EMPOWERED DISPUTE RESOLUTION
Med-Arb is a hybrid process in which both mediation and arbitration are agreed upon as the means by which disputants resolve their dispute. Generally, but not always, mediation will be attempted first; if it is unsuccessful, the mediator becomes the decision-maker and will make an arbitrator’s award. In other variations, the process will start out as an arbitration; but the process, at some point, may be stalled to allow the arbitrator to see if he can get the parties to settle.
Mediation offers a chance at working things out while retaining the knowledge that if unsuccessful, there will be an award and therefore finality.;
Parties know in advance that a finite amount of time will be dedicated to mediating before an award is made;
Mediator has a thorough understanding of the file and therefore, arguably, is in the best position to resolve the dispute;
Time and money spent in mediation is not “wasted” if the mediation fails;
Process remains informal, comparatively speedy and costs are controllable.
The parties might be less candid than in mediation, knowing that what they say “could be used against them".
Mediation tends to create multiple options; arbitration seeks to narrow potential outcomes.
Mediation allows for private caucusing between the mediator and each of the parties; private caucusing is an anathema to binding arbitration.
In mediation, clients are encouraged to speak freely; in arbitration the process is more formal.
The Alberta Arbitration Act expressly authorizes an arbitrator, with consent of the parties, to become a mediator and if settlement is impracticable to resume his role as an arbitrator.
As Mediators require a slightly different skill set that Arbitrators (Facilitator, Communicator versus Evaluator, Decision-Maker), great care must be exercised to make certain that the individual retained to preform both functions (Med/Arb) has both sets of abilities and is comfortable converting from one to another. If the right practitioner is selected, Med/Arb has enormous potential to offer disputants the best of both worlds in helping them resolve their disputes.