Switching Hats in Med-Arb : The Ethical Choices Required to Protect Process Integrity

Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than one, providing for the parties’ opt-out or opt-in before the commencement of the arbitration phase, the avoidance of caucuses during mediation, and establishing exceptions to the confidentiality of mediation communications. Also essential is careful and thorough assurance of parties’ informed consent. But some med-arb variations, including the one that is discussed most often—classic same neutral med-arb—do not incorporate any meaningful mitigating procedural elements and present ethical dangers that cannot be sufficiently overcome by neutrals’ self-awareness or the parties’ informed consent. The chapter therefore urges the avoidance of these particular med-arb variations and the prioritization of parties’ self-determination, neutrals’ impartiality, and the fairness and integrity of both mediation and arbitration