Mediation is the facilitated negotiation of agreements between parties to a dispute. In divorce, for example, a mediator sits with the spouses, or the spouses and their lawyers, and works through the issues that are necessary to “settle” the case, and lead to a written and signed agreement. In a will contest or a damages case, the mediator may help the parties come to agreement on a “number” to be paid by one party to another. The parties themselves are the final decision-makers. The lawyers advise. The mediator supplies the environment in which the parties have an enhanced opportunity to speak, listen directly to each other; and the mediator intervenes as appropriate to inquire, to support, to inform, to provide focus and to generate ideas.
Arbitration, by contrast, is a process that is used when the parties cannot reach agreement themselves. They ask the arbitrator to make the decision for them after a “hearing” at which the parties and/or their lawyers give the arbitrator information that is generally called “evidence”. This includes the oral or written statements of witnesses by formal or informal means, and relevant documents. The arbitrator then writes and issues what is known as an “award”. The award is then usually brought to court for confirmation and a concluding court order, generally called a “judgment” or a “decree”.
Both mediation and arbitration are out-of-court processes that Levine Dispute Resolution Center LLC (LDRC) provides.
So, what is “med/arb”? It is a solution that people choose when they really want to try to achieve a negotiated settlement, but are determined to obtain finality in a timely and efficient way, even if their facilitated negotiated does not result in an agreement. People agree at the beginning that the same person will work as a mediator first to attempt to resolve matters by agreement, but if it fails, the mediator will “change hats”, and make a decision. Sometimes, the mediator turned arbitrator simply makes a decision with the information gained in preparation for and during the mediation phase; and at other times, after a follow up hearing.
Two common examples that are similar to this are called “parent coordination” and “discovery master” proceedings. In the former, the PC’s job is to try to stimulate agreement, but will make an ultimate decision, subject to court review, if the disputing parents cannot agree. In the latter, the master tries to get lawyers to settle on how information will be exchanged in litigation, but makes a “recommendation” for a solution if they do not ultimately agree. Then a judge enters an “order” if he or she agrees with the master’s recommendation.
Med/arb is broader and is intended to be final (see our earlier blog post about arbitration of child custody and child support matters regarding some limitations.) It can apply to any kind of dispute, large or small. A judge cannot order it without the parties’ consent. It can be quite efficient, though some people worry about the arbitrator’s judgment being swayed by what he or she heard from the parties during the mediation phase, from information that was given less formally and maybe less reliably in the mediation stage than might be required in arbitration. The parties need to consider this and plan their rules and process to provide the protections that they feel they need. Remember, the parties make the rules in these private, consensual forms of dispute resolution.
An interesting variant of med/arb is called “arb/med”. We will talk about this in a subsequent blog post.