We have discussed arbitration, mediation and the variant, “med/arb”, in previous blog posts. Med/arb is a process in which an impartial party attempts to facilitate negotiations that will hopefully lead to a resolution of disputes between or among them. If the negotiation fails, then the mediator switches “hats” and makes a decision for the parties as an arbitrator, to which the parties are generally bound. Recall that one of the perceived problems with med/arb, is that people worry that information that comes to a mediator in a confidential process that encourages candor and positional risk-taking, may result in an arbitrated result based on information that may not otherwise have come before the arbitrator, had not he/she been privy to the mediation first.
Arb/med solves this problem. First, the disputing parties offer evidence (information) to the neutral acting as arbitrator at whatever level of formality that the parties themselves have agreed to use. The arbitrator makes a decision, but does not disclose it to the parties at this point, and hopefully never will, because the arbitrator puts that arbitration “award” into his/her “pocket” and then changes hats, this time to that of a mediator. He/she then works with the parties in an effort to facilitate agreement between them. The mediator has not been at all influenced by relaxed disclosures before the decision is written, and the award will not change by what occurs in the later mediation.
If the parties then settle their matter, the arbitration decision has no legal significance, and the parties will never know the result, unless they agree for reasons other than legal impact, they agree to have the arbitrator-turned-mediator disclose it. At Levine Dispute Resolution Center LLC, we see this hybrid process having great merit in those cases where the parties either want or need to know that their dispute will end expeditiously, privately and cost-efficiently, even if they cannot settle it themselves; but they are unwilling to do that until that have a good faith and sincere effort to maintain control over their own controversy by making the full effort of negotiated settlement, first.