WHAT IS HYBRID ADR?
A hybrid dispute resolution process combines two or more traditional dispute resolution processes into one. The most common hybrid process is med-arb in which the same individual or dispute resolution forum acts first as a mediator and then if necessary, as an arbitrator. However commonly, in case of a dispute, more than one type of dispute resolution procedure is provided for in sequence such as negotiation, then mediation, and finally for arbitration, and each of these processes is carried out by a different person.
Med-arb or other hybrid processes are generally used where parties believe a given dispute resolution may require elements of two or more processes and where an individual or forum is available who has the required skills to enact more than one process, also saving time and expense.
DEVELOPMENT OF HYBRID ADR
Med-arb was initially used in the USA while public-sector collective bargaining, particularly for police and fire departments. In many states, the state legislature has called for a hybrid system to resolve such disputes peacefully and efficiently.
Sam Kagel first coined this alternate dispute resolution mechanism and the first hybridized the two-methods 'mediation and arbitration' into one 'Med-Arb' for settling the San Francisco Nurses' Strike in the 1970s.
DIFFERENT FORMS OF HYBRID ADR
This Med-Arb method involves the use of separate neutral experts, each responsible for one phase of the process. The arbitrator in this Med-Arb method attends the mediation as an observer during unqualified exchanges, where only the mediator engages privately with the parties. The arbitrator attends joint exchanges and reviews the documents but does not have access to private communication. If the dispute is settled through mediation, the agreement is made and arbitration is not done. However in case of no satisfactory resolution, the arbitrator steps in being already aware of the developments in the case.
This Med-Arb method involves a single individual who is prohibited to engage in any private communication with the parties and his decision is based only on formal communication and document exchange. This format of disallowing ex parte communications eliminates the concerns of biasness.
- Optional Withdrawal Med-Arb:
This Med-Arb method involves the use of a single neutral with the disputing parties having the option to withdraw themselves from the dispute resolution process post the mediation phase. However, this Optional Withdrawal Med-Arb defeats the main aim of the Med-Arb process aiming towards resolution of disputes between the parties.
This is the opposite of Med-Arb. It starts with the arbitration, whereby the arbitrator will pass an arbitral award, which is kept sealed and later proceeds with mediation. If the mediation is successful, the agreement between the parties governs the resolution of the dispute and the arbitral award is never unsealed. However, if mediation fails to settle all issues, the arbitral award is disclosed to the parties to resolve the dispute. The med/arb process is informal, quick, and cost-saving.
Though the judiciary system or the process of litigation remains to be efficient, trustworthy, and the most resorted means to secure justice or settle disputes, in the past few decades there was a need for the re-emergence of certain pre-existed dispute resolution mechanisms. Thus it can be concluded that hybrid resolution mechanisms and other existing ADR modes are great assets of the legal system, which has assisted in reducing the burden on the judiciary system.