Mediation-Arbitration (Med-Arb) is a process where a neutral third party conducts a mediation process with the parties to assist them in resolving the issues between them. If some, or all, of the issues are not resolved by an agreement reached in mediation, the neutral third party becomes an arbitrator who determines the issues that were not settled in the mediation process. The parties testify, call witnesses to give evidence, provide documentary evidence and make arguments to the arbitrator. The arbitrator then makes a decision that is binding upon the parties. Parties in a Med-Arb process must agree in writing that this process will be followed before the mediation part of the process begins. The written agreement that is signed becomes the Arbitration Agreement if the process moves to arbitration.
Before choosing a Med-Arb process, you should consider whether you are comfortable with the same person acting as a mediator and then, if you do not reach an agreement, as an arbitrator who will make a decision that binds you. If the process becomes an arbitration, the arbitrator can only base his or her decision upon the evidence provided during the arbitration process and not on the information received as a mediator. Sometimes, knowing that the process will ultimately result in a binding decision if you cannot reach an agreement causes people to approach the mediation more seriously and work harder to reach an agreement.
Clients who come to me for Med-Arb are screened separately by a third-party screener for domestic violence and power imbalances. I also require you to receive independent legal advice before you sign the Mediation-Arbitration Agreement because I believe that it is important for parties to understand how my role shifts when the process changes from mediation to arbitration, the rules that will govern the arbitration and how my decision as an arbitrator binds the parties.
The process outlined in the mediation section is followed in the first stage of a Med-Arb process with the added steps of a third-party conducting the screening and a lawyer providing each person with independent legal advice on the Mediation-Arbitration Agreement before the process starts. I still conduct individual intake interviews at the beginning of the mediation stage of this process because these interviews are important for a successful mediation process.