Originally from:

AAA Handbook on Mediation - Third Edition

NUANCES OF MED/ARB: A NEUTRAL’S PERSPECTIVE

Richard P. Flake

I. Introduction

Although arbitration as an alternative dispute resolution mechanism has existed for centuries, within the last several hundred years it has become ingrained into the dispute resolution conscience of several industries, such as labor and construction. More recently it has made significant inroads in other areas, including the securities and employment sectors. While encountering fairly vocal opposition from certain consumer groups, the continued growth of arbitration proves both its need and its popularity among users of all types.
By contrast, the use of mediation, which also has a long, yet somewhat undefined history, has exploded in the last several decades. In the private commercial sector, especially in the construction industry, which has incorporated a mediation step into widely used form documents, mediation is often selected as the ADR process of choice. In many if not most areas of the United States, a litigated case cannot be set for trial without first undergoing mediation, in many instances so ordered by the court. It can fairly be said that mediation has changed the face of ADR in the United States.
Given the undeniable success of both arbitration and mediation, it was inevitable that these two processes would attempt to be merged into what has been referred to by some as a “hybrid” procedure.  The singular point of definition of mediation/arbitration (med/arb)  is that the same neutral acts as both the mediator and if need be, the arbitrator. The end result of this process is that there is no question the dispute will be resolved; moreover it will be resolved more quickly than if an arbitration with a different neutral were to follow an unsuccessful mediation.  The question to be answered is should these two distinct processes be merged?