MEDIATION-ARBITRATION



Mediation-Arbitration (or med-arb) is a “hybrid” dispute resolution process offering the best of mediation (facilitated negotiation that can result in a voluntary settlement) and arbitration (the parties submit their dispute(s) to their chosen arbitrator to make an enforceable award). In med-arb, the mediator and arbitrator are usually the same person.

Med-Arb is “a dispute resolution process in which the parties commit that they will:

  • attempt to settle their dispute through mediation (the mediation phase)
  • use binding arbitration to resolve any issues remaining after mediation (the arbitration phase)”*

*Source: ADR Institute of Canada (ADRIC) Med-Arb Rules, Version 1-June 2020

Benefits of Med-Arb

  • Convenience Even if the mediator and arbitrator aren’t the same person, the parties will have decided in advance who the decision-maker will be if they do not settle at mediation.
  • Choice Unlike court, where the parties cannot choose the trial judge assigned to them, the parties can agree on and hire their arbitrator. And while a judge may not have any expertise when it comes to the subject matter of the dispute, the parties can choose an arbitrator who does.
  • Timing The parties can often agree on med-arb either before their dispute arises (i.e. in a contract), after there is a dispute but before the mediation, or after mediation.
  • Savings—Cost and Time Med-arb is generally quicker and/or less costly than court. This is because the parties have more control over time and cost because they are not bound by court rules or schedules.
  • Finality The parties can agree that none of them will appeal the arbitrator’s award to the court. Compare this to a court proceeding where one side who is unhappy with a trial judge’s decision can almost always appeal it to a higher court, and sometimes beyond.
  • Privacy With limited exceptions, as long as the parties don’t appeal the arbitrator’s award, the award, then the arbitration itself, remains private and confidential—unlike court, where the public is usually entitled to know everything about your business.
  • Flexibility and Simplicity  The arbitration phase of med-arb can take many forms, depending on the parties’ needs and budget since court rules don’t apply. Some people might want a multi-day formal hearing with witnesses, some may want a shorter, less formal hearing, and others might opt for final offer selection where there are no witnesses, and the arbitrator just selects one of the parties’ final offers to settle.

*Note: Med-arb services are only available to parties represented by lawyers or paralegals licensed by the Law Society of Ontario. For the types of disputes handled by Rose Dispute Resolution, click here.