A Hybrid Dispute Resolution Tool

Mediation/Arbitration, often referred to as Med-Arb (its similar counterpart is Arb-Med), is a hybrid form of mediation/arbitration in which the neutral initially conducts a mediation process. In the event of a failure of mediation, the neutral assumes the role of an arbitrator and imposes a binding decision. Med-Arb is a result of an express written contract between the parties establishing the mediation/arbitration agreement.

The essence of Med-Arb is to first allow mediation to occur, thereby allowing the parties the opportunity to reach their own resolution to the dispute. In this initial phase, the neutral acts as a mediator and coaches or encourages the parties towards settlement taking into account the information received throughout the mediation process. Should the mediation fail to resolve all aspects of the dispute, the neutral changes roles and assumes responsibility as an arbitrator. It is the arbitrator’s responsibility to impose a final resolution through a binding Award. In doing so, the arbitrator may utilize information gathered during the mediation process.

Although there are many advantages to this process as a vehicle to legitimately serve the needs of the parties, the Mediator/Arbitrator requires substantial training and expertise in both dispute resolution processes. In addition, attorneys and clients will wish to carefully examining the advantages of this process prior to finalizing the Med/Arb agreement.

The advantages of this process are:

  • The parties are given the opportunity to try to resolve the dispute themselves. Should they not be able to do so, they know that they will have a quick decision and finality of the dispute in a relatively short timeframe.
  • The parties are aware that should they not work hard to come to a mutually agreeable settlement, there is the threat of an adverse decision by the arbitrator.
  • Because the process is completed in one setting, the parties can save both time and money.
  • The Award issued in the arbitration process can quickly be converted into a court order. An agreement through the mediation process is enforceable as a legal contract. If time is of the essence and the parties have relatively equal bargaining power, this process may prove to be highly desirable.

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