Mediation/arbitration under the new rules

Mediation/arbitration, or med/arb, is a process by which the parties try to mediate their dispute with a neutral person, the mediator.

If they cannot agree on a resolution, then the mediator becomes an arbitrator. The parties present their evidence and make their arguments to the arbitrator and he or she then makes a decision that is legally binding on the parties.

Knowing that the process will ultimately result in a binding decision often inspires parties to take their negotiations in a mediation more seriously, and strive harder to reach a consensual resolution.

However, some people are uncomfortable having a mediator, who may have confidential information about the parties' positions, turn into a decision-maker who rules on the rights of the parties. An arbitrator is required to make the decision based only on evidence presented in the arbitration proceeding, and not on any confidential or other information received while acting as a mediator.

The parties to a med/arb process must be screened for domestic violence and power imbalances at some point before the arbitration.

Normally the person who mediates also does the screening, unlike in a pure arbitration, in which the screening is done by someone other than the arbitrator. The arbitrator must certify that the parties have been screened.

The parties must have independent legal advice at some stage before the arbitration; normally this would be provided when the mediation/arbitration agreement is signed.

The mediation/arbitration agreement is itself an arbitration agreement to which the new rules apply, as set out above.