Med-Arb Australia

Mediation &
Arbitration
Australia

MED-ARB AUSTRALIA
This research essay will basically throw the light on the combination and usage of Med-Arb and
will critically analyze, its advantages, disadvantages, alternatives and other issues relating, along
with the national and international referencing legislations and the applicable case laws.
Mediation Arbitration also known as med-arb which is one of the process of Alternative Dispute
Resolution that uses mediation and arbitration for rendering the legal issues without going to the
court. It is a voluntary process, which means that mutual agreement between both the parties is
required that to without any force. If the issue is not being decided by both the parties then it’s
the arbitrator who resolves the issue1. It is followed by two stages where, in the 1sIt stage either of
the party goes and meet the mediator and he is a person who is trained to help the party to agree
on the issues without taking anybody’s sides. They help the parties in take or reach or try the
negotiation in an agreement. The mediators don’t make any decisions on their own and neither
forces any one for agreeing on their decisions forcefully. They just help the parties to talk with
each other and understand their situation and their main goal is to help the parties to compromise
and agree on things. In the 2nd stage if the parties can't agree with the decision of the mediator’s
help, then the parties may consult the arbitrators. An arbitrator is a trained person who has
professionalism in the subjects like psychology, family laws etc. For example if there is no
understandings between a husband and a wife then the issue may be taken to the arbitrator and
the decision taken by him can be called as the final arbitration award. If the decision of the
arbitrator cannot be agreed then the issue can directly take to the court, where the arbitrator or
the mediator can advise upon the application of the law in the situation, about the agreement of
mediation-arbitration along with the changes that may occur upon signing a separate and a new
agreement2.
1 Richard Hill, Arbitration International, (2014) 13(2)’ MED-ARB: New Coke or Swatch? 105–110
2 Nadja Marie Alexander, New York Dispute Resolution Lawyer, (2019) 11(2) SIAC - SIMC's Arb-Med-Arb
Protocol 85 - 87
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MED-ARB AUSTRALIA
Med-arb is a hybrid form which is used for resolving the dispute and allows the mediator to play
the role of an arbitrator in the unsolved disputes, its use in Australia is operated by the uniform
Commercial Arbitration Acts in all the State and Territory jurisdiction, Where the parties are
required to be carefully consider its potential advantages and disadvantage while resolving their
disputes, The Supreme Court of New South Wales recently provided the guidelines for the use of
med-arb and found that an arbitrator was not mandatory as the parties had not provide any
written consent for the mediator (arbitrator) for subsequently resuming the actors as the
arbitrators3.
Med-arb and arb-med are hybrid forms of dispute resolution. Where the med-arb allows the
mediator of an unresolved dispute for playing the role of arbitrator in relation to all or some
particular issues which remains in the dispute between the two parties and arb-med allows the
arbitrator to take up with the role of a mediator in an unresolved dispute. The advantages of med-
arb includes certain procedural and efficiencies which are time related, where it removes all the
requirements engaged in separate arbitration upon the failure of the mediation. But it is common
for the parties for having concerns which are inherited in the potential conflicts between the dual
mediation and the role of the arbitrator which could have impact on both the mediation and the
arbitration processes.
This process has got many advantages among them the first one is the efficiency where Med-arb
has a very little timeframe. Many people find it as more costly-and time effective.
Momentum. Other than moving away from a mediator to the separate arbitrator, med-arb offers
momentum. Where one can continue to work and can lessens the progress that he/she has made
other than starting it all over again, re-considering their cases, etc. The second one narrows the
3 David J. McLean, Alternatives to the High Cost of Litigation banner, (2015), Med-Arb Agreements since Thione:
Practice Update
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MED-ARB AUSTRALIA
scope of the problems of the parties are narrowed during mediation process; and if they are
obstructed on a particular issue, then they don’t have to start it all over again. The arbitrator can
decide on the issue and hence it saves the time, money, third is entering the Resolution. A
standard mediation will never guarantee any resolution; as it is possible that parties may still take
some time for settling the particular issues with litigation or arbitration process. Med-arb
basically offers an assurance for a timely and binding decision, whether it is reached mutually or
through arbitrating4.
The examples of these concern includes firstly the which is lack of potential procedural fairness:
where It means that a mediator must generally talk with the parties in private and if something is
conveyed to him by a party it must be kept confidential, it may also lead to them subsequently
being partial or towards the opponent parties' in the arbitration if the counter-party has not been
given an opportunity to respond or being heard. An apprehension of bias: Mediation is meant to
be facilitated and conducted in confidence and without having the regards to evidential rules. But
where the mediation fails and the parties resume the arbitration, the arbitrator may make an
award as he already had the knowledge of matters which were disclosed by the parties
confidentially and without any bias, during the mediation course. Although the arbitrator cannot
technically depend upon such matters while making an award, the parties may apprehend that the
views of the arbitrators are well informed with the information which was provided during the
mediation. Secondly the potential lack of candor when parties are less interested in coming
before a mediation because they are aware of the fact that the mediator may later be acting as
4 Mieke Brandon, Leigh Robertson, Conflicts and Dispute Resolution: A Guide for Practice, (Oxford University
Press 2007) 280
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