Originially from: World Arbitration and Mediation Review (WAMR)

CO-MED-ARB TECHNIQUE HOLDS PROMISE
FOR GETTING BEST OF BOTH WORLDS
By Christian Buehring-Uhle, attorney at law and visiting researcher,
Harvard Negotiation Project.
The Goal:
Combining the Benefits of Mediation and Arbitration
A number of advantages are commonly attributed to mediation. It is said
to be faster and less expensive than litigation or even arbitration, it is more
likely to lead to mutually satisfactory results, has a higher rate of
voluntary compliance, and is said to avoid the recurrence of disputes more
effectively than adjudication. In addition, mediation can preserve or even
improve the relationship between the disputants. These advantages derive
primarily from the voluntary nature of mediation: the parties craft their
own solution, and both the participation in the process and the adoption of
a solution require the consent of all parties involved.
The voluntary character of mediation, however, is also responsible for
its major drawback: the inability to produce a resolution of the dispute if
the parties fail to reach agreement. The desire to provide a “back-up” has
led to the quest for “hybrid” ADR procedures that combine the benefits of
mediation (an opportunity to reach a consensual solution that can best
accommodate the parties’ interests) with the benefits of arbitration (an
expeditious, impartial and binding decision of the dispute).
The prototype for such a combination is mediation-arbitration (“medarb”)
where the same person first acts as a mediator and, in the event of a
failure of the mediation efforts, subsequently renders an arbitral award.
Med-arb has been praised for its efficiency gains and condemned for
resulting in a “confusion of roles” that jeopardizes both the effectiveness
of mediation and the integrity of arbitral decisionmaking.
This article attempts to design a procedure that would realize most of
the efficiency gains of “med-arb” while avoiding the problems associated
with a confusion of the roles of the neutral. The name “Co-Med-Arb”
indicates a med-arb procedure where the two tasks are performed by
different persons. In this procedure, two neutrals, an arbitrator and a
mediator, jointly preside over an information exchange between the
parties, followed by mediation efforts conducted in the absence of the
arbitrator and, if a complete settlement cannot be reached, a binding
decision of any remaining issues by the arbitrator.