Our mediators are happy to assist in designing the right dispute resolution procedure for your dispute.
This may involve combining elements of mediation and other more traditional evaluative techniques such as arbitration.
We have recent experience of a major and very complex reinsurance dispute being resolved by means of a mediation in which individual points of difference (notably aggregation issues) were referred out to a separate arbitrator for rapid resolution as and when they arose as sticking points in the negotiation. With the points resolved, the mediation resumed.
“Med/arb” is a term used to describe an even closer combination of the two elements, sometimes with the mediator switching roles halfway through to render an arbitration award in the event that a settlement cannot be reached by agreement. The advantage for the parties is that they know their dispute will be resolved one way or another by the end of the process.
Difficulties can arise in relation to confidential information however. Parties may be more reticent than usual about being frank with the mediator when he/she may be about to rule on the issues. The mediation part of the process can be chilled and become less effective. The parties and the mediator also need to be very clear as to what use the mediator can make of any confidential material received when subsequently arbitrating.
One solution can be to have both a mediator and an arbitrator present for an opening hearing in which both listen to the parties setting out their case. The arbitrator does not then attend any private discussions between the mediator and the parties. The arbitrator only becomes involved again when called upon to render an award in the event that the mediator fails to broker a settlement.
Our mediators and arbitrators are happy to look at all and any of these options in appropriate cases.