prevents this difficulty and leaves both parties free to suggest concessions without fear of future prejudice. In the event of a failure to secure a settlement through mediation in any given case, neither party at the end of the proceedings would have any definite knowledge of what concessions the other had been willing to make, and both are therefore in the same relative position as they were when the proceedings began. Neither has gained any tactical advantage, nor has either had its side of the case prejudiced by what has passed during the mediation proceedings.

No minutes are taken nor are any formal records kept of what occurs in the meetings between the mediators and the respective parties to the controversy. Ordinarily the only thing which becomes a matter of formal record is the final articles of settlement agreed to and signed by the parties in dispute.

Unless requested or authorized to do so by the parties to the controversy, the mediators do not make public the terms of settlement agreed upon through mediation. It is true that these proceedings are carried on by Government officials under Government authority and at Government expense; and it might be argued that these facts render the controversies public matters. On the other hand it may be held that since differences between certain classes of employers and employees engaged in interstate traffic may, if unadjusted, cause serious public inconvenience and serious public loss, the Government merely furnishes the machinery for bringing about an amicable settlement if the two parties to a controversy can not themselves come to terms; but that, nevertheless, these disagreements remain primarily the concern of the employers and employees involved. The mediators, however, are primarily concerned only with the policy that will render most effective the operations of the law, and it is believed that leaving to the parties in dispute to determine the degree of publicity to be given to the terms of settlement is much the best policy.

DISTINCTION BETWEEN MEDIATION PROCEEDINGS AND ARBITRATION,

In a number of instances published articles dealing with the settlement of cases through mediation carried on under the Erdman Act have referred to the "award handed down by the mediators," or have used such expressions as "the decision rendered by the mediators," thus giving the impression that the mediation proceedings are similar to an arbitration and that settlements through mediation represent a decision by the mediators on the questions at issue embodying their view of what is a fair and reasonable settlement. By reference to the law itself it will be seen that the mediators are

1 In this respect the treatment of mediation proceedings differs widely from that of arbitration proceedings. The latter are usually carried on in open hearings, and all the papers, including the award and a certified stenographic copy of the testimony, are filed in the clerk's office of the United States circuit court, and become matters of public record.

2 See p. 58.

without authority of any kind to impose their views or conclusions upon the parties to the controversy. Their functions consist solely in exercising friendly offices and attempting to harmonize the dif ferences existing between the employer and the employees and by inducing concessions from each side to bring them to a voluntary agreement upon all the points at issue. It may be assumed that in any given case the mediators would naturally endeavor to induce the parties to come to a settlement on terms that would appear to them just and fair, but they have no authority or power to compel the parties to the controversy to yield to the views held by the mediators. The mediation negotiations, therefore, in no way partake of the nature of an arbitration, and the settlements brought about through mediation represent an agreement reached by the parties themselves through the friendly offices of the mediators rather than an agreement imposed upon them by any third party.

ARBITRATION UNDER THE ERDMAN ACT.

The concluding part of section 2 of the law provides that in the event the efforts to secure an agreement through mediation should prove unsuccessful the mediators shall endeavor to induce the parties to the controversy to submit their differences to an arbitration in accordance with the provisions of the law.

Sections 3 to 7, inclusive, of the act are aevoted to the provisions governing arbitration. These sections provide the form of arbitration agreement that should be entered into, the method of selecting the arbitrators, and provide also for a certain limited right of appeal to the courts from the award of the arbitrators.

Under the provisions of the law one arbitrator is selected by each party to the controversy, and the two thus chosen select a third, provided they are able to agree upon such third arbitrator within five days after their first meeting. In the event of their failure to agree upon the third arbitrator within these five days, he is named by the presiding judge of the Commerce Court and the Commissioner of Labor acting together.1

From January, 1907, up to the present time there have been 12 arbitrations under this Federal law. In only three cases out of the 12 have the two arbitrators appointed respectively by the parties to the controversy been able to agree upon a third arbitrator. In two of these three cases the two arbitrators agreed upon a third arbitrator within the five days prescribed by the law, but in each case the arbitrator so agreed upon was unable to serve. The fact that the arbitrator so agreed upon was unable to serve did not develop in either of these cases until after the expiration of the fifth day. In

1 See note, p. 4.

both of these cases the two arbitrators then agreed upon a third arbitrator in place of the one unable to serve; but as the five days had elapsed they were without legal authority to name the person thus agreed upon as the third member of the arbitration board. In the third case the two arbitrators were unable to agree upon a third arbitrator within the five days, but did shortly thereafter agree upon such third arbitrator. In each of these three cases, in order that the person selected by the arbitrators themselves might legally become third arbitrator, he was, upon the request of the other two arbitrators, named as third arbitrator by the mediators, who are directed by the law to appoint such arbitrator in cases where the two arbitrators first appointed have not been able within the five days prescribed by the law to agree upon the third arbitrator. In all the other cases of arbitration the two arbitrators have not been able within the five days to agree, and have thereupon notified the mediators and requested them to appoint such arbitrators.

The selection of the third arbitrator by the mediators has been a difficult and embarrassing duty and one that involves a considerable degree of responsibility. It is practically inevitable that the third arbitrator is unfamiliar with the questions at issue. The contracts between the railroad companies and the employees engaged in train operation are complex agreements involving many matters of detail which it is important for an arbitrator to understand, but of which few persons have any correct appreciation unless they have been familiar with railroad operations at first hand. Obviously anyone having this familiarity would be either a former manager or operating official of a road or a former employee who had been engaged in train operation. While the mediators could unquestionably find and agree upon some one of either of these classes who in their judg ment would be absolutely fair-minded, it is obvious that the appointment of such person might be looked upon with distrust by one or the other side to the arbitration. If the other two arbitrators should differ, each one leaning to the side by which he had been appointed, est with which he had formerly been affiliated, should render an and the third arbitrator, joining with the one appointed by the inter award favorable to that side, there would more than likely be an added feeling of dissatisfaction with the award on the part of the interest which had lost by the decision, and criticism on its part of the mediators for making such appointment. In any event, dissatisfaction with an award and consequent criticism of the appointment of the third arbitrator is to be expected; and this would not be a factor to be taken into consideration by the mediators in choosing an arbitrator were it not that the character of their work in mediation is delicate, and anything tending to create distrust of their fair

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ness or their judgment on the part of either employer or employee would lessen their usefulness and hamper their work under the law. In a word, it is necessary that the person appointed by the mediators shall not only in their judgment be fair-minded in fact, but shall be free from any present or past affiliations which might justify either side in doubting his actual fair-mindedness.

In actual experience further difficulty has arisen from the fact that when a person fully meeting the requirements has been found by the mediators it has frequently been difficult to induce him to accept the appointment. In more than one instance the mediators have agreed successively upon three or four persons, only to find that they were unwilling or unable to serve.

Such care has been exercised in the selection of arbitrators that frequently one of the mediators has gone personally to interview a proposed appointee to find out if there was any reason unknown to them that would make it undesirable for such proposed appointee to serve. Inquiries have also been made sometimes directly of the parties concerned in the controversy, and at other times of interests affiliated with them from whom it could readily be learned whether the proposed appointee could reasonably be considered objectionable to either side.

It would, of course, be particularly unfortunate if by any chance the mediators should unknowingly appoint as third arbitrator some one who during the five days spent by the two arbitrators first appointed in considering a third arbitrator had been considered and rejected by them. To avoid this possibility, the mediators, when notified by the two arbitrators of their inability to agree upon a third arbitrator, request that they be given a list of the names, if any, that have been discussed or proposed and rejected. In some instances, in the hope of simplifying their own task and of finding a third arbitrator who would unquestionably be acceptable to each of the other two arbitrators, the mediators have asked each of the arbitrators already appointed to submit a list of names of persons who would not only be satisfactory to the side that had chosen the arbitrator making up the list, but whom that arbitrator had a right to feel would be entirely acceptable to the other side. The mediators had hoped that perhaps one name might appear on both lists, and by the selection of that name they could assure themselves that the appointee was entirely satisfactory to the other two arbitrators. This hope, however, has never been realized.

As will be seen from the column in Table II giving the occupations of the arbitrators in the various cases that have gone to arbitration, the railroad companies have usually frankly named as their arbitrator one of the operating officials of the road or roads involved

or an operating official of a neighboring road, and the organizations representing the employees have on their part frankly selected as their arbitrator one of their own officials. While on the face of it this might seem a matter for criticism, it is not at all certain that it is not after all the wiser course to pursue.

In any case in the selection of an arbitrator each side naturally chooses someone who looks at the question from its own viewpoint. It is not that either side desires to be unfair. Ordinarily each side is convinced of the fairness of the position that it has taken in the controversy which brought about the dispute and led up to the arbitration; and each side probably feels that the inability of the other side to see the fairness of the opposing contention is due to a natural bias brought about by its own interests. As a matter of fact, it is difficult to get even disinterested men always to agree upon what is fair or right in a controversy of this kind, because one's opinion as to the fairness of a position on questions of the character involved in these disputes is unavoidably affected to a considerable extent by the angle from which it is viewed. Each side, therefore, in choosing an arbitrator naturally selects one who will look at the question from its own standpoint. Unavoidably, therefore, the third arbitrator really becomes the umpire and the other two arbitrators, through what might be termed an honest bias, become more or less advocates of the contention of the side by which they have been respectively appointed.

In most of the cases, as is seen from Table II, the possible bias of the arbitrator is plainly indicated, and the third arbitrator is thus advised of the angle from which each of his colleagues is viewing the question at issue. Moreover, the questions involved in most of these controversies are complex and technical far beyond the ordinary wage controversy. The agreements regulate every phase of wage rates and working conditions. Questions under any or several of these provisions may arise in any arbitration, and arbitrators unfamiliar with the complexities might easily, if in their deliberations after the hearings are closed they are unaided by the presence of representatives of both parties, be very much confused over some of the questions, and might unwittingly render a decision the results of which would be far different from what they anticipated or desired. It may be argued, therefore, that there is considerable advantage in having present during the period of deliberation and the framing of an award two arbitrators who are themselves entirely familiar with every detail of the questions involved and who can foresee and point out the exact effect of any given decision proposed by the third arbitrator.