We recommend using Med-Arb in most disputes.
A facilitated negotiation where an impartial third-party mediator helps the parties resolve disputes on their own terms.
An impartial third-party arbitrator decides the outcome of the dispute.
Med-Arb is a combination of the best part of mediation and arbitration. The parties first try to resolve their dispute with mediation. Any issues that have not been resolved through mediation will be decided by a med-arbitrator. Before starting med-arb, the parties in conflict must decide on what issues will be phased from the mediation to arbitration process. If all parties agree to participate in med-arb, they must abide by the decisions made.
From Mediation to Med-Arb
Mediation is often the ideal alternative dispute resolution process for many types of disputes because it can repair damaged relationships and set out a path forward. Unfortunately, there is no guarantee of settlement through the mediation process. Because of this, parties may try to avoid mediation and proceed to arbitration or litigation. Sometimes one or more aspects of the dispute can be resolved through mediation, but others cannot. As a result, the parties must continue through arbitration or litigation, which is both expensive and time-consuming. This is the crucial and sometimes controversial difference between separate mediation and arbitration processes, as generally the same person acts as mediator and, if necessary, arbitrator. But there are other options including two separate neutrals, one as mediator and the other as arbitrator, or an opt-out type of process.
Med-Arb combines both the mediation and arbitration processes into a single fair, cost-effective and efficient process that guarantees an outcome.
Med-Arb: Things to Know:
- Med-arb has been used for decades in labour and family disputes. It is also used in commercial, construction and condominium disputes and can be used in many other types of disputes including employment and estates.
- In med-arb, the “mediator-arbitrator” first attempts to help the disputing parties work out a settlement as a mediator, but should the mediation fail, the mediator-arbitrator then becomes an arbitrator and makes a binding decision.
- Med-arb empowers the parties to maintain control. This can allow the parties to preserve the relationship and enhances the potential for long-term commitment to the outcomes they reach in mediation.
- Med-arb facilitates communication between the parties by providing a collaborative non-adversarial environment for those discussions in its mediation phase.
- The Med-arb Agreement must be carefully and clearly written so that everyone involved understands the process and believes that it is fair.
- A properly designed and implemented med-arb process can lead to a fair, cost efficient and speedy resolution of disputes that are very important to the parties, but do not justify the expense of using separate mediation and arbitration processes.
An understanding of the med-arb process, especially around the transition from mediation into arbitration, is extremely important. Med-arb is not for every type of dispute but when used properly, it can save both money and time.
To discuss whether your dispute may be suitable for med-arb, please contact us.