Lawyers and their clients come into arbitration or mediation wanting a result. They want to win, but they also want expeditious and cost-effective dispute resolution. This article will explore how to use a mixture of mediation and arbitration in the same case with the same neutral, combining settlement-focused mediation and arbitrator adjudication, where the parties agree that the mediator can shift to the role of arbitrator, or vice versa.
Known as med-arb, arb-med or arb-med-arb, these multimode processes have resulted, in my experience, in a very high rate of settlement.
The basic questions
Med-arb: You’re in a mediation but not reaching settlement. Would it be useful if the mediator switched to the role of arbitrator and gave a ruling on some issues within the case or even the entire case? This is med-arb, a dispute resolution process in which the parties agree that the mediator first attempts to mediate the dispute and, if mediation is unsuccessful in fully resolving the dispute, switches to the role of arbitrator.
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In Fair v. Bakhtiari, 19 Cal.Rptr.3d 591 (Cal. Ct. App. 2004) the appellate course reversed the trial court's refusal to enforce a mediated settlement and compel arbitration pursuant to its...By James Coben