Combinations and Permutations of Arbitration and Mediation: Issues and Solutions

Abstract

The widespread use of mediation and its continuing expansion is well deserved and is a natural consequence of the many benefits and successes achieved by mediation. As parties search for ways to decrease disruption to their business, maintain relationships and find a more expeditious and less costly means for resolving their disputes, attention is increasingly being paid to hybrid processes – to combinations and permutations of arbitration and mediation that can serve the parties’ needs and best fit the forum to the fuss. These combined processes are not new. Arbitrators attempting to settle cases (arb-med) and mediators serving as arbitrators if settlement is not achieved (med-arb) have been the subject of learned articles for many years and have been part of the local culture in many parts of the globe for generations. This chapter addresses two issues that deal with the interstices between mediation and arbitration. The first discussion reviews the questions that arise in connection with an arbitrator serving as a mediator in a dispute after the mediation fails and discusses such a dual role under US law. The second discussion reviews the question of whether a mediation settlement agreement can be recorded as an arbitral award by a mediator who has succeeded in the task of facilitating the settlement and whether such an award would be enforceable under the New York Convention.

Keywords: arb-med, med-arb, arbitration hybrids, mediation hybrids, enforceablity, New York Convention

JEL Classification: K12, K39, K40, K41, K49