Chapter 8 go into a non-binding arbitration first.

If it does not work

MED-ARB and ARB-MED:
Hybrid Multimodal ADR Models
The beauty of ADR is its openness to the creativity of
disputants. Mixed, or hybrid, ADR processes are specific
processes that combine elements of three ADR forms -
mediation, arbitration and non-binding evaluation.
MED-ARB
 Mediation-Arbitration or med-arb is a two-step
dispute resolution process involving both mediation then
followed by arbitration. This dispute resolution procedure
where the parties first try to settle their disputes through
mediation and matters not settled through mediation are
submitted to binding arbitration by the mediation who now
acts as arbitrator.
 Med-arb involves a dual-stage procedure. It is a
composite of mediation and arbitration that gives the parties
two chances of terminating their differences. The parties
have an opportunity to resolve the minor issues through
mediation first. If all issues are not settled during mediation
stage, the parties can proceed to arbitration to tackle the
remaining knotty issues, assuming the process goes that far.
The second phase takes place only after the first phase goes
down in flames when the mediator fails to convince the
parties to agree on a settlement.
well, the may now agree to process to the mediation.
 The difference between med-arb and arb-med is a
matter of sequence as to which proceeding comes
ahead and which one follows.
BENEFITS
It is believed that, since the disputants know that there
is an arbitration award hanging over their heads, there will be
counter incentives to make compromises that offset the
usual motive to make extreme offers during negotiation
DOWNSIDE
 Creates the perception that the dispute is competitive
 More likely the conflict is to escalate destructively
 Also presents subtle motivational pressures
 Could be perceived as a waste of time and money. If the
mediation turns out to be a sufficient process, then arb-
med will have imposed an unnecessary layer of time and
cost.

ATTRACTION
In med-arb, the neutral is empowered to advice or
predict for the parties the likely outcomes if they arbitrate
but not to serve as arbitrator. Here, since the mediator has
no arbitral power, candor in mediation is encouraged. A
crucial question in gauging the value of this process
compared to standard med-arb is thus its success in bringing
about settlements without recourse to arbitration.

DRAWBACKS
According to the collective consensus of ADR scholars
and professionals that combining mediation and arbitration
does not create a process with a desirable characteristics,
Med-arb suffer from number of fairness, neutrality and
conflict diagnosis problems. During mediation, the med-
arbitrator may become privy to confidential information,
particularly if he uses the caucus heavily. He cannot help but
consider the information in making an arbitration award,
which can compromise impartiality in the arbitration process.
Moreover, if the med-arbitrator relies heavily on caucusing
during the mediation phase, issues of fairness and due
process arise. Critics of the med-arb contend that the
mediation phase is conceptually flawed by the fact that the
same person will be the mediator and the arbitrator.

ARB-MED
 Arbitration Mediation or arb-med is a less
commonly used process. It begins with the case being
presented to an arbitrator, who issues a decision but keeps
the decision secret.The disputants hold and arbitration
hearing before the arbitrator. At the conclusion of the
arbitration, the arbitrator does not announce an award.
Instead, the arbitrator then mediated the dispute. The parties
 Chapter 9
EARLY NEUTRAL-EVALUATION AND MINI TRIAL:
Avant-Garde Approaches in Resolving Disputes
EARLY NEUTRAL-EVALUATION (ENE)
 An ADR process in which parties and their lawyers are
brought together early in the pre-trial phase to present
summaries of their cases and to receive a non-binding
assessment by an experienced neutral person, with
expertise in the subject-matter.
 ENE may involve an attempt by the neutral to settle the
case.
 If the case does not settle, the neutral aids the
disputants in preparing a case management plan
To some extent, full-fledged ENE is a substitute for the
settlement phase of a pre-trial conference in which the judge
provides the function of a reality check. The developers of
ENE were motivated by the desire of the judges (of the
Northern District of California) to make litigation less
expensive an burdensome for some clients. The heart of ENE
was to be an early, frank and thoughtful assessment of the
parties’ relative positions and the overall value of the case.
2 Categories Eligible for ENE
1. The subject matter category.
a) Contract and personal injury matters
b) Employment civil rights case
c) Wrongful termination matters
d) And certain types of commercial litigation
2. Experience-based that suggests that certain cases would
be less appropriate for ENE
a) At least one party is proceeding in pro per
b) The principal relief sough is equitable, not
monetary
c) The case raises an important issue of public policy
on which a judicial pronouncement is sought
d) Legal standards on which the disposition will turn
are not clear and the parties will need judicial
pronouncement of the law
MINI TRIAL
 Mini-trial is a structured dispute resolution method
in which the merits of a case are argued before a panel
comprising of senior decision makers with or without the
presence of a neutral third person after which the parties
seek a negotiated process.
 It is a voluntary dispute resolution process
 There is no prescribed procedure for conducting a
mini-trial, the parties can devise their own rules of procedure
 Mini-trial can take any forms. Developed by
practising attorneys who wished to cut down the delay and
expense in resolving resolving corporate disputes.
A mini-trial is a form of mediation, another
abbreviated way of resolving complex commercial disputes
worth millions of dollars without the expense and
aggravation of a full-blown trial. This method is a more
sophisticated form of mediation in which parties become
signatories to a mini-trial contact that specifies the conduct
of the hearings, the selection of a neutral third party, and
some discovery matters.
The mini-trial has two major advantages:
1. It requires much of the discovery process to be curtailed
2. It involves high-level businesspersons in the dispute
resolution process early.
 In mini-trial, if the parties are unable to negotiate a
resolution of their dispute, they may call on the neutral
adviser to give a prediction of the likely outcome if the matte
is litigated.
 As a hybrid, a mini-trial is an abbreviated version of
a litigated dispute, attended by the disputants or their
officers or directors who have the authority to settle.
 It may last from half a day to three or four days.
Thus, presentations are usually limited to from on to six
hours for each side, depending on the complexity of the
issues.
Like ENE, the mini-trial serves a predictive function
and uses the services of an expert neutral. However, mini-
trial usually involves more formal presentations of proof to
the neutral expert who renders a non-binding “result” and
may explore the possibility of settlement. It is critical that the
mini-trial be attended by the opposing clients with authority
to settle the case.
The most distinctive characteristic of the mini-trial
is that the lawyers present their cases not to the judge, an
arbitrator, a jury,or any other third party with the power to
make a binding decision, but rather to the principals
themselves.
The principals receives a crash course on the
subject of the dispute conducted in an informal setting but
through the adversary process.
 The goal of mini-trial is settlement; the means is a trial
that informs and provides a predictive function. The
mini-trial is a flexible, non-binding ADR process used
primarily out of court. It is generally reserved for large
cases. The hearing is informal, with no witnesses and
with relaxed rules of evidence and procedure. Mini-trial
method is best suited to large disputes and complex
litigation.
 The term “mini-trial” is not apropos. It is misleading
because the mini-trial procedure is not a trial at all, but
a rational and voluntary manner of structuring a
settlement of disputes between two big companies.