Originally from Alternatives to the High Cost of Litigation

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In 2008, we published an article exploring the potential for federal courts to conclude that mediation and arbitration, or med-arb, agreements did not qualify as “arbitration” under the Federal Arbitration Act. 9 U.S.C. § 2 (2011). See David J. McLean & Sean-Patrick Wilson, “Compelling Mediation in the Context Med-Arb Agreements,” 63 Dispute Resolution Journal 28 (2008)(available at http://ow.ly/Q8Oob). 

We observed that the term “arbitration” is undefined in the statute and its interpretation is subject to a circuit split. By 2008, the First, Fifth, and Tenth U.S. Circuit Courts of Appeals had held that an ADR procedure must be binding to qualify as “arbitration” under the FAA. 

In contrast, the Fourth, Eighth, and Ninth Circuits had held that an ADR procedure did not need to be binding to qualify as FAA “arbitration.” 

Our conclusions seven years ago still hold: Med-arb provisions should be included within the definition of “arbitration” under the FAA. Since the original article, many other courts have weighed in on med-arb agreements’ enforcement, and it’s time to revisit the area