The Challenges and Benefits of Using Hybrid Dispute Resolution
The Challenges and Benefits of Using Hybrid Dispute Resolution
ABSTRACT
In recent years, hybrid dispute resolution approaches, which combine aspects of arbitration
and mediation into a single process, have grown more popular as a means to settle
disagreements in a manner that is both more efficient and cost-effective. On the other hand,
putting these strategies into effect comes with its fair share of difficulties as well as
advantages. This article explores the benefits and drawbacks of using hybrid methods for the
resolution of disputes. Some of the potential benefits include the potential for increased
efficiency, improved communication and collaboration between parties, and the ability to
tailor the process to the particular requirements of the dispute. In addition, problems such as
the possibility for misunderstanding and doubt regarding the procedure, as well as the need
for practitioners to have specific training, are also mentioned in this article. In the end, the
use of hybrid dispute resolution methods is a complex and nuanced issue that requires careful
consideration of the specific needs and goals of each dispute, as well as the skills and
expertise of the practitioners who are involved. This is because hybrid dispute resolution
methods combine aspects of traditional dispute resolution methods with more modern
alternatives.
INTRODUCTION
Recent years have seen a rise in the use of blended conflict resolution procedures, which
combine negotiation and arbitration. In addition to being flexible, efficient, and cost-
effective, these methods provide a variety of other benefits. Yet, there are downsides to these
approaches that must be weighed before they are used. There are a few different ways to
settle a legal disagreement, and each has its own advantages and disadvantages. The goal of
negotiation is for both sides to walk away from the table having achieved what they both
consider to be a win. However, in arbitration, an objective third party renders a final and
legally binding judgement about the issue. The parties to a dispute might choose between
negotiation and arbitration as part of a blended approach to conflict resolution1.
Flexibility is a major benefit of using a variety of methods to resolve a conflict. The parties
may adapt the procedure to their interests by combining negotiation and arbitration, each of
which has advantages and disadvantages. In certain cases, this may make the process more
malleable and flexible, ultimately benefiting everyone involved. Blended methods may help
parties save time and resources since they let them to make the best of both approaches.
There are a number of potential downsides to using a mixed approach to conflict resolution
that need to be thought through first. One major negative is that they need extensive
collaboration and coordination on the part of all parties involved. Although both negotiation
and arbitration are intended to be malleable and responsive to the needs of the parties
involved, they may be challenging to implement if the parties are unwilling to cooperate.
1
Vakhtang Giorgadze, Can hybrid mechanisms bridge gaps in arbitration and mediation? KLUWER
ARBITRATION BLOG, (Jan. 15, 2023, 9:28 PM), http://arbitrationblog.kluwerarbitration.com/2021/04/25/can-
hybrid-mechanisms-bridge-gaps-in-arbitration-and-mediation/
The employment of both negotiation and arbitration might be confusing, which is another
another negative of mixed conflict resolution methods. Both procedures have their
advantages and disadvantages, and it’s not always easy to tell which one would work best in
a given situation. Because of this, settling disagreements may take longer than necessary.
Overall, there are many positive aspects to using a combination of conflict resolution
methods. Still, there are costs associated with using them that should be weighed carefully
before widespread use. There are a number of drawbacks to this approach, including the fact
that it calls for an excessive amount of cooperation and coordination between the parties
involved, the fact that it can be tricky to know when to resort to negotiation or arbitration,
and the fact that it can be costly to implement. Despite these caveats, when implemented
appropriately and in conjunction with adequate preparation and communication, blended
conflict resolution strategies may be an efficient means of settling disagreements.
Hybrid dispute resolution methods involve the combination of two or more dispute resolution
processes, such as arbitration and mediation. These methods are becoming increasingly
popular as they offer a number of benefits, such as increased flexibility, efficiency, and cost-
effectiveness. However, they also present challenges that must be addressed in order to be
successful. There are several types of hybrid dispute resolution methods, including Med-Arb,
Arb-Med-Arb, Med-Arb-Conc, and other hybrid methods.
1. Med-Arb- Med-Arb is a type of hybrid dispute resolution method in which the same
person acts as both a mediator and an arbitrator. In this method, the parties first attempt to
reach a settlement through mediation. If the parties are unable to reach a settlement, the
mediator then acts as an arbitrator and makes a binding decision on the dispute. This
method is useful when the parties are not able to reach a settlement through mediation,
but are willing to accept a binding decision from the mediator3.
2
Id
3
Dilyara Nigmatullina, The Combined Use of Mediation and Arbitration in Commercial Dispute Resolution:
Results from an International Study, Vol. 33, JOURNAL OF INTERNATIONAL ARBITRATION, July 2016.
2. Arb-Med-Arb- Arb-Med-Arb is another type of hybrid dispute resolution method. In this
method, the parties first attempt to reach a settlement through mediation. If the parties are
unable to reach a settlement, the dispute is then referred to arbitration. If the arbitration
process does not result in a resolution, the parties can then return to mediation to try to
resolve any remaining issues. This method is useful when the parties are not able to reach
a settlement through mediation, but are willing to accept a binding decision from an
arbitrator.
4. Other hybrid methods- Other hybrid methods include the use of mediation and
negotiation, mediation and litigation, and arbitration and litigation. These methods can be
used in various combinations depending on the specific needs of the parties involved.
The use of both mediation and arbitration to resolve disputes is very effective. To do this,
either mediation or arbitration might come first. To get a final and binding decision, the
parties may first agree to participate in mediation before agreeing to switch to arbitration. In
the event of a disagreement, the terms of a contract might spell out the steps to be taken.
Combining mediation with arbitration gives the parties more options for reaching a
settlement. Mediating and arbitrating disputes may assist parties to achieve a legally
enforceable agreement when negotiations break down. For both mediation and arbitration, the
parties have the option of using the same neutral third party. In this manner, settling a
disagreement won’t set the parties behind financially, and they may keep working on their
case with little disruption. The parties may save time and effort by keeping the same neutral
4
William H. Ross, Hybrid Forms of Third-Party Dispute Resolution: Theoretical Implications of Combining
Mediation and Arbitration, Vol. 25 (2), THE ACADEMY OF MANAGEMENT REVIEW, April, 2000.
partner throughout the proceedings. In the event of a disagreement, the mechanism for
resolving it will either be mutually agreed upon by the parties or included into the applicable
contract5.
When mediation and arbitration are used together (called “med-arb” for short), the same
neutral party is often present, allowing for a more thorough judicial examination. Even if
confidentiality is compromised during mediation, the neutral party may learn information
about one of the parties that might influence his or her choice after the arbitration process has
been taken over6. Although a neutral party may be certain that they will not learn any details
about the other, sometimes this is impossible to avoid. They are prohibited from learning of
or using any information deemed to be secret during the arbitration process.
In a combined mediation and arbitration process, parties often avoid discussing the concerns
openly out of fear of influencing the final, binding verdict. They are notoriously cagey with
information and often withhold key details. In a purely mediated dispute, the parties are free
to debate the issues at hand, reach an agreement on a resolution, or come up with an alternate
solution without fear of legal repercussions. However, when arbitration is involved, any or
both parties may attempt to exert influence over the impartial third party by participating in
conferences with the arbitrator in an effort to persuade him or her to reach a conclusion in
favour of their side. Therefore, judicial review is crucial to determine whether or not the
neutral partner has made a really impartial judgement7.
Conflicts are resolved by a mix of mediation and arbitration when both parties agree to it, and
occasionally parties use this as a threat to the mediators to get them to work quickly and
efficiently to obtain a binding conclusion. To put it simply, med-arb is not a new method for
settling disputes; rather, it combines the best features of mediation and arbitration. As a
result, parties have been able to resolve their differences amicably and avoid needless legal
battles.
Fast and inexpensive settlement of conflicts is the most significant feature of efficient and
cost-effective dispute resolution. Mediating, arbitrating, and negotiating are all viable options
for doing this. Through mediation, a third-party facilitator assists disputing parties in reaching
5
Id
6
Bobette Wolski, Arb-Med-Arb (and MSAs): A Whole Which Is Less than, not Greater than, the Sum of Its
Parts?, 6(2) CONTEMP. ASIA ARB. J. 249, 257 (2013).
7
Toshio Sawada, Hybrid Arb-Med:Will West and East Never Meet?, 14(2) ICC INTL. CT. ARB. BULL. 29, at
29 (Fall 2003)
an agreement. Many people find this approach more convenient than going to court because
of the lower costs and lack of formality. Arbitration is another popular means of conflict
resolution. Arbitration is a procedure whereby a third-party neutral decides a dispute by
weighing the facts given by both sides. This is favoured since it is quicker and cheaper than
going to court8.
Disputes may also be settled via negotiation, which is a time- and cost-saving alternative. It’s
a way for everyone involved in the conflict to work together to find a resolution that works
for everyone. In many cases, this alternative is chosen over going to court since it is quicker
and cheaper. The parties may benefit from negotiation because they can choose the
conclusion of the disagreement on their own terms.
The employment of modern technological methods is also crucial to the quick and
inexpensive settlement of disputes. In order to speed up the settlement process, technology
may be employed to improve communication between the parties. One such technique that
makes advantage of modern communication and negotiating tools is known as online dispute
resolution (ODR). Consumer disputes, small claims court cases, and workplace
disagreements are all good candidates for ODR9.
However, these are not the only strategies available for quick and cheap conflict resolution.
The usage of ADR providers is one such instance. Alternative ADR providers are businesses
that focus on settling lawsuits in a quick and cost-effective manner. They may facilitate
conflict resolution via mediation, arbitration, or other means. Providers of ADR services also
often provide education and tools meant to aid in conflict resolution between parties.
The use of early neutral assessment is another method that has shown to be both useful and
economical in resolving disputes. An impartial third party examines the issues at hand and
makes a recommendation on the merits of the case, but this recommendation does not have
any legal weight. It’s common practise to use this strategy so that the parties may achieve an
agreement more quickly and cheaply.
Ultimately, companies, organisations, and people need access to conflict resolution services
that are both quick and affordable. Mediation, arbitration, negotiation, and the use of
technology are only some of the options available for quick and cheap resolution of conflicts.
Experts from ADR services and early neutral evaluation (ENE) firms may also be of great aid
8
Barry Leon & Alexandra Peterson, Med-Arb in Ontario: Enforceability of Med-Arb Agreement Confirmed by
Court of Appeal, 2(1) NYSBA NEWYORK DISP. RES. LAW. 92, 93 (2009).
9
Ellen E. Deason, Combinations of Mediation and Arbitration with the Same Neutral: A Framework for
Judicial Review, Vol. 5, No. 12, ARBITRATION LAW REVIEW, 2013.
in settling lawsuits quickly and cheaply. In order to save time and money, the parties to a
disagreement might use efficient and cost-effective conflict resolution processes10.
3. PRESERVATION OF RELATIONSHIPS
The process of coming to a settlement or an agreement between parties who are engaged in a
conflict or disagreement is referred to as dispute resolution. It is possible for it to take on
many other forms, such as mediation, arbitration, and negotiation. The maintenance of
existing connections is an essential component of any conflict resolution process. This
indicates that the parties concerned should make an effort to preserve or enhance their
connections with one another even when they are engaged in a disagreement with one
another. The importance of maintaining connections as part of the conflict resolution process
may be attributed to a number of factors. To start, it makes communication and negotiating
more easier to carry out successfully. It is far more probable that the parties to a disagreement
will be able to achieve a settlement that is advantageous to both of them if they are able to
communicate clearly with one another and keep their relationship cordial. Second, it helps to
prevent potential disputes in the future11. When parties make an effort to maintain their
connections with one another throughout a disagreement, they increase the likelihood that
they will be able to collaborate in the future without engaging in more conflict. Third, it
contributes to the preservation of mutual respect and trust between the parties. When parties
make an effort to preserve their connections, they increase the likelihood that they will
continue to demonstrate the trust and respect that are essential to productive dialogue and
negotiation.
10
Id
11
Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides with Confidentiality, 35
U.C. DAVIS L. REV. 33 (2001).
increases the likelihood that they will be able to come to an agreement on how to resolve the
conflict12.
Utilizing facilitators who are impartial third parties is an additional key method for
maintaining relationships throughout the settlement of disputes. Mediators and arbitrators
may assist to keep the process focused on resolving the issue rather than engaging in personal
attacks or defensiveness. They can also help to foster dialogue and discussion between the
parties involved in the conflict. In addition, impartial third-party facilitators may assist in
maintaining confidentiality, which can be essential for maintaining relationships and
preventing recurring problems13.
Last but not least, it is essential to keep in mind that maintaining connections is a continuing
effort and not simply a one-time occurrence in order to be successful. Even after the conflict
has been resolved, the parties involved should continue to focus on preserving and
developing their relationships with one another. This may include doing follow-up meetings
or check-ins, as well as taking measures to forestall the occurrence of disputes of a similar
kind in the future. The maintenance of relationships is an essential component in the process
of conflict resolution. In the middle of a conflict, parties may seek to preserve or enhance
their relationships by concentrating on shared objectives, keeping open and honest
communication, using neutral third parties as facilitators, and continuing to work on
relationships even after the issue has been settled. This might result in improved
communication and negotiation, fewer future disputes, and more trust and respect amongst
the persons involved14.
ADR approaches have grown in popularity in recent years, but hybrid conflict resolution
methods that combine them with conventional litigation have also gained traction. The use of
such strategies isn’t without its problems, though, and conflicts of interest are only one of
them.
When an individual or group has competing interests, or when fulfilling one interest might
damage or jeopardise the other, a conflict of interest exists. When the same party participates
12
Id
13
Klaus Peter Berger, Integration of Mediation Elements into Arbitration: ‘Hybrid’ Procedures and ‘Intuitive’
Mediation by International Arbitrators, 19 ARB. INT’L 387, 391 (2003);
14
Gabrielle Kaufmann-Kohler & Fan Kun, Integrating Mediation into Arbitration: Why it Works in China, 25 J.
INT’L ARB. 479, 480-86 (2008).
in both ADR and conventional litigation (Litigation), a conflict of interest may arise in the
setting of hybrid dispute resolution. Since they have a vested interest in the outcome of the
case, a mediator who is also an expert witness in the case may be biased toward giving
evidence that supports their function as a mediator. Related lawsuits involving the same
person or organisation may also lead to conflicts of interest. For instance, a mediator may be
biased toward the parties they’ve dealt with in the past if they’ve been engaged in several
instances with the same parties or the same subject matter. This may cause problems with the
fairness of the settlement process and damage the reputation of those involved.
The same individual or group participating in both the ADR and conventional litigation
processes may have a conflict of interest if they stand to gain financially from the case’s
conclusion. As an example, if a mediator has financial links to one of the parties, they may be
biased toward that side rather than acting in the best interest of everyone concerned.
It is crucial that all parties participating in the dispute resolution process do their due
diligence on any individual or entity that will be handling their case. One way to do this is to
research the mediators and attorneys involved to see whether they have a vested interest in
the outcome of the case.
It is also crucial in hybrid dispute resolution that all parties be able to communicate freely and
openly about any possible conflicts of interest, and that there be a mechanism in place for any
party to voice concerns about such conflicts. As a result, this may improve the likelihood that
the settlement process will be equitable and respectful to all parties. Using a mix of
traditional and non-traditional strategies for settling legal disagreements might provide
positive results. The integrity of the dispute resolution process may be undermined and unjust
results may result if parties are not made aware of the possibility of conflicts of interest. To
lessen this risk, the parties should disclose any possible conflicts of interest and do extensive
research on the backgrounds of any individuals or organisations that may be engaged in the
dispute settlement process15.
One potential source of delays in hybrid dispute resolution methods is the fact that these
methods often involve multiple stages or steps. For example, a hybrid dispute resolution
process might begin with mediation, followed by arbitration if the parties are unable to reach
15
Thomas J. Brewer & Lawrence R. Mills, Med Arb: Combining Mediation and Arbitration, 54-NOV. DISP.
RESOL. J. 32, 34 (Nov. 1999).
a settlement. This can lead to delays if the mediation stage is not successful, as the parties
must then move on to the next stage of the process 16. Additionally, if the arbitration stage is
also unsuccessful, the case may need to be litigated in court, which can add even more time
to the process.
Another potential source of delays in hybrid dispute resolution methods is the fact that these
methods often involve multiple parties or representatives. For example, a hybrid dispute
resolution process might involve a mediator, an arbitrator, and attorneys for each party. This
can lead to delays as each party and representative must coordinate their schedules and
availability in order to participate in the process. Additionally, if any of the parties or
representatives are not available at the same time, this can lead to further delays as the
process is put on hold until they are able to participate.
Additionally, delays can also arise when parties are not fully committed to the process or the
outcome17. In hybrid dispute resolution methods, the parties have a choice whether to proceed
to the next stage of the process or not. Sometimes, one or both parties may choose to delay
the process, either because they are not satisfied with the outcome of the previous stage, or
because they are not committed to the process. This can lead to delays as the parties try to
negotiate a resolution or as they move on to the next stage of the process.
Finally, delays can also arise when parties are not fully committed to the process or the
outcome. In hybrid dispute resolution methods, the parties have a choice whether to proceed
to the next stage of the process or not. Sometimes, one or both parties may choose to delay
the process, either because they are not satisfied with the outcome of the previous stage, or
because they are not committed to the process. This can lead to delays as the parties try to
negotiate a resolution or as they move on to the next stage of the process. 18 Hybrid dispute
resolution methods present potential for delays that can be caused by multiple stages,
multiple parties, lack of commitment and other factors. However, these challenges can be
overcome by selecting the right process, choosing the right people, making sure that everyone
is committed to the process and outcome, and being flexible and open to alternatives. It is
also important to keep in mind that the goal of hybrid dispute resolution methods is to
16
Supra Note 9, at 28, 30.
17
Gerald F. Phillips, Same Neutral Med-Arb: What Does the Future Hold? 60-JUL. DISP. RESOL. J. 24, 28
(May-July 2005).
18
Thomas J. Stipanowich & J. Ryan Lamare, Living with ADR: Evolving Perceptions and Use of Mediation,
Arbitration and Conflict Management in Fortune 1,000 Corporations, SOCIAL SCIENCE RESEARCH
NETWORK at 28, Chart E (2013)
provide efficient and cost-effective solutions to disputes, and that any delays should be
balanced against the potential benefits of these methods.
The intricacy of the procedure is one of the primary obstacles when using hybrid approaches
for the settlement of disputes. This complexity may be caused by a variety of causes, such as
the need of navigating several procedural stages, the participation of multiple parties and
stakeholders, and the requirement of integrating various forms of evidence and testimony.
For instance, a hybrid method of conflict resolution may consist of both the conventional
lawsuit and the mediation processes. In this scenario, the parties would be required to traverse
not just the official court procedure but also the informal mediation process, both of which
may be time consuming and complicated for all parties involved 19. Additionally, the parties
would need to be prepared to present various forms of evidence and testimony in each forum,
which may be problematic not just for the parties but also for the conflict resolution
specialists who are engaged.
Managing the involvement of many parties and stakeholders, as well as their expectations, is
another obstacle that must be overcome when using hybrid approaches for the settlement of
disputes. In many disagreements, there may be more than one party engaged, and each of
these parties may have their own unique interests and goals. Keeping track of all of these
competing priorities and ensuring that everyone feels heard and represented can be a
complicated and challenging endeavour, especially when many strategies for conflict
resolution are being used at the same time.
The need of integrating various kinds of evidence and testimony might make the use of
hybrid conflict resolution techniques particularly problematic. In addition, this can make the
use of hybrid dispute resolution methods particularly challenging. For instance, in a hybrid
procedure for conflict resolution that includes both litigation and arbitration, the parties may
be required to submit various kinds of evidence and testimony in each of the respective
forums. This might make things unclear for the parties concerned and also provide extra
obstacles for the experts who are participating in the conflict resolution process20.
The employment of hybrid conflict resolution approaches may, in spite of these problems,
also provide a number of advantages to the parties involved. For instance, parties may be able
19
Id
20
Jeffrey W. Stempel, Asymmetric Dynamism and Acceptable Judicial Review of Arbitration Awards, 5 PENN
ST. Y.B. ARB. & MEDIATION 1 (2013)
to reach a settlement that is both more expedient and less expensive if they use a variety of
approaches to the resolution of disputes and combine them. In addition, the use of hybrid
approaches may be an aid in ensuring that all parties have a chance to have their views heard
and that the settlement of the dispute takes into account all pertinent facts.
It is important for all parties involved in the dispute, as well as professionals who specialise
in the resolution of disputes, to carefully consider the specific needs and goals of the dispute
and to devise a process that is both transparent and well-structured and that incorporates all of
the relevant elements in order to maximise the benefits and minimise the challenges of using
hybrid dispute resolution methods. In addition, it is essential to make certain that all parties
are provided with enough information, education, and support on the process, as well as that
they are in possession of the resources and assistance required to properly engage in the
process. The employment of hybrid approaches for the settlement of disputes may bring a
number of advantages; nevertheless, it also poses a number of obstacles, especially in terms
of the level of complexity presented by the process 21. Parties and experts in the field of
conflict resolution may guarantee that hybrid techniques are employed in a manner that is
efficient, effective, and fair for all parties involved if they first recognise these problems and
then take steps to overcome them.
CONCLUSION
The use of hybrid dispute resolution methods, which combine aspects of arbitration and
mediation, has become increasingly popular in recent years as a way to resolve disputes in a
more expedient and cost-effective manner. In conclusion, hybrid dispute resolution methods
combine elements of arbitration and mediation. These approaches have the potential to offer a
variety of advantages for the parties concerned, including the capacity to adjust the process to
the particular requirements of the dispute, enhanced efficiency, better communication and
cooperation, and so on. Nevertheless, there are difficulties involved with putting these
strategies into effect, which are something that must be carefully examined.
The possibility of misunderstanding and doubt about the procedure is one of the most
significant obstacles. The fact that the parties aren't sure what to anticipate or how the
procedure will be carried out may be a source of irritation and discontent for everyone
involved. Additionally, in order for practitioners to properly use hybrid conflict resolution
approaches, they may need specific training. This may add to the complexity of the process
as well as the associated costs. Hybrid conflict resolution systems provide an additional
21
Id
potential difficulty in that, if not managed appropriately, they might lead to a lack of
consistency and fairness in the settlement process. For instance, if the parties are unable to
reach a consensus on the procedure, or if the process itself is not carried out in an appropriate
manner, the conclusion may not be fair or just.
In spite of these obstacles, the use of hybrid approaches for conflict resolution may bring
substantial advantages, particularly in the case of complicated conflicts. It is crucial to
highlight that the choice to adopt a hybrid strategy should be based on a comprehensive
examination of the particular circumstances of the dispute as well as the requirements of the
parties that are involved. This is something that should be kept in mind. In addition, it is
advised that practitioners undergo specific training on how to properly utilise these
approaches, and that the process be handled fairly and consistently. This is because it is
important that the procedures be used.
In light of the growing popularity of hybrid conflict resolution approaches, further study is
required in order to get a deeper understanding of the difficulties encountered and the
advantages enjoyed when putting these methods into reality. This study might involve case
studies to investigate the efficacy of hybrid conflict resolution approaches in a variety of
different sorts of disputes, as well as surveys to collect feedback from practitioners and
parties who have utilised these methods. In addition, research might also investigate the
influence that hybrid dispute resolution approaches have on the outcomes of conflicts, in
addition to the financial and time savings that are connected with these methods.