KEEPING A SECRET FROM YOURSELF? CONFIDENTIALITY WHEN THE SAME NEUTRAL SERVES BOTH AS MEDIATOR AND AS ARBITRATOR IN THE SAME CASE

Authors

Kristen M. Blankley, University of Nebraska College of LawFollow

Date of this Version

2011

Citation

BAYLOR LAW REVIEW, Vol. 63:2, pp. 317-367.

Comments

(c) 2011 Kristen Blankley.

Abstract

As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediationarbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and if the parties reach an impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no exceptions for med-arb, parties who seek to utilize this process must execute careful waivers to avoid the possibility that any resulting arbitration award will later be vacated by the courts.