ARB-MED-ARB (And MSAs): A whole which is less than, not greater than, the sum of its parts?

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Abstract

Mediation affords parties to international commercial disputes
an opportunity to settle their differences in an informal and nonadversarial
setting and on mutually acceptable terms. Nonetheless
parties may be reluctant to use mediation because agreements
arrived at in mediation (mediated settlement agreements or MSAs)
are not widely or unformly enforceable. In an attempt to overcome
this problem, parties who wish to mediate may agree to participate in
a process known as arb-med-arb. This process, which is formed by
amalgamating elements of mediation and arbitration, may enable
parties to take advantage of various systems of arbitration rules
which allow a settlement reached during arbitration to be recorded
and enforced as a consent award. According to some commentators,
"hybridization" enables the parties to have "the best of both worlds".
In fact, the parties may sacrifice key features of arbitration and
mediation such that the procedural integrity of both processes is
compromised. This article explores the strengths and weaknesses of a
number of hybrid dispute resolution processes with a focus on arbmed-
arb and its foundational process, meb-arb. It considers whether
parties are getting less than, not more than, the sum of its parts,
when they resort to arb-med-arb for the purpose of enforcing MSAs.
Original languageEnglish
Pages (from-to)249-274
Number of pages26
JournalContemporary Asia Arbitration Journal
Volume6
Issue number2
Publication statusPublished - 2013

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