DIFFERENT FORMS OF MED-ARB PROCEDURES
The two most common forms of alternative dispute resolution are arbitration and mediation. Both the methods have their own set of drawbacks which is why a hybrid ADR has been introduced. Hybrid ADR is a combination of arbitration and mediation and it is known as med-arb. The main aim of this procedure is to provide the best of both the mechanisms.
The procedure of med- arb commences with mediation. The parties try to resolve their issues through mediation. If the parties are unable to reach on a settlement, then the arbitration proceedings begin. The parties are motivated to resolve their disputes through mediation, because if the disputants do not reach on a settlement then the decision- making power goes in the hands of the arbitrator. The award made by the arbitrator shall be final and binding on both the parties.
There are certain variations to this procedure, which are as follows:
- Overlapping Neutrals- In this form, two neutral third parties are appointed. A mediator as well as an arbitrator is appointed for resolving the dispute. During the mediation, proceedings, the arbitrator attends the joint sessions, but he is not permitted to attend the private caucuses of the mediator and the disputants. This mechanism can be effective because the arbitrator will be aware about the issues of the parties. Since mediation is more about negotiation, the parties will communicate more effectively, this will allow the arbitrator and the mediator to understand the complexities of the dispute. But this method can be very costly as two neutrals are appointed for resolving the dispute.
- Plenary Med- Arb- In this form, a single neutral plays the role of an arbitrator and mediator. But the neutral is not permitted to conduct private caucuses with the disputants. Throughout the procedure, only joint sessions are conducted between the disputants and the third party. This form may not be effective. The parties might not reveal important information relating to the dispute, if private meetings with the mediator is not conducted. Hence, the procedure of mediation may become futile.
- Braided Med- Arb- In this form, only one neutral third party is appointed. The procedure is slightly different. The parties may interrupt the arbitration proceedings and continue with mediation, if they are willing to enter into a voluntary agreement. The neutral third party can provide very valuable suggestions and settlement proposals if the parties continue the mediation process. But these suggestions may create a pressure on the parties because in certain cases these suggestions turn into strong recommendations, which may appear coercive.
- Med- Arb With Optional Withdrawal- In this form, the parties have a right to opt- out of the arbitration process even if there is no outcome from the mediation proceedings. In all other forms, it is mandatory for the parties to resolve their dispute through arbitration if the process of mediation becomes futile. But this particular form, gives an option to the parties to voluntarily withdraw from the process. This optional withdrawal makes the whole procedure of med- arb ineffective because the assurance of finality is eliminated. If the mediation process is unsuccessful and the parties withdraw from the procedure, they have to commence with a new dispute resolution mechanism. This may prove to be a very costly procedure.
All the above- mentioned forms have their own benefits and drawbacks. It is very important for the disputants to choose the procedure that is best- suited for resolving the dispute in hand.