ABSTRACT
Chapter 7 analyses the second of the three ways to address concerns associated with the same neutral (arb)-med-arb: by modifying the same neutral (arb)-med-arb procedure. Procedural modifications discussed here are MEDALOA (mediation and last offer arbitration), arb-med and modifications relevant to a three-member tribunal. Incorporation of last offer arbitration in MEDALOA appears to prevent parties from inflating their offers and to reduce the risk of arbitrator’s bias since the arbitrator does not decide but chooses a resolution proposed by parties. A limitation of MEDALOA lies in its relative inability to solve a dispute in anything other than strictly monetary terms. In arb-med, the risk of arbitrator’s bias and breach of due process further to confidential disclosures in mediation is excluded because mediation occurs after an arbitral award has been rendered. For the same reason, parties cannot use mediation tactically to influence the arbitrator’s decision. However, since arbitration will run its full course regardless of whether parties settle in mediation, arb-med is not a time- and cost-efficient process. Arbitral tribunals consisting of three arbitrators offer significant flexibility for configuration in the mediation phase. Involvement in mediation of only some members of the tribunal may help reduce concerns, particularly those related to the risk of arbitrator’s bias.
