Considerations for Allowing Communications between Arbitrators and Mediators Appointed to the Same Dispute

The IMI/CCA/Strauss Institute Mixed Mode Taskforce have just published a series of articles on mixed mode dispute resolution in the New York Dispute Resolution Lawyer. These articles are reprinted with permission. The below article was produced by Working Group 7, and authored by Deborah Masucci and Dilyara Nigmatullina.


Introduction

Working Group 7 (hereinafter “WG7” or “the Group”) was charged with the task of examining scenarios focusing on the types of communications between arbitrators and mediators who are not the same persons but are appointed to the same case. Why would they communicate with each other, would the communications impact the proceedings, and what role would the parties play in setting the parameters of the communications?

WG7 found that there are international examples of rules and procedures where the appointment of different persons as arbitrators and mediators on the same matter is contemplated.1 Notably, while the number of such rules and procedures is growing,2 none of them seem to provide for the sharing of information between the neutrals serving different roles. Nor was the Group able to identify examples in practice where arbitrators and mediators appointed to the same matter actually worked together in the manner proposed by the Group.

In the absence of rules and procedures or examples from practice, the Group could not identify “generally accepted principles” or “best practices” in relation to the examined scenarios. As a result, the Group based its investigation on discussions with practitioners and academics and on role-playing some of the scenarios. This allowed the Group to formulate a framework that provides some guidance on how to combine mediation and arbitration in ways that would allow the mediator and the arbitrator to communicate with one another in the interests of seeking faster, less expensive, and/or better outcomes than allowing each process to progress independently.

Conceptual Framework for Communication Between Arbitrators and Mediators When Combining Mediation and Arbitration

When arbitrators and mediators communicate, a central tension may arise because the “rules of engagement,” between parties and arbitrators on the one hand and parties and mediators on the other, may differ starkly. To parties, an arbitrator may be viewed as an authoritative figure who makes binding decisions that may dramatically affect their business. A mediator may be thought of as a trusted person who respects confidences, who may or may not have any authority, and is guided by procedural principles and sometimes substantive principles, such as not providing an evaluation. Mediators are, thus, likely to be more flexible and they need not be as explicit as arbitrators.

Rather than leaving the coordination of communication between arbitrators and mediators to chance or to the appreciation of each neutral, caution dictates that neutrals, parties, and counsel should first discuss what rules and principles may exist. Particular attention should be paid to the procedura