Med-Arb is a long-standing and robust practice that combines the flexibility and self-determination inherent in mediation with the certainty and finality of arbitration. Med-Arb has become widely used in the last decade. A survey performed by David Lipsky and Ronald Seeber found that an astonishing forty percent of responding Fortune 1,000 corporations had engaged in med-arb in the preceding three years. Notably, Med-arb is not a new concept. Professor Derek Roebuck indicates that in ancient Greek and Egyptian traditions, med-arb was the norm rather than the exception. In both ancient and modern Muslim legal practice, the judge must make serious efforts to bring the parties to agreement before trial. Med-arb is very popular in other cultures. In Japan, for example, most cases submitted to arbitration actually undergo “med-arb.” Australia, Canada, Hong Kong, and Japan have actually enacted arbitration laws that contain med-arb provisions. Today, in Canada and Australia, med-arb is used routinely to resolve public sector labor disputes and arbitration statutes expressly permit resolution by this method. Proponents of med-arb convincingly argue that it eliminates the major weakness of mediation – lack of finality – while allowing the parties to use an arbitrator with whom they have built up trust during the mediation process. This allows maximum flexibility and saves the cost and time associated with selecting a separate arbitrator should mediation fail.
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