Med/Arb – is a combination of mediation and arbitration in which the parties agree in advance that they will mediate, but that if a dispute is not resolved through mediation, they will proceed to binding arbitration. In one type of med/arb, the mediator conducts the mediation, the arbitrator listens only to information shared in the general sessions, and considers the non-confidential written submissions of all parties. In such a case, the arbitrator reaches an award but does not share the award or the findings until an impasse in the mediation has been declared. If impasse is declared by the mediator, the arbitrator’s ruling is disclosed and is binding. 

In some instances, the parties may determine in advance that the same individual will serve as an arbitrator if the dispute is not entirely resolved through mediation. In this situation, the mediator/arbitrator first serves as a mediator and tries to persuade the parties to come to a negotiated settlement. Should that effort fail, the mediator switches hats and issues a binding award as the arbitrator. Although use of the same individual is less expensive and may be more efficient, some neutrals are reluctant to serve as a mediator in a case in which they will serve as an arbitrator. In addition, the parties may be reluctant to share confidential information with a mediator who, after declaring impasse, may hand down a binding decision.

It is recommended that clients seeking to utilize med/arb consult with ADR, LLC, before entering into a formal agreement. The experienced attorneys at ADR, LLC, can assist individuals and businesses in developing a framework for an effective med/arb system that will best meet client objectives.