I was once asked to mediate a court referred dispute between renters and a landlord over failure to do necessary repairs.

When the first met with the parties I found the renters to be a couple in their late-20s and the landlord to be a woman in her mid-80s. In that jurisdiction, as mediators receive no information about the case before the mediation, I began as usual with an introduction to the process and then by asking the plaintiffs, in this case the young couple, to describe the dispute. The first to speak said that she had grown up in the house next door and had known the landlord all her life. The second to speak described long needed extensive repairs to the house and their attempts to get the landlord to approve and promise to pay for the work. The landlord appeared to me to be confused by the situation and upon questions from me said that the house was in fine shape when she and her late husband had lived there.

At this point I needed to assure myself that the mediation would be a fair process. Ethically, I need to be assured that the parties are able to meaningfully and fully participate in the process and to make informed decisions for themselves. I asked the landlord if she would like someone to help her. She said yes. I then stopped the mediation and had her referred to an Office for the Aging.

i did so because issues involving the elderly can include challenges in communication, competency and even forms of abuse. There are obvious concerns about hearing and vision issues resulting in a party needing assistance. A mediator needs be assured that the party understands the issues and any relevant documents. In this case, I did ask the landlord to tell me what she understood her lease with the tenants to say about repairs. Her answer gave me insight as to her being fully able to participate in her best interest.

Finally, the mediator need be alert to the possibility of elder abuse. Most elder abuse involves people the older person trusts. Abuse can be physical as well as financial. According to a 2017 FBI report, some 50,000 people over 60 lost $343 million from financial exploitation and scams. The total cost of unreported abuse is much higher.

Weeks later I was the mediator on the same case, but this time the landlord had the assistance of an attorney from her local Office for the Aging. Her attorney helped her understand the dispute and the mediation process. As the mediator I only needed assurance that she understood and approved any decisions.

In that mediation it became clear that the renters had been defrauding the landlord by volunteering to deposit the rent directly to her bank account, when they were actually making reduced payments.

The mediation was the first step in righting this wrong.

The decision to either mediate or arbitrate is a question I am asked frequently. To help a person understand the difference I use a very simple image: Imagine a person who listens to your dispute, tells you what to do, and then says there is no talking back. In other words, the arbitrator is somewhat like a parent.

In most instances the arbitrator is a neutral third party who has some experience in the general area of the dispute. They listen to testimony and review evidence.  Generally speaking the rules of evidence are less stringent than in a court adjudication because the arbitrator renders the decision.

Most of us are parties to many contracts that specify that disputes are to be resolved through arbitration. That ranges from agreements with banks, real estate agreements, telecom companies, medical specialists and others. Overall, there is little or no appeal of these decisions. The advantage of arbitration is that it is much faster and much less expensive than court adjudication and is usually confidential.

After a suit has been filed, the court may offer parties the option of using arbitration before a trial. In these cases of judicial arbitration, generally speaking if the parties do not accept the arbitrators ruling, then the dispute goes to trial as if the arbitration had not occurred.

Recently contracts requiring arbitration have been in the news. For example, JPMorgan Chase notified more than 40 million credit card holders that they will have to use arbitration to resolve any disputes with the bank forgoing the option of filing a lawsuit or joining class-action suits. And Uber is using arbitration now with its millions of drivers for the same reasons. A recent study at Stanford University’s Graduate School of Business analyzed some 9,000 arbitration cases involving financial institutions. They found that the companies routinely used arbitrators that tended to be industry-friendly. Even if the arbitrator comes from a neutral organization, the businesses has a better idea of an arbitrator’s background and past awards. They found that arbitrators who in the past favored a specific industry were 40% more likely to be chosen by those companies than arbitrators who had been more sympathetic to consumers. They also determined that if the arbitrators had been chosen at random, the average monetary award to consumers would have been $50,000 higher.

Remember that there can be little, if any, appeal to an arbitrator’s decision. So the outcome is determined by the arbitrator alone. To be a credible system, the arbitrator must be neutral. Selecting an arbitrator who has a leaning one way or another corrupts the process.

There are, of course, many neutral, professional arbitrators. And there is a difference between forced arbitration, as was the case with Chase, and voluntary arbitratio..  Nonetheless, I favor and advocate for facilitative mediation in what the disputing parties maintain the power to resolve their dispute themselves.

By the way, if you are a Chase cardholder, the company does permit you to opt out of arbitration. You have to do so in writing within 60 days of receiving the bank’s notice.