can i change my mind after the mediation phase?
the type of med-arb process that i like best does allow for this. here is how it works...
once the mediation phase of the med-arb concludes, if full settlement is not in place, everyone has a "cooling off period" before the arbitration phase starts. during this period, anyone - you, other parties or the med-arbitrator - can opt out of proceeding with the arbitration phase of the med-arb process. arbitration could then proceed another way.
the purpose of this opt-out is to offer a safeguard. if something happens during the mediation phase that someone is uncomfortable with, they are not stuck with an arbitrator they are uncomfortable with. the same principle applies to the med-arbitrator. if something transpired during the mediation phase that doesn't sit well, they can bow out of the process. in such a circumstance, the original med-arbitrator can help the parties appoint a new arbitrator. parties can even pre-desginate an alternative arbitrator or arbitrator selection process to avoid stalling the process in the event a different practitioner is preferred to arbitrate.
what i like most about this design is that it provides an informed consent check-in before arbitration begins. in not exercising the opt-out option, the parties re-confirm their willingness to be bound by the decision of the arbitrator. this closes several loopholes that could stand in the way of conflict closure by providing opportinities to appeal or trying to set aside the arbitration award.
such a process design is not the only way med-arb can be structured. waiting to consider the mediator also arbitrating the matter until the mediation phase is complete is another way to go about this. other forms of the process - particularly when timelines are tight - may not allow for any opting out or mind changes around who the decision maker will be.
what i like about the design explained is how it allows parties to chart a course to conflict closure before the mediation phase begins. they have a sense of who their decision maker will be as they mediate, making it easier to reality check what proceeding to arbitration will look like. it has been said that this improves settlement chances at mediation. at the same time, the opt-out option offers some comfort + security for parties unsure what to expect out of the process.
typically, i find that parties tend to be happy to have their mediator become their arbitrator once they have participated in mediation. once they have become familiar with the practitioner. a big reason i got into arbitration in the first place was at the request of clients who were unable to resolve all of their issues through mediation asking me to stay on to decide their outcome.