18 - Making Multi-tier Dispute Resolution Work

Summary

Contributors to this book have discerned a welcome trend towards the greater use of multi-tier dispute resolution (MDR). But they have also identified the most problematic form of MDR as that where the same person acts initially as mediator and then, if mediation is unsuccessful, as arbitrator (‘med-arb’). Despite this, med-arb has significant advantages. It is likely to be cheaper than other modes of MDR and its mediation component enables parties to ventilate their genuine concerns and thereby tailor the resolution of their disputes to their real needs. This chapter considers ways of mitigating med-arb’s difficulties so that parties may fully reap its advantages. It discusses how to make med-arb agreements enforceable; how to balance the informality of mediation with the due process requirements of arbitration; and how to ensure that the outputs of med-arb, whether a mediated settlement agreement or an arbitral award, can be enforced.