Med-Arb and Arb-Med

Combining the mediation and arbitration processes seems to be a very logical way to resolve disputes outside of court. I find it interesting that the same neutral party sometimes serves as both arbitrator and mediator (though not necessarily in that order). From a cost standpoint, which the textbook addresses, I definitely see why a party would rather hire one neutral person than two. On the other hand, as a party considering only hiring one neutral arbitrator/mediator, I would have serious concerns about neutrality continuing throughout the whole process. Personally, after becoming familiar with an issue, I tend to mentally ‘take a side’, which obviously would make it hard to suddenly have to return to the role of neutral decision maker. But maybe experienced mediators and arbitrators are so used to the process that it isn’t difficult for them to detach and remain objective and impartial.

I feel as though a process of “Med-Arb” (or mediation followed by arbitration should the former fail) is a great idea, because I feel like it gives the parties an incentive to work things out in mediation, which usually ensures an outcome that both parties can accept (if both parties are willing to work together and compromise, that is). Med-Arb would keep the threat of a neutral arbitrator making a decision hanging over the heads of the negotiating parties—reminding them that if they can’t work things out amongst themselves, the arbitrator is going to make an award that neither party may like. Conversely, if the parties are especially contentious, the promise of an arbitration decision if mediation fails may be seen as a relief to two parties who have run out of options and compromises. Of course, I can’t ignore the less-desired possibility that two parties may not try hard to reach an agreement during mediation because they know that arbitration will take care of it eventually. I’m not really sure any parties would ever pick that third option, since they are trying to resolve a dispute quickly, after all.

I think that Arb-Med is a really interesting concept, even more so than Med-Arb, because it’s kind of going through the ADR spectrum backwards. I am wavering between thinking that it’s really cool and thinking that it’s a concept that isn’t really practical. On the one hand, just as in Med-Arb, parties will have even more of an incentive to reach an agreement through mediation, since the arbitration award has already been written and the parties won’t get another chance to resolve the dispute if they fail at mediation. On the other hand, I don’t really see why parties who would go through the entire arbitration process wouldn’t just want the award—and instead would rather rehash the entire dispute in mediation, which could possibly take up a lot of time and resources (and could still result in nothing but the arbitration award being published). I wonder how common the use of this tactic actually is. I’m thinking that it isn’t very popular, just based on the face that the textbook didn’t provide a real-world example to accompany its discussion.