IMI’s Mixed Mode Taskforce is examining and seeking to develop model standards and criteria for ways of combining different dispute resolution processes that may involve the interplay between public or private adjudicative systems (e.g., litigation, arbitration, or adjudication) with non-adjudicative methods that involve the use of a neutral (e.g., conciliation or mediation), whether in parallel, sequentially or as integrated processes.
The Task Force is a combined effort by the College of Commercial Arbitrators (CCA), the International Mediation Institute (IMI) and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The Task Force has been charged with examining and seeking to develop model standards and criteria for ways of combining different dispute resolution processes that may involve the interplay between public or private adjudicative systems (e.g., litigation, arbitration, or adjudication) with non-adjudicative methods that involve the use of a neutral (e.g., conciliation or mediation), whether in parallel, sequentially or as integrated processes, which the Task Force has called “Mixed Mode Scenarios.” The terms of reference for the Task Force can be found under ‘Documents’ on this page.
Practically speaking, this means exploring and investigating mixed mode practices from various cultural and legal standpoints, including information about current experience, best practices, and, where appropriate, the development of protocols to guide future implementation of mixed mode processes by neutrals more broadly. Some examples of questions to be explored are as follows:
- What are the dynamics of and appropriate uses of non-binding or non-adjudicative processes (including non-evaluative facilitation as well as non-binding evaluation or advisory opinions) in promoting settlement?
- In what ways may neutrals help parties tailor better dispute resolution processes, such as mediation “setting the stage” for arbitration and vice versa?
- Under what circumstances, if any, might it be appropriate for a mediator to become an arbitrator or judge, or an arbitrator or judge to become a mediator, during the course of resolving a dispute?
- Since recent studies show settlement is becoming increasingly likely during the course of commercial arbitration, should arbitrators be more deliberate about helping to set the stage for potential settlement? If so, what are appropriate ways in which this might be done? Might arbitrators, for example: (1) make decisions on discovery/information exchange issues or rule on motions which dispose of some aspects of the dispute; (2) encourage mediation or work with the parties to arrange mediation windows in the adjudication timetable; or (3) offer parties preliminary views on issues in dispute or issue preliminary findings of facts or conclusions of law?
- What is the proper protocol for arbitrators or institutions to follow when parties ask them to convert a settlement agreement into an arbitration award? What other issues arise in enforcing mediated settlement?
- In what ways, if any, might non-adjudicative neutrals and adjudicative neutrals appropriately communicate in the course of working together on resolving a particular dispute, whether in a sequential, parallel or integrated manner?
- What combinations of non-adjudicative and adjudicative processes are most appropriate in the real-time management of conflict in ongoing relationships? These questions are of growing global significance in the management of conflict.
The Taskforce exploring these issues is comprised of international experts in arbitration, adjudication, conciliation, litigation and mediation. The Task Force is divided into six different Working Groups (see ‘Composition‘, below.)
A key premise of our work is that perceptions and practices regarding the mixing of modes in domestic and international dispute resolution are often heavily influenced by one or more of the following: (1) national culture(s) and legal tradition(s), (2) the local legal profession; (3) practices in specific arenas of conflict; and (4) party priorities in specific transactions or circumstances. This premise has been borne out by recent feedback from the initial results from the Global Pound Conference (GPC) Series.
Keeping these important influencers in mind, the Task Force’s Working Groups will be asked to consider and to collect descriptions of experiences with mixed modes in their assigned Working Group topics, taking into consideration, among other things:
- What culture(s) and legal tradition(s) are at work in this example? How might they have affected the choice of or nature of the process?
- What impact did lawyers [or the neutral] have on the choice of or nature of process?
- What is the commercial or relational background of the dispute(s) (e.g., construction, IP, IT, labor, etc.)? What impact did this have on the choice of or nature of the process? Were specific published dispute resolution procedures used?
- To what extent was the choice of and nature of the process dictated by the particular priorities of the parties or other specific circumstances?
- What are likely trends and points to watch out for in the future in relation to such processes (e.g., using internet and information technology).
The people participating in this Task Force and its Working Groups do so in their personal capacities. Their views, opinions and output should not be interpreted as reflecting the positions of any of their employers or other organisations with which they may be affiliated.
The series of short articles summarizing each working group’s work has recently been published in 14 New York Dispute Resolution Lawyer2 (2021), by the New York State Bar Association. You can find an overview and a description of each working group’s efforts to date by clicking on the weblink New York Dispute Resolution Lawyer – Vol 14 No 1 – New York State Bar Association (nysba.org).
Those participating in this taskforce do so in their personal capacities. The views, opinions and output of the taskforce do not necessarily reflect the position of the member’s employer or other affiliation.
The Mixed Mode Taskforce has seven working groups:
- Upstream conflict prevention and management (e.g. stepped clauses)
- Mediators setting the stage for bespoke processes (e.g. guided choice)
- Mediators using non-binding evaluations and proposals
- Arbitrators setting the stage for settlement
- Neutrals ‘switching hats’
- Finality and enforceability of facilitated and arbitrated mixed mode outcomes
- Future processes: interactions between mediators and arbitrators
Members of each working group can be viewed in the below spreadsheet; each working group, WG1-WG7, is found in a different tab.
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