Originally from Alternatives to the High Cost of Litigation

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In Part I last month, Gerry Phillips introduced his questionnaire on med-arb practices, and noted that discomfort with making the move to arbitrator from mediator—that is, same neutral med-arb—is receding. This month, he analyzes his survey results, question by question, and provides comments from well-known practitioners.

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Question # 1: “Do you believe that with the written consent of the parties, who are represented by competent counsel and are themselves sophisticated, an arbitrator may agree to serve both as the mediator and arbitrator?” 

Tabulation of Question #1 Answers: “You May Serve”—33; “Should Not Serve”—15.

As noted, 68% of those replying to this critical question said that they—as one respondent put it—believed that “with the written consent of the parties, who are represented by competent counsel and are themselves sophisticated, an arbitrator may agree to serve both as the mediator and arbitrator.” 

Since most arbitrators opined that arbitrators “May Serve” as the mediator and then as the arbitrator, it should be for the parties and their counsel to balance the risks and the benefits as to whether med-arb is appropriate for their dispute.