On-the-fly procedures ...

The other day I performed a med/arb fashioned by the parties. They recognized that there wasn't much dispute on the facts (as opposed to their legal consequences). They suggested that I meet with each side and hear their evidence (in the absence of the other), and then attempt to mediate a settlement. If that didn't work, I was to decide whether I had enough information to make a binding decision without a "formal" hearing. If so, they were content to let me make a decision. If not, I could hear evidence and cross-examination and then make a decision.

What I found interesting is that the parties recognized what most decision-makers will tell you: the issues that divide parties are rarely factual; they are more often about the emotional reaction of the parties or the legal inferences or consequences to be drawn from those facts. Why then is it necessary to burden the parties with the requirements of formal proof? Why not let them tell their story in their own words (which is what they so often want to do) and then provide them with a decision. Much quicker, much cheaper and, I believe, ultimately much more satisfying to the parties.