Alsdorf Dispute Resolution | Philosophy / Process

Overview

Arbitration and mediation are distinctly different arts. Nonetheless, both processes have one common attribute. In both, the parties are in charge:

In arbitration, before asking the arbitrator to make a binding decision on a given issue or set of issues, the parties themselves determine the scope of the arbitrator’s authority and the rules that will govern the exercise of that authority.
In mediation, the parties ask the mediator not to decide the ultimate outcome of any dispute, but instead to help them find ways to resolve that dispute. In the end, the parties themselves will determine whether to accept any given proposal.

Special Master assignments differ somewhat. Judges may appoint a person to perform certain functions for the court as a Special Master in a pending case. Courts will generally select a Special Master only after giving the parties and their counsel an opportunity to be heard in open court about the person to be appointed and about the scope of the duties to be performed. Special Masters may exercise only those powers that are specifically given to them by court order, and their decisions are subject to court review.

A brief supplemental description of Robert H. Alsdorf’s approach to each of these tasks follows.

Arbitration:

Although the arbitrator makes the final decisions on the merits of a given claim or defense, the nature and scope of an arbitration is controlled by the terms of the parties’ agreement.
The arbitrator must be prepared to conduct the arbitration proceedings in such a manner as to achieve efficient, reasoned and cost-effective resolution of the dispute(s). In order to do so, the arbitrator will generally apply procedural rules that are common to the great majority of arbitrations, but each individual arbitration is limited to the factual and legal issues that are designated by and specific to the parties involved. The arbitrator is required to make a final and binding decision, but only on those matters that are within the scope of the parties’ contract or other agreement.

The arbitrator’s fundamental duty is to listen.
In virtually every case, all sides coming into a hearing think that they are right and are entitled to win. Their belief is often informed by and founded upon all manner of non-legal considerations. An arbitrator must be careful not to repeat the parties’ error. That is, an arbitrator must not apply personal preferences or rely on matters outside the record made in the arbitration. From the start, an arbitrator must listen to the parties and focus on the process rather than leaping to a conclusion about the final result or who is likely to win. Adherence to process is at the core of a fair arbitration.

The most important person in the arbitration is the losing party.
The best arbitrators are, in a very real sense, non-judgmental. When an arbitrator finds himself or herself leaning one way, the arbitrator must become even more careful to listen to the party that seems to be losing. The arbitrator must seriously consider all arguments not just of the winning but also of the losing parties. When issuing a decision, the arbitrator must demonstrate clearly to the losing parties that they have been heard. The fairness of a dispute resolution proceeding is probably best judged by the respect that the losing party has for the process.

Posing and selecting neutral question(s).
When analyzing and ruling on the issues raised in a particular proceeding, arbitrators must exercise their best efforts to pose questions that do not consciously or unconsciously predetermine the outcome. Therefore, an arbitrator is greatly helped in a hearing if counsel provides one of two things in response to the arbitrator’s question: either (a) a direct answer to the question, or (b) an explanation of why the question misses the mark, and an explanation of what the party believes is the appropriate question. And, if and when the final choice among several possible questions does effectively determine the result, or the ultimate question or questions have been identified and answered, the arbitrator must be prepared to identify for the parties the neutral principle of choice that explains and justifies the question and the answer.

Mediation:

Each mediation is unique.
Mediating parties control the scope of a mediation just as arbitrating parties control the scope of their arbitration. Mediations are set up only after a telephone conference with all counsel, addressing all details of that mediation, such as the nature and length of written submittals, opening statements if any, caucus or joint sessions, persons in attendance, respective roles of counsel and parties, timing and number of meetings and all other terms and conditions.

Confidentiality is central.
Disputes cannot be settled without frank and honest communication. A mediator cannot help unless fully informed of the facts, relationships and dynamics that the parties believe are promoting or inhibiting settlement. Parties are willing to speak frankly with the mediator only to the extent that they are assured that what they say will not be divulged without their authority. Except as the parties otherwise agree, the mediator’s discussions with each side are held in confidence from the other side(s), and the entire mediation is kept confidential from outside parties. This confidentiality is critical to each mediation.

The parties make all binding decisions.
In a mediation, the parties make the key decisions not only as to scope and process but also as to final result. The mediator’s role is simply to assist the parties in identifying and evaluating alternatives, and in coming to a reasonable resolution of their dispute. In contrast to an arbitrator, the mediator is not the final decision-maker. Instead, the parties themselves decide whether to settle.

Special Master & Other Assignments:

The Court controls the scope of a Special Master assignment.
Robert H. Alsdorf accepts assignments from courts to act as Special Master for claims processing, discovery, or other matters defined by the courts. Each assignment is governed by the specific terms of the court’s order, which is generally entered only after the parties have had the opportunity to present argument on such an assignment.

The Special Master confers with the Parties, who retain their right to be heard.
Robert H. Alsdorf takes no action pursuant to an appointment until the parties and their counsel have also conferred with and been heard by him in his role as Special Master. In addition, once he has made the decision(s) delegated to him, the parties retain the right to seek review of those decisions in the assigning court.