“Med‐Arb”: Behind the Closed Doors of a Hybrid Process

• Published date: 01 October 2013
• Date: 01 October 2013
• DOI: http://doi.org/10.1111/fcre.12057
• Author: Allan Barsky

ADDITIONAL ARTICLES

“MED-ARB”: BEHIND THE CLOSED DOORS OF A HYBRID PROCESS

Allan Barsky

Med-arb is a hybrid conflict resolution process that attempts to blend the collaborative, client-empowering approach of

mediation with the efficiency and finality of decision making from arbitration. This article explores the benefits and risks of

med-arb in the context of separation-divorce cases. The conclusions offer suggestions for maximizing the benefits and

managing the risks.

Keypoints for the Family Court Community

• Many conflict resolution practitioners are blending the roles and skills of different conflict resolution processes in order

to better serve the needs of different clients.

• Although blending roles and skills may provide certain advantages, practitioners and program developers need to be

cognizant of unintended consequences.

• This article highlights the risks of blending mediation and arbitration in relation to client self-determination, informed

consent, fairness, neutrality, power, and other issues.

Keywords: Arbitration;Hybrid Conflict Resolution;Informed Consent;Med-Arb;Mediation;and Neutrality.

INTRODUCTION

In the quest for more effective methods of resolving family disputes arising out of separation

and divorce, legal and mental health professionals have tried a broad range of processes, including

mediation, lawyer-led negotiation, litigation, arbitration, custody evaluation, and family group

conferencing (Folberg, Milne, & Salem, 2004). Some processes seek to empower the parties to make

decisions for themselves, whereas other processes turn decision-making power over to a third party.

The purpose of this article is to explore the potential benefits and risks of blending these approaches

in a process called med-arb (or mediation-arbitration).

This article begins with an overview of med-arb as a hybrid conflict resolution process. The

following sections illustrate the process of med-arb using a divorce scenario.Although the par ticular

case example is fictional, it draws from issues raised in actual cases. The case analysis is intended

to highlight potential benefits and risks of med-arb from the perspectives of the med-arbiter and

each of the parties. The final section provides suggestions for policy makers, practitioners, research-

ers, and professional associations who may be interested in the development of med-arb and related

processes.

WHAT IS MED-ARB?

Med-arb is a two-stage conflict resolution process. In the first stage, the med-arbiter strives to

facilitate agreement between the parties. If the parties do not resolve their concerns, the med-arbiter

switches roles from mediator to arbitrator, conducting an adjudicative hearing to determine the

Correspondence: barsky@barsky.org

FAMILY COURTREVIEW, Vol. 51 No. 4, October 2013 637–650

© 2013 Association of Familyand Conciliation Cour ts