Avoiding disputes is like avoiding a common cold. You may want to; you may try everything in your power to ward germs away; you may shy away from those who are infected. But all it takes is one sneeze, one cough, one person not sanitizing before they use your stapler.
Disputes, even for the most mild-mannered of us, are virtually unavoidable. If you breathe, you are susceptible to conflict. Add workplace stress, project deadlines, and clashing personalities, and dispute can seem inevitable. Med-Arb is a hybrid conflict resolution technique that is becoming more popular with businesses.
How does it work?
Mediation is used for a wide variety of cases; while arbitration can be too, it is typically used when there are specific complexities and technicalities involved. In many situations, it is appropriate to opt for mediation-arbitration (Med-Arb), which combines these two processes. The two parties agree to work with a mediator; if they cannot resolve the dispute, the mediator changes hats and becomes the arbitrator. This ability of the Mediator to switch hats must be agreed to in advance by the parties and only takes place when the parties request it – otherwise the mediator keeps his Mediator Hat on.
Phase 1: Mediation
The process begins with a basic mediation; unlike binding arbitration, formalities like pleadings, discovery, or subpoenas are not undertaken. Instead, both parties present their cases, express their viewpoints, and, with the assistance of the mediator, work towards a mutually satisfactory resolution.
If the parties do reach an agreement, a Settlement Agreement is drawn and signed, and the process ends there. If, however, a resolution is not reached during this phase, or there is a specific issue on which the parties cannot find common ground, the process moves on to arbitration – perhaps only on a single issue if all other issues have been resolved.
Phase 2: Arbitration
An arbitrator , usually a subject matter expert with legal training, hears the case and delivers a legally binding decision. The process is usually quite formal with witnesses giving evidence and representatives (lawyers) making legal arguments. In Med-Arb, your mediator can become the arbitrator if the mediation is not succeeding. The advantage of having mediation and arbitration combined, and having the mediator available to act as arbitrator, is that the process is streamlined. Protracted legal situations are costly, time-consuming, and draining; many businesses find that Med-Arb allows a sense of finality and closure. They know that the case will be resolved today even if mediation fails, and parties will not have to go through the cost and hassle of a lengthy litigation process or wait for another day when an arbitration can be scheduled.
Is Med-Arb right for you? It is not a panacea by any means, but it can be an efficient way to settle disputes so you can get back to business.