A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one. The most common hybrid process is mediation-arbitration, or “med-arb” which uses the same individual or dispute resolution forum first as a mediator, and then if necessary, as an arbitrator. This is distinguished from the common circumstance where more than one type of dispute resolution procedure is provided for in sequence, such as a grievance procedure that provides first for negotiation, then mediation, and finally for arbitration, where each of these processes is carried out by a different person.
Med-arb or other hybrid processes are generally used where parties believe a given dispute is likely to require elements of two or more processes, and/or where they believe that an individual or forum is available who has the skills necessary to enact more than one process, with a consequent saving of the time and expense.
Med-arb was first used in U.S. public-sector collective bargaining, particularly for public safety groups (e.g. police and fire departments) where strikes are generally illegal. In many states, the state legislature has called for a hybrid system to resolving these disputes peacefully and efficiently.
Usually such systems call for mediation, after which either party can compel arbitration if the mediation effort fails to reach an agreement. The mediation in this type of case is often actually the second attempt at mediation, following an earlier “pure mediation” effort by the labor-management mediation agency of that state. The hybrid process is invoked if the initial, agency attempt at mediation fails.
Such “duplicate mediation” has two advantages:
First, neutrals who practice as mediator-arbitrators are sometimes able to apply skills that agency neutrals may not possess to the same degree (though often, the agency neutrals are themselves highly skilled);
Second, and more important, is that a mediator-arbitrator’s suggestions carry more weight than those of a “pure mediator,” even when the suggestions are similar or identical. This is because the neutral mediator may have the final decision if the case is unresolved. This gives the mediator more perceived power, even in the mediation, and most certainly in the arbitration phase of the process.
Med-arb in these contexts has generally been considered effective, as illegal strikes are very rare, and most parties believe the process works effectively and promptly.
However, parties sometimes object to the amount of power a mediator-arbitrator has. Typically, arbitrators never meet with the parties separately, but only meet together where both sides can hear (and rebut) all the arguments the other side makes. In addition, arbitrators avoid reaching any conclusions or dropping hints as to the decision until the last argument has been fully expressed.
This mode of working is greatly different from the typical working methods of a mediator, which usually includes meeting privately with each party, and at times, trying to persuade a party to make a particular concession, or to try another approach to their negotiations. If the mediator is also an arbitrator, such pressure can take the form of an implied threat of an adverse decision if one party is seen as being “unreasonable.”
In such cases, the losing party may believe (rightly or wrongly) that the decision was influenced by private conversations between the mediator and the opposing party. Concerns about such issues have led some jurisdictions to opt for mediation followed by separate arbitration instead of med-arb as the public service dispute resolution procedure of choice.
Other hybrid combinations of role also exist. The combination of the roles of facilitator and mediator is so common that many believe that the role of a mediator can hardly be fulfilled without taking on a facilitator’s role as well — though the converse is not true. And it is quite common for a judge to take on the role of a mediator. While this inherently triggers the same potential concerns as mediation-arbitration, it is indisputable that many cases have been resolved, to the satisfaction of all parties, when a judge has engaged in adroit and sensitive intervention along these lines.
Parties who understand the risks inherent in mixing the roles of a neutral are in a much better position to make creative uses of available neutral talents, a hallmark of the flexibility that conflict resolution claims as one of its virtues as a field. There is probably no pair of neutral functions that has not been combined in one individual at some point, many times to the benefit of all parties. And there are subtleties in the distinctions between the common combinations: for example, many see a meaningful distinction between a mediator-arbitrator and an arbitrator-mediator. (In this instance, the distinction is in which role the neutral was primarily selected for. Thus describing a neutral as an “arbitrator-mediator” typically sets up an expectation that the case will probably be pursued to the point of a decision by an arbitrator, but with the parties willing to mediate if the circumstances seem favorable. A “mediator-arbitrator” is hired by the parties with the expectation that the focus will be on mediation, with arbitration reserved as a last resort.)
Other forms of hybrid include the “Special Master” in such major issues as the September 11 Victims’ Compensation Fund or the “Black Farmers’ Case” (involving tens of thousands of farmers who sued the U.S. Department of Agriculture over decades of racial discrimination in its lending policies). Both of these are highly responsible functions that include elements of a mediator, an arbitrator, and a magistrate.
Meanwhile, fact-finding, summary jury trials, mini-trials, and private judging have also been described as hybrid processes, although in these instances the term “hybrid” refers more to a process that exists between two more classical neutral roles than to one in which the neutral is asked to “wear two hats.”
Although the latter three processes are more commonly used in more limited or “tractable” conflicts than they are in intractable conflicts, fact-finding is used extensively in intractable conflicts (witness the U.N. effort to confirm or deny Iraq’s stockpile of weapons of mass destruction), and there are occasions where other hybrid processes might be useful as well.
By Christopher Honeyman