Last night I attended a seminar on med-arb, a relatively esoteric topic unless you are in the ADR field. Although unusual in HK and Western ADR jurisdictions, the combined use of mediation and arbitration with the same neutrals is not unusual across the border in China. In med-arb, the neutral will commence the arbitration and then break to conduct mediation with the parties seeking a settlement. If this does not result in full settlement, then the remaining issues will be resolved through the determinations of the arbitral panel.
The resistance in HK and Western jurisdictions relates to concerns about how one person can conduct dual processes. If the neutral learns information during the mediation which would not be produced or discoverable in the arbitration how can the neutral ignore this information and make a determination based only on the evidence / arguments made during the arbitral proceedings?
One of the reasons to move to this hybrid is an apparent interest from parties and the Government in supporting mediation where the mediator will advise parties of their "view" on what the outcome would be if the dispute was arbitrated / adjudicated. There may be some issues of semantics as even the most facilitative mediator will create doubt and reality test. However, modern mediators do not typically make a determination. There are reasons for this - the most important of which is the philosophical basis for modern mediation i.e. party self-determination.
From my perspective there are other issues which need to be considered:
- the promise of modern mediation is that parties are empowered to resolve their own issues (party self determination) - does this process take power away from the parties? if the neutral reality tests a party and the party knows that this neutral will also make the decision at the end of the day - how can this not impact self-determination?
- how can a neutral make use of all the tools (e.g. caucuses) if there is one eye on making a determination?
- how will the confidentiality of the caucus be protected? sometimes parties use this as a time to reveal information which may assist with settlement but would not be discoverable
- how will legal advisors be able to assist clients to risk assess each dispute resolution process to make an informed choice for their dispute?
According to the speaker, there is a demand for multiple hybrid dispute resolution processes. I still see parties and lawyers who are unclear about the mediation process. I am not sure how multiple hybrid variants will be greeted by the market and by parties. Without doubt the ADR field is always evolving, the question is how do neutrals ensure that changes are both responsive to the needs of parties and consistent with maintaining the integrity of ADR processes.