Med-Arb: The Debate Continues

Author:Michael Erdle
Date:February 05, 2016
 
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A couple years ago Slaw columnists Kari D. Boyle and Ian Mackenzie collaborated on a pair of excellent articles on Med-Arb – Kerri from the mediator perspective and Ian from the adjudication perspective.

These articles insightfully highlight many of the legal, ethical and practical issues surrounding the idea of having a single person act as both mediator and arbitrator – issues that continue to be hotly debated among mediators and arbitrators.

Med-arb has become widely accepted in labour, family and other areas. The main reason is efficiency.

There are many different models of med-arb. All of them rest on the foundation of express informed consent of the parties to engage in both mediation and arbitration. In most cases, there is a pre-existing agreement to arbitrate –either in a contract or under some other adjudication process. The decision to mediate usually comes later, after the dispute has arisen.

There is nothing unusual in a decision to try to mediate a solution, then arbitrate any issues that remain unresolved. It is the idea that a single neutral can do both that raises the unique risks and opportunities of med-arb.

In January, I had the pleasure of moderating a panel discussion on med-arb for the ADR Institute of Ontario’s business and commercial section. Panel members David McCutcheon and Stephen Morrison focussed on some of the practical challenges neutrals and counsel face when adopting this model for resolving commercial disputes, in particular. (The ADRIO panel built on a med-arb session at the ADR Institute of Canada annual conference in Calgary which generated a lively discussion on the benefits and risks. Recordings of both panels are available from the ADR Institute.)

Many people who question the benefits of med-arb say you should look for the best mediator and the best arbitrator for each specific case. It’s difficult or impossible to find someone who will excel in both roles, they say. Why compromise one or both processes?

Because it works in practice, advocates say.

Everyone can save time and money if the same person acts as mediator and arbitrator. No need to get two people up to speed on the issues.

Putting the arbitration on hold for a short time and actively engaging with the parties to facilitate a settlement is often successful. The parties may resolve all the issues, or may narrow the scope of the arbitration to one or two issues that can be decided relatively quickly.

But even the strongest advocates acknowledge...

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