By: Dr. Justin Wood, Th.d, CJME
Yes, mediation and arbitration can be combined. There are some benefits, but it can be tricky and may not always be advisable.
A hybrid mediation-arbitration approach called “med-arb” combines the benefits of both techniques. Conflicting parties first attempt to collaborate on an agreement with the help of a mediator. If the mediation ends in impasse, or if issues remain unresolved, the parties can then move on to arbitration. The mediator only uncertain conditions can assume the role of arbitrator but many times it is advisable to have a separate arbitrator to prevent conflicts of interest. An arbitrator can render a binding decision quickly after having the case passing off from the mediator.
Conversely, in “arb-med”, an arbitrator hears the evidence in the dispute and renders an award which is kept secret. The parties then attempt, with the help of the neutral acting as mediator, to settle the case. If they are unsuccessful, the award is revealed and the parties are bound by it.
While combining techniques may be efficient and cost effective, many professional mediators and arbitrators do not recommend creating a situation in which one neutral assumes both roles. When you know your mediator may ultimately decide your fate, you might feel somewhat inhibited about sharing confidential information about your interests. What if the mediation moves on to arbitration and he uses that information against you? You’ll need to weigh this legitimate concern against med-arb’s ability to get disputes resolved quickly.
The biggest thing to understand is there are options in mediation and arbitration when they are combined including a non-binding ruling which helps forward negotiations in mediation.
Please contact us to discuss which alternative dispute resolution avenues would best suit your particular situation.