Title: MED – ARB PROCESS: BEST OF TWO WORLDS OR JUST ANOTHER ADR

OPTION?

Name: Ms. Jharna Sahijwani

Designation: Assistant Professor of Law

Affiliation: Kirit P. School of Law, Narsee Monjee Institute of Management Studies

University, Mumbai, Maharashtra

Contact Number: +91 - 9427937406

Email – id: jharna1808@gmail.com

Theme: Emerging Issues in Arbitration, Conciliation, Mediation and Negotiation

ABSTRACT

One of the ADR mechanisms which has gained attention in the changing dynamism of ADR
processes is the process of “Med-Arb” which is the combination is a hybrid resolution
process bringing together the elements of both Mediation and Arbitration. In this initial
phase, the presiding neutral third-party acts as a mediator and encourages the parties towards
a settlement taking into account the information received from both at a mediation hearing.
The mediator can assume the role of arbitrator (if qualified) and render a binding decision
quickly, or an arbitrator can take over the case after consulting with the mediator.
Alternatively, arbitrator could take over all or part of the dispute from a mediator. Med-Arb
strikes a balance between party autonomy and finality in dispute resolution and could be
conducted using institutional approach, like, by following the procedure formulated by
institutions like SMC-SIAC Med-Arb procedure, CDRS Med-Arb rules and procedure etc.
Interest is increasing in Med-Arb because of a growing similarity between arbitration and
litigation. As attorneys legalize and formalize mediation into a more evaluative and
adversarial process, Med-Arb practitioners offer a process that guarantees a final resolution
but incorporates informal opportunities for settlement. Thus, as both mediation and
arbitration become increasingly formalized, Med-Arb is perceived as one way to correct the
adversarial disadvantages of each by providing for both "finality" and "flexibility."

The researcher in this article shall highlight the evolution of this process keeping in view all
the positive dynamics of Mediation and Arbitration as it is very pertinent to understand the
benefits due to which it has attained popularity. The researcher shall further look into various
models by which the Med-Arb process can be conducted and shall attempt to address the
legal and ethical concerns surrounding the whole process. The researcher shall address the
most pertinent question as to whether the said process is truly beneficial in resolving disputes
effectively between two parties and if yes, then the researcher shall attempt to lay down the
best suitable model for Med-Arb in India.