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Mediation-Arbitration – Mixed Mode Dispute Resolution

Duncan W. Glaholt

The fact that informed parties and their counsel, in spite of its contradictions and instability, still choose same neutral med-arb is an interesting fact. The choice of same neutral med-arb seems like the equivalent of driving without seatbelts: it is contrary to conventional wisdom and when it goes wrong, it is impossible to fix. This choice seems to be a vote in favour of outcomes over process. Whereas rationality and legitimacy are the hallmarks of a sound legal system and a sound legal system is a hallmark of good government, same neutral med-arb partakes of neither, or, too little of both, yet it survives. My own experience with construction industry disputes between parties who expect to have repeat high-value interactions in the future indicates to me that the problem to which same neutral med-arb is responding is a structural problem within the adversarial system itself.

In this short article I begin by testing same neutral med-arb against  the rationality and legitimacy conditions of a valid dispute resolution system and offer two examples of modifications to the adversarial approach to dispute resolution, one collaborative and one inquisitorial, that may provide better alternatives to same neutral med-arb.