2536 Columbine Circle
Lafayette, CO 80026
Robin N. Amadei, Director
phone: 303-604-1960
fax: 303-604-6278
Email: ramadei@aol.com
Common Ground Mediation and Coaching, LLC
Helping People Reach Common Ground



Mediation/Arbitration, or Med-Arb, as it is often referred, is a process whereby a neutral third party assists people in conflict to negotiate resolution of their dispute.  If no settlement is reached, however, the neutral renders a binding decision.[1]  Although there are many advantages to this process, for med-arb to legitimately serve clients, it needs to be conducted properly.   Also, practitioners and clients should thoughtfully consider the attributes of a given case prior to referring a case to med-arb.  This article will discuss the advantages and disadvantages of med-arb, when med-arb may be appropriate and ways in which the process can be conducted to maximize the advantages and minimize the dangers associated with its use.   

I.  Advantages and Disadvantages of Med-Arb 

 A.  Advantages of this process are: 

            1.  Parties have the opportunity to try to resolve the dispute themselves.  If they can not do so, however, they know that they will have a quick decision and finality to the situation in a short time frame.[2]

            2.  The process is 'leveraged' in that the parties know that there will be a decision rendered if they do not arrive at a solution themselves.  The 'threat' of an adverse decision can encourage parties to work even harder to come to resolution themselves.[3]

            3.  The parties do not need to 'start over' with a new arbitrator or judge if mediation fails.  Therefore, the parties can save both time and money by using med-arb.

            4.  In the mediation portion of med-arb, the neutral is often privy to more depth of information than that which is typically presented in an adversarial proceeding.  This information potentially can be used to render a more thoughtful award.  Of course, as discussed below, this aspect can be a double-edged sword.

            5.  In the med-arb process, the parties often establish a relationship with the neutral and hopefully develop more trust in the neutral due to this relationship.

            6.  An award made in the 'arb' portion of med-arb can readily be converted to a court order, whereas a typical mediation agreement, unless pursuant to a court action, is typically enforceable as a legal contract as opposed to a court order.

B.  Disadvantages of Med-Arb are:

            1.  The parties may relinquish their own power to decide how to resolve the matter too soon because they know that the neutral will decide if they do not.

            2.  Moreover, the neutral may not have the incentive to fully assist parties to creatively work through an issue in mediation.  The tendency may be to try to resolve the matter in mediation for a short while and then immediately go into the arbitration modality.  Often very creative solutions to problems can be forthcoming from parties at the table when time is given to process information. 

            3.  The parties may be reluctant to fully disclose information in the mediation segment because each party may want the neutral to hear his/her side of the issue in its best light in the event that the matter is arbitrated.[4]

            4.  Similarly, parties' attention may be focussed on currying favor with the neutral, as opposed to trying to help the other party understand one's underlying interests.  Without fully exploring underlying interests it is that much more difficult to craft a negotiated settlement.

            5.  As often said in the context of juries hearing inadmissible evidence in court,  "you can not un-ring a bell".  In a mediation context, a neutral often hears information that would not be stated in an adversarial process.  It would be difficult for the neutral, serving as an arbitrator if mediation is unsuccessful, to discount such information. 

            6.  Med-arb may have insufficient procedural protections, especially if the matter is ultimately arbitrated.  One strong advantage of litigation is that there are rules of evidence and procedure, as well as the value of legal precedence (prior decisions of law that may apply to a given case must be followed).  In a typical arbitration, the parties negotiate such standards.  In med-arb, at least in the mediation portion of the process, evidentiary and procedural rules do not apply.  If the parties then flip into arbitration, procedural protections may not have any real effect.  Potentially of even more concern is that there are very limited rights of appeal of an arbitrated decision.  Unless some fairly significant overreaching or conflict of interest on the part of the neutral is shown, the parties would not be entitled to a new trial (with the exception of certain types of labor cases) if they disagree with a neutral's arbitrated decision.[5]  Note:  If the parties enter into an agreement in the mediation portion of the process, the agreement would be a legally enforceable contract between the parties.

2.  When is med-arb appropriate?

There are circumstances where the advantages of using med-arb outweigh the disadvantages and would be appropriate, especially if conducted by a neutral that clearly understands how to properly use this process.  For example, med-arb can be used successfully in 'chronic' post-decree divorce cases.[6]  The chronic case often occurs where parties to a divorce are continuously in conflict over the children and tend to return to the court frequently with motions to modify custody, time sharing and other arrangements.  These cases, which are emotionally draining and expensive when brought to court, could better be resolved in med-arb.  This model has been successfully used to address these types of cases in Boulder for ten years.  Practitioners in Boulder have reported that this model works to lower post-divorce conflict and in some cases to actually modify behavior of the parties in conflict.[7] 

Another situation in which med-arb is appropriate is where the parties are involved in a business deal and where time is of the essence.  Med-arb works best where the participants have relatively equal bargaining power and ability and wish to resolve the matter quickly.[8]  Construction projects and real estate contracts often contain critical time lines.  Therefore, the traditional litigation system, which by definition is time consuming, is unsuitable for these cases.  Invoking mediation alone, however, may not be responsive enough in cases of this type, in that if the mediation is not successful  the parties would  need to begin again with another process.  If med-arb is selected, in the event that the mediation portion of the process is unsuccessful, that same neutral can then arbitrate.  Finality of the dispute is therefore assured within a short time frame.

3.   Serving as an effective med-arb neutral.

Neutrals conducting med-arb sessions need to be extremely clear about their roles in this process, both internally and with their clients.  Before recommending med-arb to a client the advantages and disadvantages of med-arb as applied to the case at hand should be weighed.  Assuming that the process is selected, it should be specifically crafted for the given case.  For example, some situations require more formality and procedural guidelines than others.[9]

Neutrals must be cognizant of the procedural protections that the clients may be giving up by using med-arb as opposed to litigation.  In the event that mediation is unsuccessful and before flipping from the mediator to arbitrator role, the neutral must be mindful of using proper procedures.  For example, it may be necessary to adjourn for the day so that the case can begin anew using arbitration.  The neutral must also take care to not be inappropriately influenced by information learned in mediation that may not be relevant to the matter to be decided in arbitration.  Care must also be taken to listen objectively to new information that may be presented in arbitration, as opposed to prematurely jumping to conclusions based upon information obtained in mediation.  

One of the strengths of mediation is the empowerment of parties to the dispute.  A neutral using med-arb should be vigilant to not compromise this value.  When med-arb is selected by clients, neutrals must do all that they can to enable clients to settle the matter in mediation if at all possible.  All the techniques that good mediators employ when conducting garden variety mediations should be used in med-arb.  Neutrals should resist the tenancy to pull out the arbitration 'trump card' too soon. 

Procedurally, it is important to mediate all issues that can be disposed of using this process before arbitrating the issues that can not be mediated.  For the neutral to remain credible as being unbiased and impartial, it is key for him or her to not render decisions early in the process that could be construed to favor one party or the other.  For example, in a multi-issue case, if the parties reach an impasse on the first issue and the neutral renders a decision in favor of one party, the other party may not feel that the neutral will be unbiased as to subsequent issues.  This impression can be exacerbated if the neutral decides the next issue(s) in favor of that same party.  Even more troubling may be the tenancy for the neutral to try to decide issues in favor of each party equally to retain credibility, even though the decisions themselves may not be appropriate given the facts of the case at hand.  

There are times of course, where an issue must be decided immediately and there is insufficient time to mediate all issues before deciding on the one that is imminent.  In this rare circumstance, the neutral may not have the luxury of choice and must arbitrate the issue.  This is an exception to the preference stated above and should be done with caution.

4.  Conclusion.

Med-arb is especially well suited to 'chronic' post divorce decree cases and business disputes in which time is of the essence.  Although there are many advantages to using med-arb, there are disadvantages as well.  Parties and practitioners need to be mindful of these disadvantages and compensate for them wherever possible.  In an effort to resolve a given case quickly, the hallmark of mediation, which is the empowerment of parties, should not be lost.   Neutrals must be clear about their roles in med-arb and take care not to overstep their bounds in an effort to serve their clients.


Prepared by Robin N. Amadei, Common Ground Mediation and Coaching, LLC, 303-604-1960.  All rights reserved.

[1]  The Alternative Dispute Resolution Committee of the Colorado Bar Association.  Manual on Alternative Dispute Resolution. Denver: Colorado Bar Association, 1992

[2] Izbiky, Julian & Savage, Cynthia (1989, May).  ADR: explanations, examples and effective use.  The Colorado Lawyer, pp. 843-857.

[3] Ibid.

[4] Marcel, Kathleen W. (1993, July). Alternative Dispute Resolution in Colorado.  The Colorado Lawyer, pp. 1445-1448.

[5]CRS ' 13-22-214.

[6] Johnson, Dale E. (1994, November), Use of Joint Custody with Mediation/Arbitration to Manage Chronic Cases, The Lawyer's Perspective. Boulder, CO: Boulder Interdisciplinary Committee.

[7] Id.

[8]  Manual on alternative dispute resolution, p. 11.

[9]  Backerman, Robert  (1994, November).  Implementing Joint Custody with Mediation/Arbitration, The Case Manager's Perspective.  Boulder, CO: Boulder Interdisciplinary Committee.

Helping People Reach Common Ground