Courts are streamlining their processes around the world. 'Just, cheap and quick' is the objective. One option being entertained is the use of a hybrid process in appropriate cases.

The practice of combining mediation and arbitration with the same person has been traced back to ancient Greece and Egypt. 'Med-arb' as it is known, ensures certainty that, either by agreement or by award, a dispute will be resolved, and you can place a time limit on the process in your med-arb agreement.

Using only mediation runs the risk of not settling all the issues in dispute. If you use only arbitration, you know that all the issues will be resolved, but deprive yourself of the creative options your own negotiated solution could provide.

New laws in NSW this year require the parties not merely to consent at the outset to the arbitrator mediating, but consent in writing, after the mediation has terminated, to the arbitrator proceeding to arbitrate.

They also require the arbitrator, before taking any further steps, to disclose to the parties any confidential information learned during the mediation which the arbitrator considers material to the arbitration.

The kind of dispute most suitable for med-arb is one in which there appears to be 'win-win' possibilities that may be explored in mediation without having much debate about who is right or wrong.


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