In the last number of years there has been a resurgence of interest in med-arb as a process that can be used outside family law and labour disputes. Not the med-arb of the past, which many saw as a cobbled together blend of mediation and arbitration, but med-arb as an innovative stand-alone process carefully designed to the needs of the parties in a dispute. This article is brief overview of the med-arb process with a suggested model that should assist practitioners in using this dynamic process in appropriate cases.
Leading the way, the ADR Institute of Canada has created a Med-arb Rules/Guideline Working Group composed of med-arb practitioners from across Canada and will soon release its Rules and materials which provide a best practices framework to help practitioners, along with a new Chartered Med-Arb Designation.
There is currently a reluctance outside of family and labour law to embrace the concept of med-arb as a dispute resolution process. This is primarily because the two models used in most of Canada have been a single neutral as both mediator and arbitrator as one model+, or a two-neutral model, one as mediator and the second as arbitrator. While the first model has received the bulk of criticism from the legal community and in court decisions, the second model is more expensive, and replicates separate, but linked, mediation and arbitration processes.