1) Would using the same person as both the mediator and the arbitrator have a chilling effect on the mediation? Mediation-Arbitration is actually a hybrid method of resolving disputes that involves a combination of mediation and arbitration. This involves a single individual who performs the role of both the mediator and arbitrator. The process starts with both parties who have in dispute about certain issues choosing one individual to actively participate in their discussions in order to reconcile their conflicting claims and appease their feelings of resentment.
In case the mediation fails to fully resolve their issues or only some issues were resolved and some were not, they go to the second stage which is the arbitration. Some say that using the same person as both the mediator and the arbitrator may be advantageous for both parties. One reason for the same is that using the same individual for two different processes has the advantage of familiarity with the issues involved in the dispute. He is aware of the concerns of both parties and has the needed information which are necessary to make the right decision.
Another reason is that this system is time and cost efficient compared to hiring a different neutral person as mediator and arbitrator. Money and time are not wasted since the arbitrator no longer needs to once again hear both parties and understand their issues. The parties to the dispute merely continue with what they have started. Also, this helps avoid complicating the procedure in arbitration since from the mediation stage the issues could be limited so that during the arbitration phase only the unresolved issues will be discussed.
On the other hand, some say that using the same person as both the mediator and arbitrator in the dispute may have a chilling effect on the mediation. This can be attributed to the different roles a mediator and an arbitrator performs in alternative dispute resolutions A mediator acts as a confidant of the disputing parties. The disputing parties almost always divulge sensitive information to the mediator since they know that the mediator does not decide on the dispute. Likewise, the suggestions of the mediator are merely persuasive and may be rejected by both parties to the dispute.
On the other hand, in arbitration, the arbiter makes the decision after hearing the issues of the parties. Also, the decision an arbiter makes is not only persuasive on both parties but are binding on them. It is this power of the med-arbiter though may be perceived as advantageous by some is widely perceived as disadvantageous. Thus, it is said that “This power is the ‘muscle’ of the process that, depending on one’s point of view, is either a source of abuse[or the strength of the process. ” (John T. Blankenship)
It is because of this reason that some thinks that using the same person as a mediator and arbiter may have a chilling effect on the mediation. Thus, instead of the parties giving the mediator-arbitrator all the relevant and pertinent information he needs to make the right decision, both parties may actually hold back for fear that the information that they will divulge may have an impact on the resolution of the dispute. 2. Could this chilling effect be reduced if the arbitrator gave only an advisory opinion rather than a bindng reward?
The chilling effect mentioned in the last paragraph of the preceding section may actually be reduced if the parties to the dispute are aware that the power of the arbitrator will be reduced and that the arbitrator may only render an advisory opinion rather than a binding award. In this situation, the parties may not be coerced into submitting to the decisions of the med-arbitrator since the decision is only advisory they can disregard his findings.
Coercion may actually be avoided. However, it must also be emphasized that it one of the beauties of using the same person as a mediator and as an arbitrator is its finality. In mediation-arbitration, the parties know that when they undergo the process their dispute will be resolved in one way or another. Regardless of whether either parties agree with the decision or not there will be a settlement on the dispute which is binding and enforceable against both parties.
When the med-arbitrator’s power is reduced, then in effect the whole procedure of hiring the same person as a mediator-arbitrator will be of no sense at all. 3) What would the process lose if the arbitrator gave only an advisory opinion rather than a binding award? If the arbitrator’s power will be reduced and will only be allowed to render advisory opinions rather than a binding award, the first thing that it will lose is its attribute of flexibility. The med-arbitrator will only be an arbitrator by name.
In reality he will be reduced to a mediator. One of the attributes of mediation-arbitration is that its flexibility. According to Gerald Phillips, a full-time neutral in Los Angeles California who specializes in complex commercial and entertainment disputes, mediation-arbitration is the most flexible of all the ADR process because this process could move from mediation to arbitration, and back to mediation. (Gerald F. Phillips) This flexibility will not be attained in the process of mediation or arbitration alone.
If the powers of the mediator-arbitrator will be reduced and he will only be able to render advisory opinions then there will be no end to the dispute. After undergoing the med-arb process and the parties do not agree on the opinion rendered by the med-arb, the disputing parties may not comply with the opinion. The parties may still be forced to hire another neutral arbitrator so that the latter could render a final and binding award on their dispute.
On the other hand, in mediation-arbitration, the parties, knowing fully well that an award will finally be rendered, only need to proceed to the arbitration phase after the mediation phase has been concluded. Thus, according to Mark A. Frankel, “One of the principal advantages of med-arb is that it reduces both the delay and the cost of retaining a second neutral to adjudicate the dispute that has just been presented to the mediator. ” (Mark A. Frankel)
Further, it bears repeating that one of the most important attributes of mediation-arbitration is its finality. When the parties use the same person as their mediator and their arbiter they understand that their dispute will be resolved in one way or another. It is with the understanding that regardless of whether they agree with the decision or not there will be a settlement on their dispute which is binding and enforceable against both of them. When the med-arbitrator’s power is reduced, then in effect there will be no end to the whole process.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 19 February 2017
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