This week I was challenged by a multi-day arbitration where I felt personally torn between the dictates of "justice" (technically, the respondent had no legal obligation to keep an unwanted, at-will employee when a new Supervisor came in who disliked him) and the cry for "fairness" which may have dictated he be given some notice, explanation, that the termination be based upon legitimate "cause" or at least that he be given some recognition for the many years of service that the employee had given prior to the termination.
My struggle ended with my own suggestion to the parties that before they finish putting on all of their evidence (and possibly becoming further emboldened in their positions) and before I was forced to apply the law and reach a verdict which would be adverse to one and victorious to the other, perhaps they would like to engage in settlement discussions. Five hours later, and to my great relief and their great surprise, they had arrived at a very creative and fair settlement--which had less to do with "justice" than my verdict would have, but everything to do with "fairness". I am confident that 2 days into trial, had I not suggested this approach, the parties would not have recommended settlement discussions to their respective clients. Both had engaged very competent counsel to win.
Sometimes, a neutral third party is exactly what the parties need to arrive at the delicate balance between "fairness" and "justice" that we try to maintain. Do other arbitrators dare to recommend settlement discussions during the evidentiary hearing? (I did not serve as the mediator, by the way, because no one was expecting this would work--so they wanted me to continue the hearing if it failed.)
I offer this experience as hope for a more balanced future outcome on the tough ones!