Point/Counterpoint: Advantages and Pitfalls of the Family Mediation/Arbitration Hybrid Process

Many family law participants engage in alternative dispute resolution, commonly mediation.

In certain jurisdictions, parties are engaging in the mediation/arbitration hybrid process (“med/arb”). They sign a contract with a private mediator/arbitrator agreeing to first mediate the issues, and, if mediation fails, the mediator switches hats to now be the arbitrator. As arbitrator, he/she is empowered to make binding decisions on all remaining contested issues.

There are several advantages to this process, mostly efficiency, lower cost to participants, and quick finality.

Some professionals believe that this process is contrary to due process of the law. Among other things, the mediator/arbitrator often engages in private caucuses during the mediation process and can learn confidential information that he/she might never know about if the case were just arbitration.

Our panel will discuss the pros and cons of the med/arb process and our experiences using it.