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Arbitrators can't erase previous offers

|Written By John Tamming

Philip Epstein sees nothing wrong if the same person who conducted the failed mediation conducts an arbitration on the same matter (see “Lawyer touts benefits, responds to critics of med-arb,” March 12).

He reasons that judges run voir dires all the time and that just as they block out evidence that has been excluded, arbitrators can do the same.

The analogy does not fly. Voir dires do not deal with past negotiations. Even the most bombed-out husk of a failed mediation renders two critical pieces of data to the mediator: the best offers of both the applicant and the respondent.

Indeed, depending on the mediator’s style, he or she may have had a great deal of influence in shaping those offers.

For an arbitrator to presume to ignore this data is to bestow on him or her powers that we don’t even permit a judge. There is a reason, after all, that the pretrial judge does not run the trial.

It simply astounds that there are lawyers who think it possible and professional to run an ostensibly neutral hearing in full knowledge of past offers.

John Tamming
John A. Tamming Professional Corp.
Owen Sound, Ont.
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