“Even the biggest ball of twine unwinds” Jewish
Proverb
Med-Arb
In a situation where parties wish to attempt to reach an
agreement themselves, but still want to avoid the time and
expense of litigation, they may decide to hire the conflict
specialist for a “Med-Arb” process. In this process,
the professional works with the parties in mediation with the
hope that agreement can be reached there. If not, the professional
then changes her role into one of decision maker as an arbitrator.
Frequently Asked Questions
WHY USE THE SAME PERSON TO MEDIATE AND ARBITRATE?
While it is not uncommon to attempt to resolve disputes by
moving along a continuum of methods using different professionals
for each process (private negotiation to mediation to arbitration
to court litigation), it is less common to use the same person
for two different processes. The benefit of using the same
person to act as a mediator, and, if that does not work,
to arbitrate, is that the decision maker has already heard
the parties’ positions and has most of the information
needed to reach a fair decision. That way, you are not paying
the arbitrator for additional time to do what the mediator
has already done. Also, the parties tend to trust the decision
of someone that they have already developed a relationship
with in the mediation process.
HOW DO YOU DECIDE WHEN TO ABANDON MEDIATION AND SWITCH TO
ARBITRATION?
This depends on the circumstances, but will always be a joint
decision between the parties and the mediator/arbitrator. It
is important to give mediation a fair and thorough attempt.
A good mediator knows how to do that and to be sure that the
process is not abandoned too soon. However, while it is often
preferable for parties to tailor their own solutions to a conflict,
sometimes parties can benefit from having an objective third
party make a final decision for them.