Mediation – Arbitration

Mediation-arbitration (med-arb) has become an increasingly popular dispute resolution mechanism for people whose disputes are ongoing and highly conflicted.

This is a good process choice for parties who want a private process that is tailored to meet their needs. In med-arb, Ms. Linton will first meet with the parties (usually without their lawyers present) to screen them for appropriateness for the process, and to understand the issues, their complexity, and how far apart the parties are from settling. She will then meet with the parties, again usually without their lawyers, in a structured and highly focused mediation meeting, with the goal of settling some or all of the issues in dispute.

The mediation is often highly successful and satisfying for both parties, who have often been through years of conflict, often in the courts, and who have often paid tens of thousands of dollars in legal and other fees. It is often surprising how ready and motivated people will be to settle after going through this much anguish, stress, time and money.

Usually, the parties reach a whole or partial settlement which is then sent back to their lawyers for legal advice and review. Sometimes a follow up meeting is required to finalize aspects of the settlement and sometimes the lawyers are required to attend that meeting.

In the event that the mediation does not result in an agreement, the parties will then begin a separate and distinct arbitration process with Ms. Linton. The goal of this part of the process is not to reach a settlement, but to ensure that each party has an opportunity to make his or her case to the arbitrator and respond to the other person’s case. The arbitration hearing usually will take place some days or weeks after the mediation. It will usually involve presenting the evidence of witnesses under oath, and cross examination by lawyers. It is almost always essential to have lawyers present for this part of the process. After all the evidence has been provided to Ms. Linton, the parties and their lawyers will make their arguments to the arbitrator, who will take notes and will also have the benefit of a court reporter if the parties agree to have one present. Again, the hearing is structured so that each person is able to make his or her case and respond to the other’s case, and sometimes adjournments are necessary in order to enable both parties to do this properly.

After the hearing is finished, Ms. Linton will issue an award which is binding on both parties, much like a court order. They may be able to appeal the award if their arbitration agreement provides for the appropriate rights of appeal.

Mediation-arbitration is a good process but it is not for everyone. If the mediation is not successful in helping the parties reach an agreement, they will be required to participate in the arbitration whether they wish to continue with the process or not. Arbitration can be very expensive because it can take many more days than either party expected. And it can result in a decision that makes one or both parties unhappy.

Before deciding to propose mediation-arbitration, seek legal advice on the pros and cons of this evolving process.