Assignment:
MEDIATION & ARBITRATION
Assignment Overview
Mediation? Arbitration?
. Don't we have enough of each one by itself?
. To make matters "worse," the following article sheds an interesting light on the combination of these two strategies, and the sequence between them.
Case Assignment
Please read (access via ProQuest):
McLean, D.J., & Wilson, S.P. (2008). Compelling Mediation in the Context of Med-Arb Agreements. Dispute Resolution Journal. New York: Aug-Oct 2008. Vol. 63, Iss. 3; pg. 28. Abstract: It is obvious to all who work in the alternative dispute resolution (ADR) field that the most important federal statute -- the Federal Arbitration Act (FAA) -- does not define its key term: "arbitration." A recent case, Advanced Bodycare v Thione, invited the 11th Circuit to explore which types of ADR processes are considered "arbitration" for purpose of the FAA.
Under the 11th Circuit's narrow test, an agreement to mediate, as well as an agreement to mediate or arbitrate, falls outside of the scope of the FAA. There is a fundamental distinction between an ADR agreement that allows parties to either mediate or arbitrate disputes, and a classic med-arb agreement, which calls for mediation as a condition precedent to binding arbitration. While a med-arb agreement was not before the 11th Circuit in Thione, the authors caution against applying that court's reasoning to med-arb agreements..
After carefully reading through the background materials, and this article, please answer (in about 3 pages), the following question:
. How do the relative advantages of mediation and arbitration, create a synergy in a combined strategy of MED-ARB?
Assignment Expectations
1. Point out the advantages of each method, then
2. Focus on how when combined they create synergy.
3. Do not summarize the article, but input your insight as to the concepts of each method and their combination.