Association for Conflict Resolution, Greater New York Chapter (ACR-GNY)
Like it or not, Med-Arb is here to stay: Why not learn about it?
Mediation-Arbitration – colloquially known as "med-arb" – is a hybrid dispute resolution method which uses mediators as arbitrators if the initial mediation is unsuccessful. While the practice itself goes back at least to the ancient Greeks, it has enjoyed only sporadic acceptance as a mainstream commercial dispute resolution mechanism.
Med-arb has enjoyed increased attention in recent years, however, as businesses and their counsel seek more efficient and inexpensive methods of resolving commercial disputes. This program will discuss med-arb’s potential for resolving international disputes at a fraction of their typical cost and length, while still generating an arbitration award that is enforceable under the New York Convention.
An ADR process with various possible permutations (including Arb-Med) but most typically utilizing one neutral who commences with mediation but is empowered to follow with arbitration if it becomes necessary to resolve unsettled dispute issues.
It is sometimes described as a relatively new ADR process because it was named “Med-Arb” for the first time in the 1970’s. However, use of this mix of mediation and arbitration can be traced back to at least ancient Greece and it continues to be widely used in many parts of the world.
Med-Arb was extensively used in the US, starting with the Quakers, and was particularly favorably regarded for resolving labor disputes in World War II. It became quite controversial, however, and fell out of favor among many ADR practitioners at about the time of the “mediation explosion” of the 1980’s and remains controversial even now.
Enthusiastically praised by proponents as incorporating “the best of both worlds” and still decried by many critics as embodying an “irreconcilable” combination, it has undeniably been experiencing a significant upsurge in its use and popularity in the past few years with particular attention most recently being devoted to its use in international disputes.
The Pros and Cons of Med-Arb
The increasing acceptance and more widespread use of Med-Arb may render the frequently passionate debates that used to take place as to whether it should ever be utilized less relevant. But the same pros and cons continue to be rehashed in most articles and programs dealing with it. So we will at least briefly follow suit here.
Why Med-Arb Has Grown in Popularity and Acceptance
Growing awareness of how prolonged and costly arbitration alone can now be.
More success stories by users. [Examples to follow domestically and abroad]
“Discovery” of the possibility of using Med-Arb to obtain an arbitration award enforceable under the NY Convention at a fraction of the cost and time of typical international arbitrations.
Problems and solutions involved in such use.
Possible Variations Available to Overcome Objections to Med-Arb.
Med-Arb Opt-out; Arb-Med; MEDALOA; others.
Required Protective Provisions In Med-Arb Agreements.
Assuring informed consent; waiving or dealing with possible future objections.
Questions and Conclusion
Program Materials (distributed at the event)
Edna Sussman, Combinations and Permutations of Arbitration and Mediation: Issues and Solutions, Chapter 18 in ADR in Business, Volume 2, 2011, editor, Arnold Ingen-Housz (Kluwer Publisher)
Renzo Maria Morresi, The Use of Med-Arb-Like Mechanisms in Italy and Other European Countries, New York Dispute Resolution Lawyer, Spring, 2009
Norman Solovay and Tanya de Sousa, Med-Arb: A Viable Substitute For International Arbitration, ABA India Law News, Fall 2010
The Straus Institute for Dispute Resolution and the Beijing Arbitration Commission Program, adapted in 9 Pepperdine Dispute Resolution L. J. 379 (2009)
Yolanda Vorys, The Best of Both Worlds: The Use of Med-Arb for Resolving Will Disputes, 22:3 Ohio Journal On Dispute Resolution (2007)