Thomas Stipanowich, Academic Director for the Straus Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law at Pepperdine University School of Law, and Veronique Fraser, Group for the Prevention and Resolution of Disputes (G-PRD) and Assistant Professor of Law at the University of Sherbrooke, have published “The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases,” Fordham International Law Journal, Forthcoming; Pepperdine University Legal Studies Research Paper No. 2017/4. In their journal article, the authors examine various mixed mode dispute resolution scenarios used in commercial disputes.
Here is the abstract:
As mediation and other settlement-oriented intervention strategies have come into broader use in commercial dispute resolution, different views have emerged regarding the nature and purpose of some of these processes as a result of both individual choice and cultural or systemic factors. The potential for divergent perspectives or practices is enhanced when dispute resolution processes are mixed or matched. “Mixed mode” approaches involving the interplay between arbitration, evaluation and mediation are an increasingly important feature of the landscape of national and international commercial dispute resolution. This white paper was developed in connection with the convening of an international task force to explore the spectrum of national and international practices and perspectives associated with several mixed mode dispute resolution scenarios, including (1) mediators using nonbinding evaluation or mediator proposals as a means of encouraging settlement; (2) mediators “setting the stage” for arbitration by facilitating process discussions; (3) “switching hats”: mediators shifting to the role of arbitrator in the course of helping resolve a dispute (med-arb), or arbitrators shifting to the role of mediator; (4) arbitrators using various other approaches to set the stage for settlement; (5) arbitrators rendering “consent awards” based on a negotiated settlement; and (6) other kinds of interaction between evaluation, mediation, and arbitration.