what is arb-med?
it is not a typo. arb-med is a hybrid process that combines mediation + arbitration like med-arb does. it simply reverses the order of the two processes.
the parties first participate in an arbitration hearing. they make submissions to a third party decision maker who decides the outcome of the dispute for them. however, before delivering the arbitration award, the parties are given the opportunity to collaborate on an outcome themselves.
with a decision beyond their control looming, some parties can be motivated to retain control of the outcome of the dispute by working with others involved in the conflict to find resolution. if closure is time sensitive, this process can guarantee a result while also offering the chance to settle a dispute through mediation.
arb-med preserves the mediation opportunity + can also addresses many of the concerns that have historically surfaced about using the same practitioner in both phases of the med-arb process. if the arbitrator turned mediator has already prepared their award before mediation begins, information that arises in mediation will not impact their decision. the behaviour of parties in mediation will also have no influence.
the big drawback to arb-med that makes it impractical in many instances is cost. the parties pay for arbitration services that they might not need. there is also a degree of risk for the decision maker facilitating an arb-med process. something may come to light in the mediation phase of the process that would impact their decision; yet, it is too late for them to do anything about it.
i very much like the concept of arb-med, particularly for preserving the mediation opportunity in circumstances where there are time limitations on conflict closure. it is a process that can be worthwhile when the associated cost makes sense.