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However, a variation, called "co-med-arb, allows the mediator and the arbitrator to jointly conduct a fact-finding hearing at the outset of the dispute. The hearing is followed by mediation, then arbitrtation" (McLean and Williamson). For the purposes of this review, however, it is the synergy that the processes provide together that are important -- that the two standing alone are no where near as powerful a problem solving tool as they are when joined together.
Depsite what many believe about the process, there is no magic bullet and yet in Cecala v. Moore, the U.S. Court in Northern Illinoise said that "an agreement to mediate all dusputes [from] contract law was properly categorized as arbitration" -- yet arbitration and mediation may also be used interchangelably without too many procedural difficulties (McLean and Williamson). It is really up to the parties that enter into the process to decide if Med-Arb will be binding, and at what juncture. This is almost a perfect argument for the synergistic process that arises by using the two in tandem. No longer do parties need an agreement that requires the previous formalized process of first stepping through a mediation hearing, allowing that process to conclude, then moving on to arbitration. Instead, "med-arb agreements are different because they are intended to bring the dispute to an end, one...
The real strength in this synergy is that it can be seamless -- like a menu driven option, one can atually use it for all levels of disputes; from minor that may require only a small portion of an actual mediation procedure, to one that may require a more lengthy process in which multiple parties are involved, witnesses called, legal information and exhibts (proofs, legal documents, financial records, etc.) are needed, generally reserved for arbitration. By putting the med-arb process together, all stakeholders in the process win by having the option to go as far as necessary, up to actual Court, to solve the issues at hand. Of course, not all jurisdictions recognize this process, but the tremendous benefits provided by its seamless integration far outweigh any potential negatives.
REFERENCES
Compte, O. And Jeheil, P. (1995). "On the Role of Arbitration in Negotiations."
CNRS Panel Discussion Papers. Cited in:
http://www.enpc.fr/ceras/jehiel/abritrator.pdf
McLean, D.J. And Wilson, S. (2008). The Context of Med-Arb Agreements.
Dispute Resoultion Journal. 63 (3): 28-40.
REFERENCES
Compte, O. And Jeheil, P. (1995). "On the Role of Arbitration in Negotiations."
CNRS Panel Discussion Papers. Cited in:
http://www.enpc.fr/ceras/jehiel/abritrator.pdf
McLean, D.J. And Wilson, S. (2008). The Context of Med-Arb Agreements.
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