Analysis on Med-Arb

Analysis on Med-Arb

CRITICAL ANALYSIS
In this essay, the discussion will be based upon the combination of Mediation and Arbitration
or Med-Arb with its relevance. It will also critically focus on the main issues like its
advantages, disadvantages, alternatives and the other related issues along with its importance
in aspect to national and international legislations.
The concept of Mediation and Arbitration is one of the legal procedures for resolving the
disputes by using both the features of Mediation and Arbitration. The mediation and
arbitration proceedings are dealt without the interference of the court1. It is a discretionary
procedure which states the mutual agreement between both the parties without any pressure.
In med-arb, the process begins initially with arbitration proceeding where the decision by
them is not binding upon the parties who are present for solving their disputes. It has been
viewed that med-arb is an advantageous method for the dispute resolution which enables for a
better settlement. If any issue is not being able to be decided by any of the parties then it’s
the arbitrator who becomes the medium in resolving the same2.
The mediation arbitration is an integrated form of dispute solving the dispute which
authorizes the mediator of an unsettled dispute for presuming the role of the arbitrator. In
Australia, each state and the jurisdiction of the territory is controlled by the uniform
Commercial Arbitration Act. All the involved parties must examine the possible advantages
and the disadvantages of med-arb while resolving their disputes. In this the mediator is
permitted for an unsettled dispute for taking the role of an arbitrator in respect to all the
disputed issues that are existing between the parties3. However, it is common for the parties
for having concerns that the possible conflicts built in the dual mediator or the arbitrator role
which can throw impact on the both mediation and the arbitration processes.
1 Dilyara Nigmatullina, Combining Mediation and Arbitration in International Commercial Dispute Resolution
(Routledge, 2018) 279.
2 Ida Kwan Lun Mak, Alternative Dispute Resolution of Shareholder Disputes in Hong Kong: Institutionalizing
Its Effective Use (Cambridge University Press, 2017) 276.
3 Stephen B. Goldberg and Frank E.A. Sander et al , Dispute Resolution: Negotiation, Mediation and Other
Processes (Wolters Kluwer Law & Business, 2014) 736.
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CRITICAL ANALYSIS
Some of the examples related to this concern are- Possible lacks of procedural fairness which
states that in general a mediator communicates with the parties in confidential premises
which means that if anything conveyed by either of the parties to the mediator then such
information has to be kept in private and not to be disclosed to any random person. An
apprehension of bias is meant by facilitating and conducting the proceedings by forming the
trust without considering the rules of evidence4. But when at the time of the failing of
mediation and the resuming of the arbitration by the parties, then the arbitrator passes an
award on the basis of the communications made by the parties in a confidential manner and
without being unfair.
In this aspect, the mediation process is the possession taken in most of the international
arbitration rules which must be kept wholly different from litigation and arbitration
proceedings. Due to such an issue regarding the disclosing of the private information and the
possible effect on the justified way of present litigation or proceedings of arbitration, this
concept of med-arb is less frequently used in common law and western jurisdictions5.
The advantages of merging arbitration and mediation are usually justified on the following
basis where all such matter related to the dispute including the parties and their appropriate
counsel will be dealt by any judge or an arbitrator who is familiar with their case and further
will be settled by them. Also, an arbitrator and the judge both have the knowledge to hold
mediation at the time of the proceedings. This procedure of med-arb is the best effective way
to settle a dispute at the earliest stage without any delay of time and also avoiding substantive
hearings and other high legal fees6. As with accordance to the New York Convention, any
kind of settlement initiated to the med-arb will eventually get recorded for the final award by
4 Anita Alibekova and Robert Carrow, International Arbitration and Mediation: From the Professional’s
Perspective (Lulu.com, 2007) 302.
5 Christian Lyhne Ibsen, ‘Conciliation, mediation and arbitration in collective bargaining in Western Europe: In
search of control’, (2019) European Journal of Industrial Relations.
6 Michael Mcllwrath and John Savage, International Arbitration and Mediation: A Practical Guide (Kluwer
Law International B.V.,2010) 515.
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