|
Mediation-Arbitration (often referred to as “Med-Arb”) is a hybrid form of dispute resolution process: The parties agree with the impartial third party (“neutral”) assisting them to work at resolving their dispute through mediation first, on the explicit understanding that if mediation does not result in a settlement, the neutral will make a binding decision on the issue.
This process combines mediation and arbitration, which are usually two distinct forms of dispute resolution, into a single, two-step process: The neutral first works to facilitate a mutually agreeable settlement of the dispute through normal mediation efforts between the parties. If the matter is resolved in that fashion, a binding agreement is drawn up to document the settlement. If mediation efforts do not resolve the dispute, the same neutral reconvenes the matter as an arbitration hearing under the Arbitrations Act of Ontario, and makes a binding decision that results in an enforceable award under that legislation.
Experience shows that the vast majority of disputants will resolve the matter during the first step, mediation. The possibility of a binding award being made by the neutral, if the parties do not settle it themselves during mediation, may create a greater incentive to resolve the issue consensually. While there is some controversy in the ADR field over having the same neutral conduct interest-based mediation and then “switch hats” to conduct an arbitration based on law and evidence, the potential advantages outweigh these concerns for many parties engaged in a dispute, particularly where a timely decision is essential.
The biggest advantage of this hybrid process is the ability to achieve a prompt resolution of a dispute with a minimum of expense and inconvenience. It minimizes the costs and delays associated with going over all the evidence two separate times, once by a mediator and a second time by an arbitrator or judge. It also allows the parties to maintain a degree of control over the management of their dispute which traditional litigation or a standard arbitration process does not provide:
During the interest-based mediation phase, no settlement can be imposed and the parties must reach agreement to resolve the matter. If this is not achieved, they can choose the level of formality and procedure for the subsequent arbitration process which best suits their circumstances and the nature of the dispute. In either case, finality at an early stage is available through either a written agreement documenting their successful mediation, or through an arbitration award.
The senior legal practitioners who form the mediation and arbitration panel of Alternatives to Court have the skills and experience to separate sensitive and confidential information received during the mediation process (which may not be relevant or admissible evidence in an arbitration or courtroom) from admissible documents, witnesses and arguments at a subsequent arbitral hearing. Just as judges routinely are able to rule on admissibility of evidence and disregard information that does not meet that test, our panel members are able to separate their roles as a mediator and as a subsequent arbitrator, in the Med-Arb process.
We offer practitioners with decades of court room experience, who have invested themselves in additional training in interest based negotiation and dispute resolution, and who are sensitive to the emotional needs of individuals caught up in the disintegration of their family units and to the limitations of the public adjudicative process.
|
