The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements
A dispute resolution process that combines mediation with arbitration is not new, but is reportedly growing in popularity in the United States. The combined process typically takes the form of mediation followed by arbitration (“med-arb”), arbitration followed by mediation (“arb-med”), or arbitration with the possibility of a break in the proceedings for mediation (“mediation window”). A major advantage of these combinations is that they offer parties not only the opportunity to structure and control their own resolution, but also the certainty that if the parties do not agree to a settlement in mediation their dispute will be resolved in a final and binding award. The processes can be fully separated and conducted by the different neutrals, but using the same neutral is an attractive way for parties to reduce costs. It eliminates the need for the parties to identify and appoint an additional neutral, and they can start the second process without having to educate a new neutral about the case.
Ellen E. Deason, Combinations of Mediation and Arbitration with the Same Neutral: A Framework for Judicial Review, 5 Y.B. Arb. & Mediation 219 (2013).