37 Pages Posted: 22 Feb 2017 Last revised: 6 Jun 2017
Date Written: 2017
As mediation and other settlement-oriented intervention strategies have come into broader use in commercial dispute resolution, different views have emerged regarding the nature and purpose of some of these processes as a result of both individual choice and cultural or systemic factors. The potential for divergent perspectives or practices is enhanced when dispute resolution processes are mixed or matched. "Mixed mode" approaches involving the interplay between arbitration, evaluation and mediation are an increasingly important feature of the landscape of national and international commercial dispute resolution. This white paper was developed in connection with the convening of an international task force to explore the spectrum of national and international practices and perspectives associated with several mixed mode dispute resolution scenarios, including (1) mediators using nonbinding evaluation or mediator proposals as a means of encouraging settlement; (2) mediators "setting the stage" for arbitration by facilitating process discussions; (3) "switching hats": mediators shifting to the role of arbitrator in the course of helping resolve a dispute (med-arb), or arbitrators shifting to the role of mediator; (4) arbitrators using various other approaches to set the stage for settlement; (5) arbitrators rendering "consent awards" based on a negotiated settlement; and (6) other kinds of interaction between evaluation, mediation, and arbitration.
Keywords: Mediation, Evaluation, Arbitration, Conciliation, ADR, Facilitation, Med-Arb, Arb-Med, Mixed Mode, Hybrid, Dispute Resolution, Conflict Resolution, Consent Award, Settlement
Suggested Citation: Suggested Citation
Stipanowich, Thomas and Fraser, Veronique, The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases (2017). Fordham International Law Journal, Vol. 40, p. 839, 2017; Pepperdine University Legal Studies Research Paper No. 2017/4. Available at SSRN: https://ssrn.com/abstract=2920785