Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case

54 Pages Posted: 28 Mar 2011

Date Written: March 23, 2011

Abstract

As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediation-arbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and, if the parties reach impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no exceptions for med-arb, parties who seek to utilize this process must execute careful waivers to avoid the possibility that any resulting arbitration award later be vacated by the courts.

Keywords: med-arb, confidentiality

Suggested Citation

Blankley, Kristen, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case (March 23, 2011). Baylor Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1793515

Kristen Blankley (Contact Author)

University of Nebraska Lincoln ( email )

United States

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