NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

MEDIATION & HYBRID MODELS OF ADR VIS-À-VIS

ARBITRATION

ALTERNATE DISPUTE RESOLUTION PROJECT

WINTER SEMESTER [JANUARY 2015- MAY 2015] - SEMESTER VIII

COURSE INSTRUCTOR: MR. NACHIKETA MITTAL

RISHABH AMBER GUPTA [2011/B.B.A. LL.B/ 044 ]

ANJULI MARWAH [2011/B.B.A. LL.B/009]

 DECLARATION

The text reported in the project is the outcome of own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been incorporated
without due acknowledgement.

RISHABH AMBER GUPTA [2011/B.B.A LL.B/ 044 ]

S/d

ANJULI MARWAH [2011/B.B.A LL.B/009]

S/d

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 RESEARCH METHODOLOGY

RESEARCH QUESTION

1. What are the types of hybrid ADR models in the legal system?
2. What is the major difference between arb-med and med-arb models of hybrid ADR?

SCOPE & LIMITATION

The scope of this paper extends to American, British and Indian law.

HYPOTHESIS

This paper aims at the question of different types of hybrid ADR models and also critically
analyzes the contrast between arb-med and med-arb.

OBJECTIVES

This paper attempts to carve out a clear picture of types of hybrid ADR models and its contrasts.
This paper aims to critically analyze the laws and concepts of hybrid models of ADR. This paper
analyzes the outcomes of various hybrid ADR models.

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 TABLE OF CONTENTS

Declaration ...................................................................................................................................... 1

RESEARCH METHODOLOGY .............................................................................................................. 2

Table of Contents ............................................................................................................................ 3

Introduction ..................................................................................................................................... 4

Varieties of Mixed or Hybrid Processes ......................................................................................... 5

I. Med-Arb ............................................................................................................................... 5

II. Arb-Med ........................................................................................................................... 5

III. Mediation Windowing...................................................................................................... 6

IV. Incentive Arbitration ........................................................................................................ 6

V. Minitrial............................................................................................................................ 6

Contrasting the two hybrid procedures ........................................................................................... 8

A. Procedural reference of parties ..................................................................................... 8

B. What are the implications of these processes for procedural preference among the two
hybrid procedures? .................................................................................................................. 9

C. How hybrid procedures affect disputant expectations and behaviors ........................ 10

D. Behaviors During the Mediation Phase ...................................................................... 12

E. Immediate and long-term outcomes ........................................................................... 14

F. Long-term outcomes ................................................................................................... 16

Conclusion .................................................................................................................................... 19

Bibliography ..................................................................................Error! Bookmark not defined.

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 INTRODUCTION

Mediation, arbitration and non binding evaluation are basic ADR forms. Each of the “basic
three” has characteristic strengths and weaknesses. The idea behind having a mixed or hybrid
and multimodal dispute resolution process is that this model provides the best of attributes of
each and to tailor dispute resolution more precisely to the unique situation presented.1

There are varieties of hybrid models of alternate dispute resolution viz. arb-med, med-arb,
mediation windowing, minitrial and incentive arbitration. This paper attempts to discuss the two
major hybrid models which are arb-med and med-arb. This paper attempts to compare the two
major hybrid processes which are med-arb and arb-med, following a temporal sequence.

The parties desire to maintain control over both the dispute resolution process and its outcomes.
This desire of the parties affects disputants' procedural preferences and their resulting procedural
choice, if any choice is available.2 There are several consequences of using a particular hybrid
procedure for disputant expectations and behaviors, as well as immediate and long-term
outcomes from using the procedure.3

1
Arnold, J., & Carnevale, P. J. 1997, Preferences for dispute resolution procedures as a function of intentionality,
consequences, expected future interaction, and power. Journal of Applied Social Psychology, 27: 371-398
2
Burgess, P. L., & Marburger, D. R. 1993, Do negotiated and arbitrated salaries differ under final-offer arbitration?
Industrial and Labor Relations Review, 46: 548-559
3
Cobbledick, G. 1992. Arb-Med: An alternative approach to expediting settlement. Working paper, Harvard
Program on Negotiation, Harvard University, Boston.

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 VARIETIES OF MIXED OR HYBRID PROCESSES

I.MED-ARB

Med-Arb begins with mediation, but the disputants agree beforehand that, if full settlement does
not result, it will be followed by arbitration.4 Disputants have at least two important reasons for
selecting med-arb: Some want the advantages of mediation and the certainty of adjudication,
whereas others believe the specter of arbitration acts as an incentive to push disputants to be
more accommodating to one another.5 Med-arb includes a number of important sub-varieties. In
med-arb-same, the arbitrator and mediator are the same person, whereas in med-arb-different,
the roles are served by different people.6 In co-med-arb, the mediator and arbitrator are different
people but both attend the mediation so that time can be saved by presenting evidence only once.
Opt-out med-arb is a variation in which med-arb-same is initially specified, but, upon the
election of either disputant, the process changes into med-arb-different.7 Finally, MEDALOA is
a variant in which mediation is followed by final offer arbitration. Med-arb processes, expect
MEDALOA may incorporate non binding evaluation instead of binding arbitration: The non
binding version is more common in court-connected settings, where mandatory binding
arbitration raises constitutional problems by curtailing the right to trail.8

II.ARB-MED

Arb-Med is a less commonly used process. It begins with the case being presented to an
arbitrator, who issues a decision but keeps the decision secret. In a subsequent phase, the
disputants attempt to mediate a settlement. The arbitration award is revealed and used if, and

4
Deutsch, M. 1973. The resolution of conflict: Constructive and destructive processes. New Haven, CT: Yale
University Press.
5
See supra note 1
6
Elkouri, F., Elkouri, E. A., Goggin, E. P., & Volz, M. M. 1997. How arbitration works (5th ed.). Washington, DC:
BNA Books.
7
id
8
See supra note 2

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only if, mediation does not settle the matter.9 It is thought that disputants ‘knowledge that there is
already an arbitration award and that the award may affect the disputant adversely will increase
incentives to come to a reasonable, voluntary agreement in mediation.10

III.MEDIATION WINDOWING

The concept of providing “mediation windows” formalizes a practice that often occurs
informally during arbitration hearings: that of informal ad-hoc facilitation by the arbitrator.
Many arbitrators periodically move into a more facilitative role in an effort to get a consensual
settlement instead of an arbitrated award. In a conceptual sense, it’s as if the disputants make an
ad-hoc agreement to mediate all or part of the conflict midstream during arbitration. Mediation
windowing makes this informal practice explicit. Mediation windows may occur on an ad-hoc
basis, or they may be built into the process in predetermined ways. The mediator is often the
arbitrator, but a purer process, and one less susceptible to impasse, is produced if the mediator is
not the arbitrator.

IV.INCENTIVE ARBITRATION

Incentive arbitration is a hybrid process falling midway between non binding evaluation and
arbitration. The case is submitted to arbitration and an award is issued. The arbitration award is
nonbinding, but there are penalties for not accepting it.11

V.MINITRIAL

Minitrial is basically an incarnation of a non binding evaluation process. There is also a hybrid
version, which does not feature an evaluation by the neutral.12 A minitrial is an abbreviated
version of a litigated dispute, attended by the disputants or their officers or directors who have

9
See supra note 3
10
Marmo, M. 1995, The role of fact finding and interest arbitration in "selling" a settlement. Journal of Collective
Negotiations in the Public Sector, 14: 77-97.
11
Pruitt, D. G., & Carnevale, P. J. 1993, Negotiation in social conflict. Pacific Grove, CA: Brooks-Cole.
12
Farber, H. S., & Katz, H. 1979. Why is there disagreement in bargaining? American Economic Review, 77: 347-
352.

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the authority to settle.13 Typically, a neutral third party is present to moderate the proceeding. A
summary version of the evidence is presented so that the representatives themselves can get a
sense of the strengths and weaknesses of their respective cases.14

13
id
14
See supra note 10

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 CONTRASTING THE TWO HYBRID PROCEDURES

To compare the two major hybrid processes which are med-arb and arb-med, a temporal
sequence has to be followed. The parties desire to maintain control over both the dispute
resolution process and its outcomes. This desire of the parties affects disputants' procedural
preferences and their resulting procedural choice, if any choice is available. There are several
consequences of using a particular hybrid procedure for disputant expectations and behaviors, as
well as immediate and long-term outcomes from using the procedure.

A. PROCEDURAL REFERENCE OF PARTIES

When parties are offered a choice of hybrid procedures, the important question which crops up is
the preference for med-arb or arb-med.15 The question for preference is of utmost importance
precisely for three reasons. Firstly, if they do not prefer a particular procedure, the parties may
avoid using it, which may have implications for dispute resolution system functioning (e.g., staff
and resources may be invested in procedures that few disputants want or use).16 Secondly, the
parties may behave differently when using a procedure they do not favor relative to one they
prefer, affecting both processes (e.g., the amount of information revealed) and outcomes
(whether a voluntary settlement is reached).17 Thirdly, the parties' preferences may be related to
justice beliefs, which, in turn, may affect compliance rates with imposed decisions; disputants
may be less likely to comply with decisions that were reached using seemingly unfair
procedures.18

The disputants are primarily motivated by self-interest in cases of “interest-based disputes”. The
consequences of this self-interest motive for procedural preference are numerous and

15
Sander, F. E. A. 1993. The courthouse and alternative dispute resolution. In L. Hall (Ed.), Negotiation: Strategies
for mutual gain: 43-60. Newbury Park, CA: Sage.
16
Kressel, K., & Pruitt, D. G. 1989. Conclusion: A research perspective on the mediation of social conflict. In K.
Kressel & D. G. Pruitt (Eds.), Mediation research: 394-435. San Francisco: Jossey-Bass.
17
Id
18
Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know)
about Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4, 27 (1983).

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multifaceted.19 First, disputants seek to retain decision control because it gives them veto power
over any third-party proposal that provides unacceptable outcomes thereby protecting their self-
interests.20 Participants generally view a procedure as fairer if they retain decision control,
although they may be willing to relinquish decision control if they are unable to settle the dispute
themselves.21 This suggests a preference for dispute settlement during the mediation rather than
arbitration phase of hybrid procedures. Second, to the extent that process control has
implications for favorable outcomes, disputants seek to maintain process control. Research
demonstrates that disputants usually prefer such procedures as mediation, where they retain
substantial amounts of process control.22 Third, disputants avoid situations where outcomes
cannot be determined in advance or where the probability of obtaining a favorable outcome is
low.23 Arbitration creates such a situation, where parties cannot determine in advance which
evidence will be most compelling to the third party. To reduce such uncertainty, each party may
exaggerate its demands and reduce its level of concession making a phenomenon known as the
chilling effect, hoping that the arbitrator will "split the difference" and give them a modestly
favorable settlement.24 The parties also may employ impression management techniques
designed to convince the third party of the virtue of their respective positions.25

B. WHAT ARE THE IMPLICATIONS OF THESE PROCESSES FOR PROCEDURAL PREFERENCE

AMONG THE TWO HYBRID PROCEDURES?

With med-arb the parties retain decision control during the mediation phase. The parties exercise
process control by engaging in impression management during mediation; they also exercise
process control by presenting additional evidence and formal arguments during any subsequent

19
Robert M. Cover, Dispute Resolution: A Foreword, Yale L.J. 910 (1977)
20
Id
21
Karambayya, R., & Brett, J. 1989. Managers handling dis-putes: Third party roles and perceptions of fairness.
Academy of Management Journal, 32: 687-704
22
Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).
23
Gold, P. W. 1988, Massachusetts "lemon law" arbitration program: 1987 report. Dispute Resolution Journal,
43(3): 48-55
24
Id
25
Levinger, G., & Rubin, J. Z. 1994. Bridges and barriers to a more general theory of conflict. Negotiation Journal,
10: 201-215.

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adversarial type of arbitration hearing.26 It is only at the end of the process that they relinquish
decision control. Thus, with med-arb the parties retain process and decision control longer and
have greater opportunity to reduce the uncertainty associated with receiving an arbitrator's
binding decision.27 In contrast, with arb-med the parties have only one chance to influence the
third-party's binding decision-at the initial arbitration hearing.28 Thus, although the parties
technically retain decision and process control throughout the subsequent mediation phase, they
must also recognize that a binding decision has been rendered already only not yet "served" and
that any further impression management attempts will be ineffectual.29 The early forfeiture of
decision control, thus, is salient throughout the mediation phase of arb-med.30 Further, since the
ruling is displayed prominently in the sealed envelope, the uncertainty of the outcomes contained
in that ruling also is made more salient. Disputants seek favorable outcomes and seek to avoid
uncertain situation, if given a choice between these two hybrid procedures, disputants will prefer
med-arb.31

C. HOW HYBRID PROCEDURES AFFECT DISPUTANT EXPECTATIONS AND BEHAVIORS

DISPUTANT EXPECTATIONS REGARDING OUTCOMES

The choice of med-arb or arb-med will have important effects on disputant cognitions as the
disputants seek favorable outcomes. A critical determinant of whether disputants agree depends
on whether their outcome expectations create a positive "zone of agreement" or "settlement
range".32 The zone of agreement is determined by the disputants' respective resistance points-that

26
Frank E.A. Sander, Varieties of Dispute Processing, 70 F.R.D. Ill (1976).
27
Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution: A Report to
the Judicial Conference of the United States Committee on the Operation of the Jury System (January 1984)
28
Curry, A. F., & Pecorino, P. 1993. The use of final offer arbi-tration as a screening device, Journal of Conflict
Resolution, 37: 655-680
29
Id
30
Coleman, B. J., Jennings, K. M., & McLaughlin, F. S. 1993. Convergence or divergence in final-offer arbitration
in professional baseball Industrial Relations, 32: 238-247.
31
Id
32
See supra note 24

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is, the point beyond which each will resist making concessions. 33 For example, suppose that a
company is negotiating with its union, and management negotiators are unwilling to pay
employees over $9.00 an hour, their resistance point. If employees are unwilling to work for less
than $9.50 an hour (their resistance point), there is no overlapping zone of agreement, and an
agreement will not occur unless one side changes its resistance point.34 The arb-med procedure is
more likely to change the resistance points of the disputants, leading to a greater probability that
an overlapping zone of agreement will exist.35 These characteristics make arb-med a less
preferred procedure-the prominence of the "threat" of an arbitration ruling during the mediation
phase, the reduced opportunity for outcome control through impression management, and so on-
also work to lower disputants' outcome expectations.36 Lower outcome expectations should lead
to an increased likelihood of a positive zone of agreement and, thus, should produce more
cooperative behavior by the disputants.37 Second, there is evidence that disputants in arbitration
settings overestimate their probability of success and the med-arb procedure does little to address
this overconfidence.38 In fact, med-arb may heighten overconfidence, because disputants who do
not settle in mediation can continue to direct impression management attempts toward the third
party during arbitration and thereby continue to bolster their false estimate of prevailing in
arbitration.39 In contrast, arb-med may cause disputants to actively consider the possibility of
losing: because a ruling already has been rendered, the disputant must entertain the possibility
that the ruling has been unfavorable.40 Disputants may estimate the probability of an unfavorable
ruling and then adjust it during mediation, whenever the mediator offers positive or negative

33
Rose, J. B., & Manuel, C. 1996, Attitudes toward collective bargaining and compulsory arbitration, Journal of
Collective Negotiations in the Public Sector, 25: 287-310
34
Id
35
See supra note 27
36
See supra note 3
37
Rose, J. B., & Manuel, C. 1996, Attitudes toward collective bargaining and compulsory arbitration. Journal of
Collective Negotiations in the Public Sector, 25: 287-310
38
Id
39
Cobbledick, G. 1992. Arb-Med: An alternative approach to expediting settlement. Working paper, Harvard
Program on Negotiation, Harvard University, Boston.
40
Id

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feedback regarding their positions. Disputants have lower outcome expectations in arb-med than
in med-arb.41

D. BEHAVIORS DURING THE MEDIATION PHASE

COOPERATION

Hybrid processes will affect cooperation differentially during mediation phase. If the arb-med
method reduces the outcome probability, then in most cases disputants in arb-med will act in
more harmony with each other as compared to in med-arb. It has been observed that many cases
are resolved by the parties after the arbitration hearing is already carried out but before a decision
is disclosed to the parties. Extending this theory to arb-med model, it would mean that, having
completed the arbitration proceedings and the panel has reached to its decision but has not yet
revealed, the parties may feel way too uncertain. When this uncertainty is coupled with lower
favorable outcome probability, the psychotic pressure of the uncertainty should drive the parties
to trim down such uncertainty by giving consent during the mediation phase. One-trial prisoner's
predicament game has been discussed in a lot of studies wherein subjects were either sensitive or
indifferent of their opponent's wish to contest or settle. In a study, where parties knew that the
party had made a cutthroat choice, only 3 percent responded with a settling option. When they
knew that the other party had made a harmonious choice, 16 percent responded with a obliging
choice. However, instances where parties did not know of the other party’s choice, 37 percent
chose to cooperate.42 Another explanation that goes in explaining the prior stand is that of
disjunction effect theory, which is defined as follows: parties choose ‘a’ over ‘b’ when ‘X’
event occurs; they also prefer ‘a’ over ‘b’ when X does not happen, however they prefer ‘b’ over
‘a’ when ‘X’ is doubtful. The arb-med procedure sets up similar situation for the disjunction
outcome. For instance, if we replace "a favorable arbitration outcome" for ‘X’, "compete" for ‘a’,
and "cooperate" for ‘b’ in the above situation dynamics of the disjunction outcome theory, we
would have a larger numbers of parties connect in cooperative behavior when arbitrators'
decision is uncertain.

41
See supra note 34
42
Shafir, E., & Tversky, A. 1992, Thinking through uncertainty: No consequential reasoning and choice. Cognitive
Psychology, 24: 449-474.

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 Conclusion 1: In the mediation phase, parties will act in a more harmonious manner in
arb-med model than in med-arb model.

DISCLOSING INFORMATION

A major part of harmonious behavior is disclosure of information. The disclosure of more

information is results in a higher probability of arriving at an integrative, high-quality
cooperation. Information dissemination occurs mostly during private discussions with a
mediator. Yet, parties may be unwilling to divulge information if they dread that the other side
may use that information when making an ensuing arbitration ruling43. This probable loss of
outcome control through revealing information in mediation is an intrinsic problem in the med-
arb model. For example, imagine that a worker’s association's bargaining situation is such that
workers need thirteen paid holidays. Suppose if association leaders divulge to the mediator in a
private discussion that they will accept ten holidays, then it may be feared that the third-party
may use this information and press for 10 holidays during arbitration proceeding if it becomes
compulsory. However, if an arbitration decision has already been made and nothing was revealed
during mediation that can prejudice the decision, then there is no benefit or inducement for
holding information during mediation. Thus, arb-med should amplify the probability that one
party may reveal private information during private discussions with a mediator, and even to the
other party.

Conclusion 2: In the mediation phase, parties would disclose more private information in
the arb-med model than in med-arb model.

ACCEPTANCE TO MEDIATOR RECOMMENDATIONS

One of the strong points in the arb-med model is that the repercussion of losing in arbitration is
relevant to the parties. This consciousness and thought of losing should drive parties’ impetus to
reconcile and make them more interested to mediation proposal. However, studies also reflect
that this certain benefit to settle, is the only factor that increase the probability of settlement and
parties need definite direction from their third party as well. If parties are incentivized to settle
their dispute through mediation, then, when the third party provides express help by way of

43
Fuller, L. 1962, Collective bargaining and the arbitrator Proceedings, Fifteenth Annual Meeting, National
Academy of Arbitrators: 8-54. Washington, DC: Bureau of National Affairs.

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recommended settlements, the parties are to be expected to make increased concessions to reach
toward that recommended settlement level. The result of this process is the increased chances of
concord between the parties. Since mediators regularly and frequently suggest settlements, this is
not a unique and rare behavior.

Conclusion 3: Parties will respond to mediator’s recommendation for settlement with

more discounts in arb-med model than in med-arb model.

Conclusion 4: Parties will abide by mediator’s proposals more regularly in arb-med

model than in med-arb model.

E. SHORT AND LONG-TERM RESULTS

It is pertinent to discuss both types of conclusion since it is quite possible that one hybrid model
may instigate instantaneous outcomes, but, if the contesting parties want that dispute should
settle, then that may have long-term results, such as being committed to stand for by the
agreement44. Arb-med usually have a higher number of relative advantages with respect to short
term results and med-arb is more beneficial for the long-term outcomes.

IMMEDIATE OUTCOMES & SETTLEMENT FREQUENCY

One of the objectives of dispute resolution mechanisms is to give more boost to voluntary and
relatively quick settlements. This implies that a settlement during the mediation phase, where the
parties have control in decision outcome, is more preferable to an award in the arbitration, since
the parties have willfully agreed to the settlement and because obligation under arbitration tends
to increase. Arb-med will bring into being a more settlements during the mediation phase than
those in med-arb. It has been noted by many scholars that in arbitration, the parties who had
already arrived at negotiations gave sealed final-offer bids to the arbitrators deciding their
subject matter. However, before getting the arbitrator's award, the parties quite often manifested

44
Kressel, K., & Pruitt, D. G. 1989, Conclusion: A research perspective on the mediation of social conflict. In K.
Kressel & D. G. Pruitt (Eds.), Mediation research: 394-435. San Francisco: Jossey-Bass.

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a plethora of negotiation activity, as their aim is to shun an arbitrated settlement45. The regularity
of settlements that happens post arbitration proceedings but before to the decision suggests that
the curtailment of the arbitration and the decision making phase as is found invariably in the arb-
med procedure would lubricate the progress of voluntary settlements. Also, if the parties have
lower favorable outcome probability with arb-med, they will be further encouraged to avoid
arbitration.

Conclusion 5: There will be greater number of mediated resolutions using arb-med

model than by using med-arb model.

QUALITY OF DISPUTE RESOLUTION

The relevance or significance of settlements arrived at in the mediation phase is increased in arb-
med model than in med-arb model. This statement flows from the conclusion that disputants
divulge more classified information in the mediation phase of arb-med. The certainty and
revelation of information is attached with a higher probability of reaching at an integrative and
high-quality settlement. Integrative settlements gives a higher overall benefit than do non
integrative settlements, whether quality is elucidated in terms of joint pay-offs or Pareto
efficiency or creativity46. If the parties contribute more information and are more interested in
reaching the solution, then the chances of arriving at a high-quality mediated settlement is
increased manifold with the arb-med procedure.

Conclusion 6: Settlements arrived at in the mediation more likely to be of superior

quality in the arb-med model than in med-arb model.

TIME AND PRICE SIGNIFICANCE

Whereas there are few conclusions that favors the novel arb-med procedure, most of the other
conclusions reached at in this study till now strengthen the better-known med-arb procedure. For
instance, med-arb model is more likely to be more cost effective and to generate quicker results.
This expectation originates from the nature of the two models. Arb-med has an arbitration

45
Burgess, P. L., & Marburger, D. R. 1993, Do negotiated and arbitrated salaries differ under final-offer arbitration?
Industrial and Labor Relations Review, 46: 548-559
46
Tripp, T., & Sondak, H. 1992. An evaluation of dependent variables in experimental negotiation studies: Impasse
rates and Pareto efficiency. Organizational Behavior and Human Decision Processes, 51: 273-295.

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proceedings phase and a mediation phase both in every case. It is when the dispute is solved in
mediation does the decision phase of arbitration, becomes irrelevant. However, in med-arb if the
dispute is solved in the mediation phase itself then arbitration hearing is not even held. Since a
lot of cases are mediated successfully, med-arb is likely to generate faster results than arb-med.
Moreover, since the process is short and external third parties are paid a per-sitting amount, med-
arb is more likely to be cost effective.

F. LONG-TERM OUTCOMES

JUSTICE BELIEFS

There are a lot of rationale to put forward the claim that med-arb will show the road towards
greater long-term perceptions of procedural and distributive fairness. Studies have suggested that
having a locus standi make presentation of his or her case, drives one's beliefs about procedural
equality for both instrumental and value communicative reasons47. Such beliefs thrives the
probability that the process will be used for solving the future differences as well. Clearly, under
both models, parties have opportunity to exert process control. However, for pivotal reasons,
parties' confidence of process control will be higher in the med-arb model. As we have already
dealt with earlier regarding impression management, the med-arb model allows parties two
occasions to present their case before the arbitrator makes a decision, whereas arb-med only
gives one such opportunity. Hence, although both the models give parties process control,
parties’ confidence of such control will be much higher in med-arb. The favorable treatment
meted out by disputants before the third party also may sway their procedural justice choices.
The parties may consider that a mediator's request for a relaxation during the mediation phase of
arb-med model as more suppressing and intimidating than the similar demand in the mediation
phase of med-arb model. In the arb-med model the parties may opine it as a warning of what will
come if no settlement is arrived. This may lead disputants to feel that they were treated with less
reverence and empathy in the arb-med procedure. Notions of empathetic treatment and reverence
play a pivotal role in the interactional justice and in the various procedural justice model.
Distributive righteousness in outcomes are also expected to be higher in med-arb. With respect to
outcomes arrived in mediation, parties in arb-med may feel very burdensome to consent for the

47
Lind, E. A., Kulik, C. T., Ambrose, M., & de Vera Park, M. 1993. Individual and corporate dispute resolution:
Using pro-cedural fairness as a decision heuristic. Administrative Science Quarterly, 38: 224-251.

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reason that crisp recommendations made by the third party, magnified by the threat of the
arbitrated conclusion that already exists but is not yet disclosed. Parties may look any mediated
agreement arrived at in arb-med as "pressurized," upon losing the control over the result; this
infringes justice criterion of partiality repression.48 Since the outcome is ascertained prior to
mediation, it is not responsive to concessions, procedural developments, or relationship amends
between the parties that may have occurred during the course of the mediation phase. This might
result in parties to think that the arb-med model relies on less precise information (since the
arbitrator makes his or her decision without the assistance of new information) or maybe it is a
procedure that violates existing benchmarks of ethics. Both precision and ethics are major
fairness-enhancing tools. Thus, to the extent that arb-med violates the normative prospect of
what an ideal procedure should be, parties would consider med-arb model as more fair in terms
of its procedure and distributive justice.

ADHERENCE TO THE SETTLEMENT OUTCOME

Finally, parties' long-term compliance with the mediator’s imposed outcomes is a relentless
predicament. Research has shown that approximate conformity rates are about 80 percent for
mediation, versus only 48 percent for adjudication in small claims court.49 In the labor-
management domain, non-adherence may take the form of attempting to arrive contract
alterations via the accusation machinery. For instance, a union of labors might make numerous
irrelevant grievances with respect to a clause in contract with an object to force the other side to
renegotiate that clause. Instead, a union might take up the role of grievance arbitration. It is
expected that arb-med will give fewer arbitrated outcomes than the med-arb model, however on
the other hand the party compliance may be more challenging. Parties may look at the decision
announced in arb-med proceedings as not incorporating the "new understanding" as arrived in
the entire mediation phase. As has been earlier dealt with, one key aspect of arb-med is that the
mediator's ruling cannot be rationalized or altered by any new information or insight revealed in
the mediation phase. This suggest that there is a probability that arbitrated decisions in the arb-

48
Leventhal, G. S., Karuza, J., & Fry, W. R. 1980. Beyond fairness: A theory of allocation preferences. In G.
Mikula (Ed.), Justice and social interaction: 167-218. New York: Springer-Verlag.
49
McEwen, C. A., & Maiman, R. J. 1984. Mediation in small claims court: Achieving compliance through consent.
Law and Society Review, 18: 11-49.

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med procedure could miss out on noteworthy points or and could lead to flaws that an arbitrated
decision in med-arb could tackle expediently. Such incompetent results might lead parties to
have a lesser level of commitment to settlements reached in arb-med. In addition, it has been
discovered that justice both in terms of procedure and distributive fairness are of paramount
determinants of decisions to meet the terms with third-party decisions compared mediation with
med-arb in community dispute resolution centers50. Hence, it can be concluded that when parties
consider a dispute resolution procedure to be fair and reasonable, they are more likely to meet
the obligations set out in the decision or settlement resulting from that method. If parties consider
med-arb as a fairer procedure, they would be more likely comply with an arbitration ruling from
med-arb than from arb-med.

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Notz, W. W., & Starke, F. A. 1987. Arbitration and distributive justice: Equity or equality?, Journal of Applied
Psychology, 72: 359-365.

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 CONCLUSION

The strength of arb-med model lies primarily in its inherent motivational capacity. It appears to
be intimidating and lessening each party's decision control, the procedure would subordinate
parties’ interest and produce uncertainty among them. These complex analysis should encourage
the parties to maintain decision control and prefer med-arb model over arb-med model.

In the nut-shell, we can say that the biggest advantage of arb-med procedure is that it motivates
parties to reconcile their differences among themselves, whereas the greatest advantage of the
med-arb procedure is amplified confidence and satisfaction of equitable treatment and greater
adherence with the arbitral decisions which is a more long-term effect. This explanation of
relative strengths described as above strongly advocates that policy designers and/or parties
should pursue a dynamic and rational approach to select a dispute resolution procedure, on the
basis of specific criteria, they aim to maximize.

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