Sunday, April 27, 2008

Hybrid Is Not Just A Motor Vehicle!

Are you a Med-Arbitrator? [Why?] Would you serve in the dual capacity of mediator and arbitrator in the same matter? [Why?] Or, to misquote Harry Callahan “Do you feel lucky?” [You know, as in Clint Eastwood’s movie Dirty Harry].

The hybrid ADR process med-arb was recently recognized by the Ontario Court of Appeal case Marchese v. Marchese, (2007), 35 R.F.L. (6th) 291 in which a contractual agreement to engage in med-arb was not only recognized but also enforced. The agreement provided that the parties would attend “mediation/arbitration” [note the slash mark] with the same individual. The court stated:

We do not agree with the submission that there is any ambiguity in the words“mediation/arbitration” or that those words mean “mediation or arbitration.” Mediation/arbitration is a well recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration.

While the hybrid process is valid, how it is implemented is critical. I believe it is improvident for the same individual to serve in the dual role [there’s opportunity for co-ADR neutrals here]. Florida’s Mediator Ethics Advisory Committee issued an opinion in an analogous situation, MEAC Opinion 96-002, and opined that by accepting an appointment as Special Master after having served as a mediator in the same matter, the mediator places mediator integrity and impartiality at risk. I also believe that, after the issuance of the opinion, changes to the 2006 Florida’s Rules for Certified and Court-Appointed Mediators and the 2004 Mediation Confidentiality and Privilege Act do not alter the wisdom of the opinion.

The highest number of grievances filed against mediators in Florida is lack of impartiality – think about the consequences of serving as a mediator and, notwithstanding party agreement, thereafter serving the same parties in the same case as the arbitrator. For example, what about the confidential information you’ve learned in caucus outside the presence of the other party – the out of caucus party won’t know about that information – any problem here? Think about party perspective!

So, what are you thinking, “do you feel lucky?!?” If you have a different view, please share it with me.

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