Flexibility is essential to providing an effective dispute resolution process. The hybrid procedures known as Med.-Arb. and Arb.-Med. are highly effective in certain circumstances.
Med.-Arb.: This is a combination of mediation and arbitration that begins with a standard mediation (see Mediation). In the event that the parties are unable reach agreement on all of the outstanding issues, the remaining issues move directly to arbitration. Arbitration proceeds after the parties have executed a mediation settlement agreement resolving as many issues as possible. Only the unresolved issues are arbitrated. The mediator then serves as the arbitrator for resolving the remaining issues by binding arbitration. The process allows for additional discovery, if necessary, and the presentation of additional information to the arbitrator. Because discovery and the presentation of information is usually the most costly part of dispute resolution, the med.-arb. process can increase the efficiency of the process and reduce the costs. The use of a single neutral also reduces the costs associated with educating a second neutral about the facts of the case. In addition, knowing that unresolved issues in the dispute will proceed directly to arbitration can increase the parties’ incentive to collaborate on a solution during the mediation phase.
Arb.-Med.: In Arb-Med, a single neutral conducts an arbitration, writes an award, and seals it. The award is then put aside and the neutral and the parties proceed with mediation. The binding arbitration award is only revealed if the parties reach an impasse in the mediation. The presentation of evidence in an arbitration setting can help the parties focus the issues. The fact that an arbitration decision has been made can provide additional incentive to resolve their disputes.
“Med-arb”: An Effective Tool for
Resolving Disputes, January 31, 2012, Edited by: PON_Staff, Program on Negotiation of Harvard Law School.
Working with its National Construction Dispute Resolution Committee (NCDRC), the AAA created new Supplementary Rules for Fixed Time and Cost Construction Arbitration that will allow parties to calculate the maximum time to complete the arbitration, the number of hearing days, and the arbitrator costs. Learn more on the AAA website: http://go.adr.org/FixedTimeandCost