1. Med-Arb or Arb-Med: Ethical and Practical considerations for single neutrals
Donna Ross
September 8, 2015

2. Terminology ADR Med-Arbiter or Med-Arbitrator or Mediator-Arbitrator
Alternative Dispute Resolution
Amicable Dispute Resolution.
More common to hear Arbitration and ADR.
Med-Arbiter or Med-Arbitrator or Mediator-Arbitrator

3. Definitions Mediation Main Types of Mediation Voluntary
Parties Control the Process
Main Types of Mediation
Facilitative
Evaluative
Transformative

4. Definitions Conciliation Arbitration Determinative
Statutory
Civil Law Countries
Arbitration
Determinative
Binding – Private judge
Enforceable as judgment
(Internationally under New York Convention)

5. ICC Step Clause
Any and all disputes arising out of or related to this Agreement, the arbitrability thereof and/or to the relationship between the parties, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with said Rules. The place of arbitration shall be Paris, France and the language of the arbitration French.
In the event of any such dispute, the parties shall first submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within forty-five (45) days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute shall be finally settled as set forth in this paragraph.
It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within ninety (90) days from the date of the arbitrator's appointment. Each party shall pay its own attorney’s fees, expenses and costs.

6. The Main Hybrid Processes
Med-Arb
First the parties mediate.
Whatever issues aren’t resolved will be determined by arbitration.
Arb-Med
An arbitration is conducted and the award drafted.
Then the parties mediate, and either settle on their own or the award resolves their dispute.
Arb-Med-Arb
Used primarily to enable a consent award in the Med-Arb scenario.

7. Variations on a Hybrid Theme
Early Neutral Evaluation
Arbitration (Bracketed, Last Offer, Final Offer, Bifurcated FOA, Baseball, Night Baseball, Non-binding)
Mini-trials
Summary Trials
Expert Determination
Executive Appraisal
Eval-Med-arb
Private Judging
Co-Med-arb
Adjudication
Braided Med-arb
Dispute Review Boards
MEDALOA
Early Case Evaluation
Shadow Mediation
Case Management
Mediation Assisted Settlement
Pendulum Arbitration
Mediator’s Proposal

8. International and Domestic Use
Institutions
ICC ICDR CEDR SIAC HKIAC WIPO CPR JAMS CIArb
“unless otherwise agreed by the parties”.
More frequently, an “Opt-In” process.

9. International and Domestic Use
Countries
Asia
China Japan India Bangladesh Hong Kong Singapore
Other civil law countries
Germany Switzerland Austria Sweden Italy Brazil Chile
Common law countries
US Canada UK South Africa Australia
Domestically
Labor/Employment Family Will Contests

10. International and Domestic Use
Australia
CAA NSW Article 27D
(3)  Mediation proceedings in relation to a dispute terminate if:
(b)   withdrawal of consent by party
(c)  withdrawal of consent by the arbitrator
(4)  without the written consent
(7) the med- arbitrator must disclose to all other parties f the information the arbitrator considers material to the arbitration proceedings.
IAA –does not allow for Med-Arb.
Section 23D(4) only deals with confidential information.

11. Advantages Efficiency Flexibility Finality Arbitral Award
Cost and Time
Flexibility
Party Control, Relationship Preservation
Finality
Arbitral Award

12. Advantages MSAs - Mediated Settlement Agreements Consent Awards
In most countries, only enforceable as contracts
Europe: EU Directive 2008/52/EC
Initiative for a “New York Convention” for MSAs
Consent Awards
Enforceable under the New York Convention, the rules of major arbitral institutions, Model Law Article 31
Some jurisdictions the tribunal must be constituted before the mediation.

13. Risks Challenges to Enforceability Bias/Lack of Impartiality
Coercion of Parties
Breach of Confidentiality
Non-Compliance with Rules or Laws
The main culprit:
Caucussing or Private Sessions

14. Safeguards Choice of neutral Rules and Laws that Govern the Process
Trust
Skill set/expertise
Impartiality
Rules and Laws that Govern the Process
Institutional
General – UNCITRAL Model Law
Local – Law of the Seat or Place of Enforcement
Adopt IBA Guidelines?
Professional/Ethical Rules

15. Safeguards Process Design and Conduct
Pre-Mediation or Arbitration Conference
Ensure Parties’ Understanding – not just Counsel
Med/Arb agreement/Procedural Order/Terms of Reference
Set forth detailed process
Clear Delineation Between Mediation and Arbitration
Caucussing or Not?
If so, disclose or disregard information?

16. Safeguards Process Design and Conduct Consent, Consent, Consent Waiver
Clear, Informed and Written
Waiver
Waive right to challenge the award
Opt-out
For Parties
For Neutrals

17. Safeguards Reasoned Award Consent Award
Based only on facts and law submitted during the arbitration phase.
Use of information learned during mediation could expose the award to vacatur, even if the parties consent in some jurisdictions.
Include description of process, consent and waivers in the award.
Include issues agreed by the parties during the mediation phase (partial consent award).
Consent Award
If mediation is successful memorialize the agreement in an award rather than an MSA.

18. Med-Arb or Arb-Med: Ethical and Practical considerations for single neutrals Thank you for your attention