When disputing parties tire of mediation (because it is too “weak”) or fear arbitration (because it is too “controlling”), they seek an Alternative Dispute Resolution solution that is “just right.” Recently, I’ve heard a number of highly talented negotiators, and one famous law school, endorse med-arb as the best of all ADR worlds. The advantages, however, come with caveats.
Through mediation, parties in conflict negotiate a dispute settlement with the assistance of a neutral mediator. The materials, design, and strength of the deal all belong to the disputants. If they can’t agree, the deal collapses. Each party’s attraction to controlling the settlement terms through negotiation is tempered by the frustration that each lacks power to unilaterally impose a solution. Sometimes mediation doesn’t feel sufficiently “muscular.”
Originally published on Law.com on October 1, 2014.
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