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Beyond Mediation

Now that mediation has become an accepted part of the practice of trial law, many trial lawyers are expanding their skills to include other forms of alternative dispute resolution (ADR).

Since ADR is usually contractual, the parties are at liberty to taylor their agreement to meet their particular needs. Two recognized hybrid procedures are Mediation-Arbitration (Med-Arb) and Arbitration-Mediation (Arb-Med). These hybrid procedures offer the advantage of both the assistance of a mediator (formal negotiator) and arbitrator (decision maker) in one process. The main difference is the order in which the procedure follows.

In the Med-Arb procedure the dispute is mediated first and if the dispute is not settled, the parties move on to the arbitration phase, which would normally be binding. It should be noted that this procedure has the potential for manipulation by the parties. Manipulation may take place during the mediation phase in an attempt to influence the outcome of the arbitration. This sometimes occurs because of disclosures made during the mediation phase, which may be intended to introduce immaterial, prejudicial and/or inadmissible evidence, causing ethical dilemmas based on these disclosures during the subsequent arbitration phase.

In the Arb-Med procedure, the order is reversed, with the parties arbitrating first, followed by mediation. At the conclusion of the arbitration, the arbitrator(s) make a binding decision which is memorialized but not disclosed to the parties. The parties then mediate and if not successful in arriving at a resolution, the arbitrator(s) announce their decision and the parties are bound by the decision. This procedure places the parties, during the mediation phase, in a position of deciding whether they want to control the outcome of their dispute by working out a solution or whether they want to be bound by the unknown solution imposed upon them by the arbitrator(s). Arb-Med avoids the potential for manipulation that can take place in the Med-Arb procedure since a decision has been made before mediation begins.

The use of hybrid ADR procedures takes some courage on the part of lawyers, but under the right circumstances it can be a creative and appropriate mechanism for resolving a dispute. However, unlike some of the other ADR procedures, the use of Arb-Med is a safe and common sense procedure for any dispute that is required to be arbitrated since there is no down-side to attempting to mediate the dispute after the arbitration but before the award is announced. So, for those of you who have a dispute that requires binding arbitration, you may want to consider agreeing to Arb-Med.

Leonard P. Reina is President of Mediation & Arbitration Services, Inc., offering arbitration and mediation services to lawyers throughout the State of Florida, with offices located in Naples, Florida.

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