ment. Mediation did not result in a settlement, but the
arbitrator awarded the full amount of the insurance
Sweeping generalizations about dispute resolution processes
are inherently flawed. There is no one process that is best for
all cases. Nor, for that matter, would it be accurate to say that
med-arb could never be an appropriate process for any case.
“Fitting the forum to the fuss” is one of the key advantages of
alternative dispute resolution.[xiii]
There are, however, four bedrock principles on which such
decisions must rest:
a. Competence. Not every mediator is well qualified to
be an arbitrator, and vice versa. Each of these two
very different practices requires different skills. If the
Parties and Counsel want their mediator to change
hats and become their arbitrator, they need to consider whether s/he has the requisite experience to
handle the assignment properly.
b. Informed Consent. Lawyer and Neutral must make
sure that the Parties understand both the advantages
and disadvantages of using med-arb.
c. Clarity. One of the challenging questions in using med-arb is whether the Neutral will use caucus sessions
and, if so, whether s/he will ignore what s/he heard
if s/he changes hats and becomes the arbitrator. An
informal survey by this author of commercial mediators in the United States suggests that it is virtually a
uniform practice for Neutrals in a med/arb process to
insist on such a ‘firewall’ so as to protect the integrity
and fairness of the arbitration phase of the process.
Many commentators have noted that a Neutral’s ability to ignore information communicated privately in
caucus mediation sessions is akin to a judge’s ability,
in a bench trial (i.e., without a jury), to ignore testimony
after a successful motion to strike the evidence from
the record, or to rule on the admissibility of proffered
evidence (such as documents) that the judge must
see before ruling.
d. Documentation. Because of the complexity of the
laws regulating the use of mediation and arbitration, as well as the differing ethical principles that
apply to each (e.g., barring ex parte communications in arbitration, but not in mediation), lawyers
and Neutrals must ensure that the specifics of their
process are described in an agreement executed
by the Parties and their Counsel. This will ensure
that the Parties are giving their informed consent
to the process, and also enhance the enforceability of any mediated agreement that the Parties
may reach, and the enforceability of their arbitration award if one is needed. In addition, if arbitration
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