The late Donald F. Dickey of NH is co-author of this article. His diligence, intelligence, patience, and expertise in the law and in ADR helped make this article possible. Thanks Don!
Concerns with Med-Arb
The two most important concerns with med-arb are the inherent potential for “coercion” and the risk that confidential information gained during mediation may taint the med-arbiter’s final decision. These are concerns that parties need to fully understand when considering med-arb as a process choice for resolving a specific dispute. The best safeguard available to prevent these concerns from materializing is to allow each party the right after the mediation phase to “opt out” of having the same neutral continue into the arbitration phase (Blankenship 37; Peter 98-99, 116). The potential loss in efficiency (i.e., the extra time and money required in shifting to a stand-alone arbitration) is justified by the important protection it provides to each party, and the incentive it provides for the med-arbiter to maintain impartiality (Id.). Coercion
When the power to decide the dispute is invested in the mediator, it gives him the power to pressure the parties into settlement. Unlike the “ordinary” mediator using case evaluation, when the med-arbiter evaluates a case, it is highly suggestive of how the legal and factual issues of the case will actually be decided (Peter 95). And, when the med-arbiter “makes a settlement suggestion based on legal evaluation, this is basically a pre-decision” (Id.). The concern that this raises for some commentators is that “what appears to be a negotiated resolution may be perceived by the parties as an imposed one, thus diminishing the degree of satisfaction and commitment” (Peter 94-95).
This concern with a “coerced” decision loses force when the parties have made a free and informed choice of med-arb, a process that explicitly authorizes the third party neutral to impose a final binding decision (Blankenship 36). “Mediation with muscle” is a built-in tool available to the neutral, and the parties relinquish some power of self-determination when they give up their ability to “walk away” (Id). Moreover, as Blankenship writes, “any competent, ethical neutral must be sensitive to the line between appropriate pressure to settle and inappropriate coercion” (Blankenship 36). It is in the med-arbiter’s professional interest to gain the parties’ trust during the mediation, as they observe (1) his skill in using the mediator toolbox to support each party’s participation and (2) his even-handedness as they witness his reactions to the legal and factual issues (Hoffman 22-23). Strong-arm tactics by the med-arbiter would likely cause a party to feel unheard, disrespected, or unfairly treated, thereby impinging on that party’s sense that “justice is being done” (Welsh 820-26). Yet this potential for abuse exists in traditional mediation as well “if the neutral, due to incompetence or overzealousness, allows it to happen” (Blankenship 36). The imminent power of the neutral to render a decision does not by itself mean that the process during mediation is inherently coercive or that the party will feel “pressured” by how the med-arbiter facilitated the parties’ negotiation during mediation.
The second major concern with the med-arb process is that confidential information gained during mediation may inappropriately influence or be used by the neutral during arbitration (Blankenship 35). “The real premise of this criticism is that the med-arbiter cannot be completely neutral in the decision-making phase, having gained some information, perhaps unfavorable, in confidence in the mediation phase” (Id.). The abstract discussion in the literature as to whether the neutral as mediator can or cannot successfully “disregard” confidential information gained in mediation is of far less consequence than the parties’ perception of med-arbiter’s fairness and even-handedness in a specific case (Welsh 823). The competent and ethical conflict professional can protect parties considering med-arb by fully informing them of the confidentiality issue and explaining to them the “specific procedures and safeguards” available to address it, such as the ability of either party to opt-out after the mediation phase. Whether or not confidentiality will be significant depends more on the particular circumstances and challenges, and the parties involved, in a specific dispute. For example, if both parties are willing to commit at the outset that the parties will always remain in joint session in mediation and all issues will be out on the table, this diminishes the risk that confidential information will inappropriately influence the med-arbiter in reaching an arbitral decision.
Ethical Issues – Self-Reflecting
In reading through the Model Standards of Conduct for Mediators there are no contradictions in the use of the Med-arb procedure. Studies of successful Med-arbitrators have recently revealed that they typically start the arbitration process as if there had been no mediation, hence building in an ethical dividing line (Telford 2000). That being said, both the AAA and JAMS do not recommend Med-arb using the same neutral (Phillips 2005). Each ethical question raised speaks to both the mediator standard of conduct and to each of us individually as we try to prepare ourselves for this dual role. Some of the following points have been discussed already, yet the following list of issues may help you discover your openness to using Med-arb with your clients.
Mediator Neutrality; Can the mediator remain unbiased and neutral during the mediation phase if she knows that she will have to make the final decision on unresolved issues?
Coercive Influence; Because mediation is voluntary and party centered, the mediator has few options for being directly coercive in the mediation process. When you combine Mediation and arbitration, it can create a situation where the mediator can put coercive pressure on the parties during the mediation via the threat of impending arbitration (Moore 387) (Telford 2000). What does this do to the mediation process and the relationship between all of those involved?
Mediator Becomes Forceful; Having the power of going to arbitration, may force the parties toward decisions that reflect the views of the mediator rather than their own. How does this affect the promise of self-determination in the mediation process?
Mediator Undermines the Med process; The parties may feel more inclined to concede to a forceful mediator. Would you as a mediator, with the power of final decisions, change your style of mediating, and how?
Confidential Information Transfer; Arbitrators flowing from the mediator role may carry information that has no business being in the arbitration. The argument asks how the arbitrator can possibly forget this information and act in an impartial way? How can an arbitrator not take into consideration final offer information gained during the mediation?
Parties use Mediation as a Preparation for Arbitration; Simply put, if the parties know it may go to arbitration, the mediation process may be affected by the parties trying to gain the sympathy of the decision maker early. Would you, as a party in a Med-arb, change the way you act toward the neutral? How does that effect you as the mediator?
Parties hold back info; Worrying that specific info may influence an arbitrator, parties may simply be less forthcoming during a mediation knowing that arbitration is to follow. Does this make the job of the mediator harder? Do the parties miss out on an opportunity?
Trainings and levels of experience; Arbitrators untrained in mediation have no business mediating. Mediators untrained in arbitration, or the specific area being discussed, have no business arbitrating. The point here is that by combining the two processes in one person it becomes harder to find a neutral that is qualified to run both processes well. Where would you draw the experience line in your Med-arb?
There is no way that these ethical dilemmas can be overcome in the model of Med-arb. However, with a properly skilled Mediator/Arbitrator, they can be minimized so that the parties can benefit from the advantages the med-arb process has to offer, which neither mediation nor arbitration can offer individually. (Telford 2000)
Discussion of various hybrid forms of Med-arb
When discussing, researching, and exploring the possibilities of Med-arb, one can’t help but notice that other combinations of mediation and arbitration may be a better fit for certain conflicts. Why not change the neutral midway, or bring in a mediator during the arbitration, or have the mediator hand the arbitrator her best opinion as to what should happen, or put the arbitration first? As the ADR world expands, it seems that the sky is the limit as to potential variations both within specific process models, and within and in between what some are calling “Hybrid “ models. It is very exciting to open one’s mind to what may be best for a particular set of clients and we invite you to study the Appendix A chart to help open some new possibilities in your mind. As you explore the chart, allow yourself to stay open to new possibilities beyond the hybrid models listed. Write down your thoughts as they come to you. Who knows, next weeks’ clients may need a brand new process nobody has thought of yet…
No matter the model(s) of dispute resolution you understand and practice, no matter if you are a Judge or a volunteer mediator, you must ask yourself the question “what do my clients need and how do I help them get there?” each and every time you start a new case. If your answer is always the same, consider that you may not be serving all your clients in the best possible way. Given the right circumstances, med-arb has some enormous advantages over mediation and arbitration alone. Med-arb also has real and dramatic drawbacks if applied to the wrong conflict. It is up to each of us as conflict resolution professionals to understand the options available to our clients. We must understand as many of the intricacies involved as possible so that when we choose to use a specific model, hybrid or not, it fits, and works. Some of the med-arb drawbacks outlined in this paper may strike you as ethically un-resolvable yet we hope that as you add your own voice and imagination to the information we have presented, it will spark new ideas and twists that may allow you to find a place in your own practice for hybrid process. There are rules in the business we practice, but each and every day practitioners are finding new ways to break the rules, hold onto the standards they feel strongly about, and help their clients get to the place they need to get to.