Originally from Dispute Resolution Journal

Preview Page

SCHEINMAN SCHOLARS
MED-ARB: A CHOICE BETWEEN
SCYLLA AND CHARYBDIS
Daniela Antona∗

How “alternative” to litigation can alternative dispute resolution
processes (ADR) be?1 Should the parties’ autonomy be restricted
in some cases, especially when it might affect their own interests?
Do the purported benefits of ADR—mainly confidentiality,
efficiency—outweigh the benefits of a due process, including
independence and impartiality of the decision-maker? 2 Can
parties’ autonomy to submit to, and customize ADR, irrevocably
waive all such guarantees?
The significant liberty granted to parties to tailor their ADR to
their initial expectations,3 may give rise to unforeseen contingencies.
A typical example of such highly customized ADR is “escalation
clauses” in contracts,4 which “provide that, in the event of a dispute
between the parties, dispute resolution is to proceed through a
sequence of ‘multi-step levels’ of dispute resolution process.”5 A
common escalation clause is the Med-Arb one.