Overcoming excuses about avoiding mediation - combining mediation with arbitration

By Ian Walker, Mediation Panel Member

 

We all know that in principle mediation is a good idea. We all know that we have good mediators practising in Devon and Somerset including DASLS civil mediation panel.

 

However, the flow of good mediation referrals is seldom as good as it should be. As lawyers, we often finding excuses not to refer to mediation. The primary excuse is that if mediation fails, the costs of the mediation will have been wasted. Sometimes there are issues of principle – which need to be determined before serious negotiation can commence.

 

My own perspective on mediation is that I was trained as a family mediator in 1996 by Henry Brown (co-author of Brown and Marriott – ADR: Principles and practice; perhaps the leading text on the principles of dispute resolution – both civil and family). I was subsequently trained by Henry as a civil mediator. I am also a child law arbitrator – being a member of the CIArb. As a family law solicitor I am the Chair of the Devon region of Resolution (formerly SFLA).

 

I am currently a member of a working party of the Resolution’s national Dispute Resolution Committee where we are tasked with amending Resolution’s mediation contract – The Agreement to Mediate to incorporate/normalise the combination of mediation with arbitration. Whilst the DASLS mediation panel only deals with civil mediation, the benefits of combining mediation with arbitration are the same.

 

Combining mediation with arbitration means that if the mediation becomes stuck then the mediation can move seamlessly to arbitration where an arbitrator will make a legally binding decision (the legal basis of arbitration is set out in the Arbitration Act 1996).

 

We have looked at different models of and have rejected the model of Med-Arb where the mediator becomes the arbitrator. There are good reasons for this but not enough space here.

 

To combine mediation with arbitration simply requires the parties to sign the arbitration referral form – ARB1 prior to the commencement of mediation – so that arbitration becomes the automatic fall back, or to sign the form at the point in the mediation where it is clear that matters are stuck. The combination means that if the mediation does not succeed then the case can move to a determination in arbitration seamlessly.

 

Together there is a genuine and very attractive alternative to litigation. It is also very possible for the mediation to adjourn whilst a point of principle is decided – and then for the mediation to resume after the arbitrated decision – in order to resolve outstanding matters by agreement.

 

Arbitration is a flexible and quick and bespoke dispute resolution process, however it doesn’t provide the benefits that flow from a negotiated agreement.

 

In my view the combination of mediation with arbitration gives the best of both worlds. Next time you are thinking about a mediation referral, why not ask your mediator about the benefits of mediation with arbitration?

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