May 13, 2015

When mediation fails, arbitrate to close the gap

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Mediation is good.  It’s a great opportunity to close off litigation.

Too often, mediation results in offers from both sides that are not accepted.  We sometimes say that the gap is too big to settle.

A second mediation might or might not close the gap.  Arbitration will close the gap.  In fact, you can direct the arbitrator to make a decision that falls within the gap.  That’s one of the benefits of custom rules, you can get creative.

Is there a risk to arbitrating about the gap?  What if only one of the offers is reasonable?  That’s fine as it will come out in the arbitration.

A classic failed mediation outcome in employment law is an employer offering too little while the employee asks for too much.

All it takes to drive a deal is an arbitrator to fix a number somewhere in the gap.

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