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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.

 

Advantages:

• 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.

 

Possible Disadvantages:

• 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.