MED/ARB: A HYBRID
If you are considering mediating a property or commercial dispute and are concerned about not reaching a resolution, here are some tips.
- Mediation can be combined with arbitration. When it is, its is called ‘Med/Arb’. It’s a hybrid.
- The first step is to sign a mediation agreement and name a mediator. However, your agreement will also need to provide that should the mediation fail, the stage will be set to move to arbitration. The same mediator will act as both mediator and arbitrator.
- The mediator will listen to the facts and get all of the parties to discuss their interests. Once this is done, he will know how may interests both sides share. Those shared interests will act as the framework for creative problem solving and a possible agreement.
- Should you reach an impasse, the mediator will change roles and arbitrate the dispute. He will decide the result and provide his reasons.
- Because the mediator may begin to lean toward one side or the other in the course of mediation, his neutrality can be compromised.
- In order to avoid this risk, the parties can insist in their ‘Med/Arb Agreement’ that a different person arbitrate if mediation fails. This way the entire process is completed at the same time.
