Med-Arb
One neutral. Two processes. One agreement, written first.
Med-arb is mediation that converts to binding arbitration if the mediation does not resolve the dispute. The parties get a real attempt at settlement and a decision if one does not come, from a single appointment — and they take on one real objection to get it. This page is mostly about that objection.
The shape
Mediation first. Arbitration only if it is needed.
The parties appoint one neutral for both phases. The matter is mediated. Whatever settles, settles, and is recorded. Whatever does not settle moves to arbitration in front of the same neutral, on the terms the parties agreed before any of it began, and ends in an award.
The commercial case for it is time and cost. Without it, a mediation that does not settle means starting again: a new neutral, a second round of briefs, another set of dates months out. Med-arb removes that gap, and whatever narrowing the mediation achieved carries into the arbitration instead of being re-litigated.
It is not arb-med. The two names are one syllable apart and the processes are not interchangeable. If a contract names one of them, check which one before relying on it — against the rule set the contract adopts, not against this page.
The objection
The fairness problem is real.
Met here rather than further down, because it is the reason to read the page.
The neutral who heard our client in caucus then decides the case. How is that fair?
That is the objection, and it is the right one. A mediator learns things a decision-maker is not supposed to know — what a party would really take, what they are afraid of, what their own counsel thinks of their case. In med-arb the same person may go on to decide it. The answer is not that the concern is overstated. It is that med-arb is only defensible where the parties agree to it knowingly and in advance, in writing, with the switch and its consequences settled before the mediation phase begins.
What happens to what we say in caucus?
That is the question the agreement has to answer before anyone says anything. A med-arb agreement should settle three things in terms: what triggers the move from mediation to arbitration; what a party may say in caucus without it entering the arbitral record; and how a party flags, at the time, that something is being said for the mediation only. Vagueness on any of the three is what turns a procedural objection into a real one.
When is med-arb the wrong process?
When the parties are not equally informed or equally advised, because the caucus asymmetry compounds. When one side needs a finding on the record more than it needs a settlement. When the relationship is already so damaged that a joint session is unproductive and shuttle mediation would be the better tool on its own. And whenever a party agrees to it reluctantly: grudging consent at the outset is not the foundation a process like this one runs on.
What I undertake
Three commitments, and the third is the costly one.
The section above is what the process requires. This is what I do.
Agreed first, or not at all.
The switch is agreed in writing before the mediation phase begins, or I do not take the appointment. I will not convert a mediation into an arbitration on the day because the room has run out of road.
A party can put something beyond the arbitral record.
If a party tells me something in caucus they are not prepared for me to rely on as arbitrator, they say so at the time, and it does not enter the arbitral record.
And if that leaves me unable to decide, I step out.
If I cannot decide a remaining issue without relying on something said to me in confidence, I say so and step out of the arbitral phase rather than decide on it.
That is the expensive one, and it is the answer to the objection that costs the neutral something rather than the parties. It is also less costly in practice than it sounds: the arbitral phase runs on the evidentiary record, not on the caucus.
Rules
There is a published rule set for this.
The ADR Institute of Canada publishes ADRIC Med-Arb Rules, developed by a task force and presented to the membership as a
discussion draft at ADRIC's 2019 annual conference, and designed, in
ADRIC's words, to work in tandem with ADRIC's existing Mediation Rules and
Arbitration Rules
. They were drafted for domestic commercial disputes, and ADRIC notes
that parties may also apply them to international or non-commercial
ones.
ADRIC's own framing is worth quoting: med-arb is
not merely the merging of separate mediation and arbitration
processes, but a unique process designed to meet the needs of
particular disputants
, one that requires a high level of practitioner competence to do successfully
.
Why this practice
Both processes, in one practice.
I accept med-arb appointments now, in commercial matters. The three commitments above are the part to read before proposing one: the med-arb agreement does the work, and it does it before the mediation starts.
Next step
Start with a call.
Tell me the shape of the matter and who is involved, and I will tell you whether I am the right neutral for it. Inquiries are answered within two business days.