Working Paper on Hybrid Alternate Dispute Resolution

Models
Richa Gupta
LLM, KIIT School of Law

Med Arb

While the primary ADR processes (negotiation, mediation and arbitration) as self-
contained processed also offer great advantage over litigation, there might arise
problems in which the proves would require to be tweaked to best serve the interests
of the disputing parties. By drawing elements from the primary processes and
tailoring them, an ADR practitioner can devise a permutation of procedures and
approaches that the requirements of parties without being constrained by prescribed
rules.

Med-arb is a dispute resolution process in which the parties agree that the dispute will
be heard by the mediator with the authority to arbitrate any unresolved issues. Only
when the mediation fails (either on all or some points) does the matter go to
arbitration. Although it assumes many different forms, these two steps are common to
all forms of med-arb. It fuses the consensuality of mediation with the finality of
arbitration.

Med-arb is not a one-size fits-all process and must be tailored to suit the needs of the
dispute. The type of med-arb model adopted would depend on the factors such as,
whether is is an ad hoc process or through a contract, the nature of the dispute, the
expectations of the parties, etc. The most common form of med0arb is the one in
which different a person acts as the mediator and the arbitrator or where the parties
retain the power to decide after the mediator whether they want the mediator to
continue as the arbitrator. Such alternatives generally involve complete separation of
the mediation and arbitration processes which not very efficient in disputes where it is
almost certain that resolution of the dispute would require both mediation and
arbitration.
Arb-Med
Another combination of the mediation and arbitration process is arb-med (as opposed
to med-arb) where arbitration precedes mediation. Mediation is done at the conclusion
of arbitration but before pronouncement of the award. The threat of the unknown and
exposure to ones weakest arguments during the arbitration might provide the
requisite incentive for a party to settle. There are other models which allow parties to
mediate some issues and arbitrate the rest or start with arbitration and allow for
mediation in the middle and then resume arbitration.

Other Models
The other alternatives include a model where the mediator himself issues a non-
binding opinion representing the decision he would have given had he been the
arbitrator. The Med-Arb-Show cause is another model is another model in which at
the end of the mediation session, the mediator renders a tentative decision with an
order to show cause why it should not become final. The mediator may also submit a
recommendation to the arbitrator who is free to either follow it or come to an
independent conclusion.

Mediation and Last Offer Arbitration (MEDALOA) is a hybrid technique that

combines mediation and last offer arbitration. The participants first attempt to reach a
settlement through mediation but if they are unable to do so then they submit their
plans to an appointed mediator who chooses one of the two offers submitted to him.
MEDALOA encourages the parties to negotiate in good faith and reach a fair and
reasonable offer in the hope that their offer will be selected by the mediator. This
technique also reduces the chances the decision being outside the negotiated range or
expectations. Critics of MEDALOA argue that this limitation of options means that
the end solution will necessarily be unacceptable to one of the parties. However, it is
often observed that in their quest to appear fair, the two options submitted by parties
are so similar that such a complete mismatch of expectations never arises.

Apart from the above, mediators and disputing parties themselves continue to develop
newer models of hybrid ADR. The Harvard Negotiation Project has come up with a
new model called the co-med/arb proves which involves two persons, one to act as a
mediator and the other to act as an arbitrator. Both persons are present during the non-
confidential session of the mediation but only the mediator is present during the
private caucus. This model was devised to address the confidentiality and bias
concerns which the standard med-arb model gives rise to.

ADR techniques are by nature flexible and hence, there are several hybrids that cater
to the special needs of each dispute. The above are but a few common hybrid ADR
techniques. Out of all the hybrid ADR techniques developed so far, med-arb in which
the same person serves as both the mediator and arbitrator is the most popular one.

Reasons for the Evolution of Med-Arb

Arbitration is gradually losing its original voluntary character and becoming

increasingly legalised. Arbitration now includes many features of a trial court such as,
prehearing motion practice, extensive hearings, complicated procedures, etc. With
arbitration becoming more time-consuming, costly, formal, complex, inefficient and
adversarial, there are very few advantages that the process can offer today. This rise
in legalisation of arbitration which has made it difficult to differentiate arbitration
from regular Court has disillusioned the former champions of arbitration (namely,
commercial players) and made them look for alternatives.

Some scholars believe that a trend of legalization can be observed even in the
mediation process with the practise of adversarial posturing by attorney and mediator
evaluation gaining momentum. Such highly legalized mediations are becoming more
and more like arbitration where lawyers assume adversarial roles, argue positions and
expect the mediator to find facts. Brian A. Pappas is of the opinion that such
legalisation of the mediation process is one of the primary factors which has spurred
the growth of med-arb.

In spite of the aforementioned demerits to the process of arbitration and mediation,

what cannot be denied is that both these processes have their own advantages.
Mediation is based on the principle of party autonomy and flexibility. It is based on
the idea that a voluntary agreement which goes beyond the dispute into relationship
and communication issues would be more satisfactory and durable. It is also speedy,
confidential and helps maintain relationships. Similarly, arbitration provides a final
solution which is legally sound. Thus, it is desirable to retain the best characteristics
of both these methods while ensuring that as many of their shortcomings as possible
are avoided