When businesses or litigation attorneys embroiled in arbitration walk into a mediation, they are always concerned about what could happen if the case does not settle. For many, arbitration feels like a safer, more predictable alternative to court. But as anyone who has lived on both sides of the arbitration table knows, there’s much more nuance beneath the surface.
Having served as both a neutral arbitrator and a mediator, I’ve seen how an informed understanding of arbitration can dramatically improve mediation outcomes. The two are different tools, but they share one core purpose: resolution. And the best mediations often come from understanding how arbitration really works — and how it can go wrong.
The Growing Role of Arbitration in Civil Disputes
Arbitration is becoming increasingly common in business and commercial disputes. It offers privacy, efficiency, and a final decision without the time and cost of a full trial. It also comes with risks, however, that can catch even experienced litigators off guard: extremely limited discovery, constrained appellate options, and the unpredictability of a single decision-maker.
That’s where mediation comes in. A skilled mediator who understands arbitration from the inside can help parties weigh those risks carefully before they resort to that path.
I often tell parties, “If you’re heading toward arbitration, mediation is the last best place to control your own outcome.” Once the arbitrator takes the case, control shifts, and the decision rests in someone else’s hands.
Understanding the Arbitrator’s Mindset
Every arbitrator brings a unique perspective to the table, shaped by years of experience, practice, and temperament.
As an active arbitrator in business disputes, I can often anticipate how an arbitrator might approach a case, not because I’m guessing, but because I’ve been in that chair. I’ve weighed evidence, credibility, and argument under the same constraints your arbitrator will face.
That experienced perspective allows me to help parties evaluate questions like:
- How much risk does this issue really carry in arbitration?
- How might an arbitrator interpret these facts, based on prior experience?
- Is the cost of pursuing arbitration worth the marginal chance of a better result?
When I mediate, I don’t simply shuttle offers back and forth. I help litigants think through how their arguments will actually play in the real world before the people actually empowered to decide their fate.
The Power of Timing: Knowing When to Negotiate
One of the most overlooked variables in any dispute is timing. That’s especially true when arbitration is still on the distant horizon.
Too often, parties wait until the eve of a final arbitration to consider serious settlement discussions. By that point, sunk costs and hardened positions make compromise more difficult.
As I discuss in my #NegotiationTips clip “When to Negotiate,” the best time to mediate is often before arbitration deadlines and deposits lock everyone in.
Timing a mediation before the arbitration process accelerates allows parties to:
- Retain control of the outcome
- Avoid unnecessary expert and discovery expenses
- Preserve relationships that might otherwise fracture through adversarial proceedings
The right mediator will help counsel recognize these inflection points, and use them strategically to reach resolution before the momentum of litigation or arbitration takes over.
Predicting Outcomes and Managing Risk
Arbitration can feel unpredictable because it’s designed to be flexible. Rules vary by institution, and panels differ widely in how they conduct hearings.
That variability can make it more difficult for clients, and even seasoned attorneys, to assess risk accurately. A mediator with active arbitration experience can help translate that uncertainty into tangible risk assessment.
When I mediate, I often draw from what I’ve seen in actual arbitration rooms:
- How arbitrators evaluate expert credibility
- What procedural missteps tend to undermine strong cases
- Why certain damages arguments resonate and others don’t
These aren’t hypotheticals; they are patterns observed across dozens of arbitration matters. And when shared appropriately in mediation, they can help parties make informed, pragmatic decisions about settlement.
The Value of Informed Neutrality
The most effective mediators don’t just listen, they understand the full spectrum of dispute resolution. They can see how a case looks from different angles, like the advocate, the judge, the arbitrator, and the negotiator.
That perspective allows a mediator to engage meaningfully with both sides, not just as a messenger but as a credible sounding board.
When a lawyer or client hears a mediator say, “Here’s what your arbitrator will likely consider most persuasive,” they listen differently. That credibility isn’t theoretical. It’s earned.
And that’s what drives the best mediation outcomes: the combination of insight, timing, and trust.
Conclusion: Bringing Arbitration Perspective to the Mediation Table
Every dispute carries uncertainty. The question is not whether you can eliminate risk. It’s whether you can see it clearly enough to make smart decisions about it.
Arbitration can be a powerful tool, but when used without a clear understanding of how it works, it can also surprise experienced litigants. Mediation, guided by someone who’s seen arbitration from the inside, helps restore balance.
My role as a mediator is not to predict the future, but to help parties see it more clearly: through the lens of experience, judgment, and human understanding.
Because, ultimately, the best way to win in arbitration is often to settle wisely before you ever get there.
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Visit jeneveinmediations.com to learn more about how informed mediation can help you and your clients assess risk and reach resolution before arbitration begins.
