Med-Arb? Maybe

By Louise A. LaMothe

For many years, I would have answered this question “no.” Now I’m a fence sitter. In the course of many years of practice as a full-time neutral, I have run across conflicts in which the parties want a solution using a single neutral who agrees both to mediate and to arbitrate. Accordingly, I have developed the ground rules for using it that I discuss here.

Mediator, then Arbitrator?

From the parties’ viewpoint, having a single neutral sometimes makes sense. Initially at least, lawyers and their clients are most interested in getting the dispute resolved using all of the tools at their disposal. Having a mediator who can also decide any issues that arise later is, of course, more cost effective for them, since the neutral who understands the case already does not need to be brought up to speed on the issues for decision after mediation.

On the other hand, most ADR neutrals are understandably wary, because we see the pitfalls. In mediation, we are acting as facilitators of the parties’ settlement discussions. While our style may be evaluative – in that we discuss the likely outcomes if one or more of the issues in the case were presented to a decision maker – we and the parties know that we are not serving in that altogether different, adjudicatory role.  Moreover, an indispensable tool in our mediation work is the series of private caucuses we hold with each side alone; indeed, we may not ever meet in joint session. We tell the parties that we will keep in confidence the information they divulge in those private caucus sessions. Some of this information is admissible evidence, but much more is not and its reliability is untested. It is not entirely possible for me to forget the private information received in a caucus when deciding an issue that remains after the mediation’s conclusion.

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