Integrity Registry Press, LLC.

Excerpt from “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls,” available on Amazon on April 2, 2018.

I had never heard of Med-Arb until I started writing my book on prenups, “The Generous Prenup.” I knew about arbitration, but not this intriguing combination of mediation and arbitration. When I started writing Chapter 6 in my book, (about the different ways people can get divorce), Med-Arb showed up in my research. Here’s how it works. What do you think about it?

The term Med-Arb stands for Mediation/Arbitration. This is a new area of dispute resolution in which the mediator is also the arbitrator. The parties agree to embark on mediation. The parties have also agreed that if the mediation process does not result in agreement (or to the extent it does not), then the mediator switches roles and becomes the arbitrator, and issues an award (i.e., a decision).

However, there is a risk in the Med-Arb process. The person serving as a mediator may have gained information in confidence, and also may have offered information to steer the parties toward settlement. There is a risk that this may taint the arbitrator’s decision because the arbitrator may no longer be seen as (or be) impartial.

There is also concern that has been expressed within the Arbitration bar. Arbitrators, like judges, are supposed to maintain public confidence in the integrity and fairness of the arbitration. Switching roles from mediator to arbitrator may muddy the waters and contaminate the arbitration process.

To prevent these potential problems, the parties could be allowed to opt out of having the same person serve as the arbitrator if they wish. Or they could also have a written agreement at the outset that the mediator should not serve as arbitrator if they do not come to terms. Before embarking on Med-Arb, it is important to check the applicable laws (case law and statutes) in your jurisdiction.