Originally from Dispute Resolution Journal

The author argues for greater use of med-arb using the same neutral in both phases of the process, citing its many advantages and ways to overcome its disadvantages. The author also provides suggested contract language and a sample stipulation and waiver agreement.

A dispute is to be resolved together, not to be won. —Tom Arnold, mediator and arbitrator

In 1906, Dean Roscoe Pound suggested that our legal system must adjust its principles, doctrines and institutions of justice from a purely “mechanical,” “rule-centered approach” to one that considers “the human conditions they are to govern ... putting the human factor in the central place.”1 He also recognized that “the most important and most constant cause of dissatisfaction with all laws at all times is to be found in the necessarily mechanical operation of legal rules.”2 This observation is as true today as it was early in the 20th century, especially when it comes to new methods of conflict resolution. Often changes are discouraged or even forbidden because critics assert that they violate some rule or another. That seems to be the case with a process this article calls “same-neutral med-arb”*—a process that I believe will become increasingly more important in the future. Is same-neutral med-arb to which the disputing parties give their informed written consent, rejected because of a “mechanical” rule?

Many mediators and arbitrators agree that parties should have the right to use same-neutral med-arb. Richard Chernick, vice president and managing director of arbitration practice at JAMS, and a respected arbitrator and mediator has opined: