ABSTRACT
Chapter 3 examines advantages and concerns associated with the same neutral (arb)-med-arb. It identifies six advantages recurrently attributed to this process. These are cost and time efficiency, finality and legal enforceability, quality of the outcome, flexibility, incentive to settle, and more honest behaviour of parties in mediation (as compared to stand-alone mediation). As for concerns, caucuses appear as the single most problematic issue in the same neutral (arb)-med-arb and the cause of the majority of concerns associated with this process. The main concerns associated with the same neutral (arb)-med-arb can be divided into two groups: behavioural concerns that surface in the mediation stage and procedural concerns that arise in the arbitration stage. Behavioural concerns include the possible reluctance of parties to be open in their discussions with mediators, the inhibited conduct of mediators, parties’ use of mediation as a tactical tool, and the abuse of power by mediators resulting in the coercion of parties into a settlement. Procedural concerns are directed towards the danger that arbitrators will appear or actually be biased and the risk that the process may offend the principles of due process. Chapter 3 also analyses a challenge posed by the same neutral (arb)-med-arb to dual role neutrals.
