Hybrid Dispute Resolution Processes

One of the main attractions of Mediation is how the process can be adapted to match the needs of its users - unlike many other forms of dispute resolution. One adaptation is to combine mediation with another process, such as arbitration. Several permutations are possible - Mediation followed by Arbitration (Med-Arb) is one possibility; Arbitration followed by Mediation (Arb-Med) is another, where the arbitral award is not announced to the parties unless the mediation step fails to produce a negotiated outcome. In both, the mediator and arbitrator can be the same neutral or different neutrals, and different considerations apply to each.

Alan Limbury, one of the leading thinkers and doers in the mediation field, reviews hybrid processes in two articles: 

(1) Hybrid Dispute Resolution Processes - 'Getting the Best While Avoiding the Worst of Both Worlds?'

This article appeared in the Spring 2009 issue of the New York State Bar Association Dispute Resolution Journal and was presented at the 2009 Chartered Institute of Arbitrators Mediation Symposium.

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(2) Med-Arb: Getting the best of both worlds

In this article Alan Limbury updates the one written in 2009, above, as the Australian States and Territories, led by New South Wales in 2010, are modernising their Commercial Arbitration Acts, enabling parties to opt out of using the mediator as an arbitrator. This article explains how to overcome the acute problem that confidential information will be disclosed.

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Also in this section is an article by the participants in an actual Arb-Med process used to value assets, relating how a neutral had acted as an arbitrator and subsequently as a mediator to assist two parties in a deal involving the sale and purchase of business assets and explaining the process and its implications for the parties and the neutral.

Einstein's Lessons in Mediation by Bob Bulder, Willem Kervers, Michael Leathes and Manon Schonwille

This article was published in the July 2006 issue of Managing Intellectual Property.

To download the article, please click here

Jeremy Lack, Partner with Altenburger Ltd Legal (Switzerland) explores the range of Hybrid Techniques available to parties, discussing the design, development and benefits of combining the best of ADR processes, in Appropriate Dispute Resolution: The Spectrum of Hybrid Techniques Available to the Parties. Chapter 17 in Business: Practice and Issues across Countries and Cultures. Arnold Ingen-Housz (Ed.) (2011)

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There is an interesting discussion of Arb-Med in the IMI Certified Mediators Group on LinkedIn. IMI Certified Mediators can join the Linkedin Group to view and participate in this discussion.

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