitted for your consideration…. a recent personal injury case I arbitrated where liability was contested, essentially a “he said, she said” situation that could go either way. Medical bills were in excess of $250,000 for treatment including four surgical procedures on the 56 year old, now disabled, ironworker’s neck and back. The plaintiff had a significant past history of neck and back problems, including a prior surgery. His medical expert causally related his condition of continued disability and treatment to the incident involved, while the defendant’s medical expert testified that he suffered only transient soft tissue injuries that would have resolved in 6 to 8 weeks, and that only initial medical treatment amounting to $1,600.00 is related to this accident and the care thereafter, including surgeries, are unrelated to this accident but caused by his underlying symptomatic preexisting medical conditions.
Now you might see why some of my peers, perhaps understandably, choose not to serve as arbitrators! An arbitrator’s nightmare? Perhaps, but someone has to follow the evidence, assess the credibility of the testimony proffered and make what they feel to be the proper decision, all as supported by the weight of the evidence. And…regrettably…perhaps accept that some parties will be disappointed and will file my toll free telephone number [(800) 536-5520] in the circular file. Welcome to an arbitrator’s world.
One must consider, however, that there were likely very good reasons why the parties in that case chose to submit it to arbitration and dismiss their pending litigation in the Court. For their own reasons, they both were drawn to arbitration for one or more of the many advantages of arbitration over the Court/jury trial. Some of these reasons may be more obvious, such as the arbitration’s efficiency, lower costs, finality, and the ability to select the neutral, etc… Other reasons may never be known by the arbitrator, such as applicable insurance policy limits or a confidential high low agreement in place. The point is that arbitration was the preferred choice of both parties for good reason. The continued availability of qualified and experienced arbitrators willing to serve and available for selection in such matters is important to the viability of the field of arbitration.
So, for many of these reasons, this arbitrator of 23 years carries on, still standing… and in the mornings, walking into the office, I say a warm hello to the local meter maid, knowing that s/he doesn’t have the easiest job on the block!
All the best, Brian