Lose-Lose

I often tell people that the difference between mediation and arbitration is that arbitration, like litigation, is a win-lose proposition, while mediation is a search for the win-win solution. 

Earlier this month, I served as the arbitrator for a home construction dispute.  The home owner wanted to recover the cost of repairing alleged construction defects and completing items the contractor failed to do.  The contractor wanted to recover the alleged balance due on the contract price plus extras.  Each side wanted the other to pay its attorneys fees. 

My ultimate decision awarded some money to the home owner after offsets for money due to the contractor.  I denied both requests for attorney fees.   Both parties submitted requests for reconsideration.  Obviously, neither side was satisfied with the result.  In other words, it was not a win-lose decision.  It was a lose-lose decision.  If either of these parties, or their attorneys, knew what was good for them, they would have negotiated a settlement long ago.  I know a mediator who would have been happy to help them.