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

FIle Type

PDF

Buy this Book

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.