MED-ARB AND ITS VARIANTS - Dispute Resolution Journal - Vol. 65, No. 2
Richard Fullerton provides dispute resolution services for parties to construction, real estate, homeowner associations, and common interest community disputes. He serves on the arbitrator and mediator panels of the American Arbitration Association. He can be reached at (303) 229-8668, firstname.lastname@example.org, or his Web site at www.richardfullerton.com.
This article, which is adapted from an article entitled “Alternative Dispute Resolution: The Ethics of Mediation-Arbitration,” published in volume 38 of The Colorado Lawyer (May 2009), is reprinted with permission. Copyright (c) 2009 The Colorado Lawyer and the Colorado Bar Association. All Rights Reserved.
Originally from Dispute Resolution Journal
A look at the ethical problems raised by this hybrid dispute resolution process and its variants.
In the realm of alternative dispute resolution methods, mediation and arbitration are the most popular.1 Despite their popularity, each process has detractors—mediation for its lack of a binding decision,2 and arbitration for its limited right of judicial review3 and the lack of party control. 4 These perceived shortcomings have caused parties to seek additional dispute resolution options with the hope of finding a conclusive, fair alternative that also is efficient.
One possible alternative to individual processes is a combination of mediation and arbitration known as med-arb. Sam Kagel has been credited as the first to combine the two methods into one when settling a controversial nurses’ strike in the 1970s.5
The hybrid med-arb differs from using mediation and arbitration sequentially in that if the mediation phase of med-arb is unsuccessful in resolving the entire dispute, the mediator becomes the arbitrator, holds an arbitration hearing and issues a binding award. Med-arb eliminates the need to start over with a new arbitrator who is wholly unfamiliar with the dispute. Despite the efficiency of med-arb, it has serious limitations that derive from having the same neutral conduct the mediation and the arbitration. The danger is that the core principles of each process may be compromised.6
This article takes a closer look at med-arb to determine whether complaints of ethical compromise are justified.