can i select med-arb after mediation?

yes. however, there are advantages to considering med-arb before you mediate.

the main reason i say that is because i find that parties prepare for + participate in mediation differently if the mediator could become their decision maker. there can be a tendency to prepare for mediation more seriously + to do away with game playing to avoid making a poor impression on the potential decision maker.

some mediation purists have concern that parties will act differently around the mediator if they know the mediator could switch roles + decide the dispute. they fear that mediation participants will be more guarded or not as focused on working with one another as they mediate.

to me, it ultimately comes down to the preference of the parties. i build in an opt-out after mediation if anything is shared that makes anyone uncomfortable with "marc the mediator" becoming "marc the arbitrator"; however, the reason i started to get involved in arbitration to begin with was in response to my mediation clients asking me to (such as when a mediation only settled some + not all issues in dispute).

in my experience, it is less likely the case that something will happen in mediation that makes parties reluctant to have the mediator become the arbitrator + decide the dispute; it is more likely that the parties will establish a level of comfort with the mediator + prefer leveraging their familiarity to provide closure. accoutning for the possibility of discomfort arising can offer comfort though.



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