Hybrid Dispute Resolution Processes

One of the main attractions of Mediation is how the process can be adapted to match the needs of its users – unlike many other forms of dispute resolution. One adaptation is to combine mediation with another process, such as arbitration. Several permutations are possible – Mediation followed by Arbitration (Med-Arb) is one possibility; Arbitration followed by Mediation (Arb-Med) is another, where the arbitral award is not announced to the parties unless the mediation step fails to produce a negotiated outcome. In both, the mediator and arbitrator can be the same neutral or different neutrals, and different considerations apply to each.

Learn about the activities of IMI’s Mixed Mode Taskforce >

• Dispute Resolution Mules – Preventing the process from being part of the problem
  Former IMI Director, Michael Leathes, outlines some hybrid forms of dispute resolution processes and why they should be considered.
• Alan Limbury, one of the leading thinkers and doers in the mediation field, reviews hybrid processes in two articles:
  • Hybrid Dispute Resolution Processes – Getting the Best while Avoiding theWorst of Both Worlds?
    This article appeared in the Spring 2009 issue of the New York State Bar Association Dispute Resolution Journal and was presented at the 2009 Chartered Institute of Arbitrators Mediation Symposium.
  • Med-Arb: getting the best of both worldsIn this article Alan Limbury updates the one written in 2009, above, as the Australian States and Territories, led by New South Wales in 2010, are modernising their Commercial Arbitration Acts, enabling parties to opt out of using the mediator as an arbitrator. This article explains how to overcome the acute problem that confidential information will be disclosed.Also in this section is an article by the participants in an actual Arb-Med process used to value assets, relating how a neutral had acted as an arbitrator and subsequently as a mediator to assist two parties in a deal involving the sale and purchase of business assets and explaining the process and its implications for the parties and the neutral.

• Einstein’s lessons in mediation by Bob Bulder, Willem Kervers, Michael Leathes and Manon Schonwille
  This article was published in the July 2006 issue of Managing Intellectual Property.
• Jeremy Lack, Partner with Altenburger Ltd Legal (Switzerland) explores the range of Hybrid Techniques available to parties, discussing the design, development and benefits of combining the best of ADR processes, in Appropriate Dispute Resolution: The Spectrum of Hybrid Techniques Available to the Parties. Chapter 17 in Business: Practice and Issues across Countries and Cultures. Arnold Ingen-Housz (Ed.) (2011)

Further Articles, Documents and Related Links

1. Summary Report of the first meeting in September 23-24 2016 of the International Taskforce on Mixed Mode Dispute Resolution: Inaugural Summit at Pepperdine University, Malibu, CA, USA (2017)
2. Special Masters: How to Help Judges [and other Adjudicative Neutrals?] Extend Their Reach…And Exceed Their Grasp by Merril Hirsh (2017).
3. The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases, 40 Fordham Int’ll L.J.839, by Tom Stipanowich and Veronique Fraser — White Paper based on the Inaugural Taskforce Summit of September 2016, available at http://ssrn.com/abstract=2920785 (2017)
4. Beyond Managerial Judges: Appropriate Roles in Settlement by Ellen E. Deason (2017)
5. Guided Choice Dispute Resolution Processes: Reducing the Time and Expense to Settlement by Paul Lurie and Jeremy Lack (2014)
6. Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, 6 Yearbook on Arbitration and Mediation 1 by Thomas J. Stipanowich & Zachary Ulrich, available at http://ssrn.com/abstract=2461839 (2014)
7. Med-Arb: An Argument for Favoring Ex Parte Communications in the Mediation Phase by Edna Sussman (2013)
8. Combinations of Mediation and Arbitration with the Same Neutral: A Framework for Judicial Review by Ellen E. Deason (2013)
9. The Neurophysiology of ADR and Process Design: A New Approach to Conflict Prevention and Resolution by Jeremy Lack and François Bogacz (2012)
10. From Mediation to Settlement and from Settlement to Final Offer Arbitration: A Case Study of MEDALOA in a Transnational Business Dispute Mediation” by Mordehai Mironi in 5 New York Dispute Resolution Lawyer at p. 77 (2012)
11. Combinations and Permutations of Arbitration and Mediation: Issues and Solutions by Edna Sussman (2010)
12. User Preferences and Mediator Practices: Can They Be Reconciled Within the Parameters Set by Ethical Considerations by Edna Sussman (2009)
13. Developing an Effective Med-arb/Arb-med Process by Edna Sussman (2009)
14. International compendium on the subject of Med-Arb by the New York Dispute Resolution Lawyer, No. 1 Spring (2009)
15. East Meets West: An International Dialogue on Mediation and Med-Arb in the United States and China, 9 PEPP. DISP. RESOL. L.J. 379 (2009) by Thomas Stipanowich, et al (Transcript of international video conference co-sponsored by The Beijing Arbitration Commission and The Straus Institute for Dispute Resolution and moderated by TJS)
16. The Interaction Between Arbitration and Mediation: Vision v Reality by Renata Dendorfer and Jeremy Lack (2007)
17. Commercial Arbitration at Its Best: Successful Strategies for Business Users (Final Report of the CPR Institute Commission on the Future of Arbitration) (2001), edited by Thomas J. Stipanowich & Peter Kaskell, Chapter 1, pp. 18-33.