Document Type
Book Section
Publication Date
6-2021
ISBN
9781641059114
Abstract
Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than one, providing for the parties’ opt-out or opt-in before the commencement of the arbitration phase, the avoidance of caucuses during mediation, and establishing exceptions to the confidentiality of mediation communications. Also essential is careful and thorough assurance of parties’ informed consent. But some med-arb variations, including the one that is discussed most often—classic same neutral med-arb—do not incorporate any meaningful mitigating procedural elements and present ethical dangers that cannot be sufficiently overcome by neutrals’ self-awareness or the parties’ informed consent. The chapter therefore urges the avoidance of these particular med-arb variations and the prioritization of parties’ self-determination, neutrals’ impartiality, and the fairness and integrity of both mediation and arbitration.
First Page
213
Last Page
239
Num Pages
27
Publisher
ABA Book Publishing
Editor
Omer Shapira
Book Title
Mediation Ethics: A Practitioner's Guide
Recommended Citation
Nancy A. Welsh,
Switching Hats in Med-Arb: The Ethical Choices Required to Protect Process Integrity,
in
Mediation Ethics: A Practitioner's Guide
213
(Omer Shapira eds., 2021).
Available at:
https://scholarship.law.tamu.edu/facscholar/1482
File Type
Included in
Dispute Resolution and Arbitration Commons, Legal Ethics and Professional Responsibility Commons