Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

There has been a lot of debate and much written on the problems and difficulties involved in the process of med-arb in the resolution of commercial disputes. This article seeks to join in the discussion, raising some questions and suggesting ways in which the current procedure can be adjusted to accommodate med-arb or a mixture of any other form of alternative dispute resolution method as a distinct process together with arbitration. The parties can then receive advantages of both flexibility and a binding award, which can be enforced under various national laws and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention”).

II. DEFINITIONS

Med-Arb is an acronym for mediation-arbitration; two separate dispute resolution processes combined to form one process. Mediation is an alternative dispute resolution (“ADR”) process, in which a third-party neutral facilitates a negotiated settlement between the disputing parties.1 The parties (in a mediation) may refer their dispute to a mediator by mutual agreement, not required to have had any form of reference agreement in place. Arbitration, on the other hand, is a private dispute resolution method in which the disputants appoint an independent third-party neutral, referred to as an “arbitrator.” The arbitrator(s) sits as an arbitral tribunal in which there may be more than one arbitrator.2 The disputants give the arbitral tribunal powers,