Mediation-Arbitration Hybrids

As discussed in the Guide, there are a number of different mediation-arbitration hybrids. Regardless of the form used, the concept is to stage the mediation and arbitration in close proximity to incentivize a voluntary resolution. In certain forms of the hybrid, the mediator and arbitrator can be the same neutral that can be an attractive cost savings to the parties, i.e., if the mediation is unsuccessful, the parties need not educate a new neutral (the arbitrator) on the issues in dispute.

The parties voluntarily agree to the process and cannot be ordered by the court.

Indications for consideration:

  • It is attractive to parties who want to stage an arbitration immediately after a mediation to incentivize the parties to reach a voluntary resolution during the course of the mediation
  • It is attractive to parties who can agree to a neutral who can competently perform the role of mediator and, if necessary, an arbitrator

  • The parties desire to reduce risk by entering into a high-low or similar agreement for the arbitration should the matter not resolve at the mediation
  • The parties would prefer a decision from a subject matter expert rather than a jury
  • The parties are interested in establishing rules that will govern the arbitration that may be more efficient than available under the Michigan Court Rules

Timing

Typically used after significant discovery and motion practice has been completed, however the parties can voluntarily agree to pursue this process at any stage of the litigation.