Mediation is defined as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute, as opposed to arbitration, where the parties give the power to decide the issues in dispute to the arbitrator. But what if the parties desire or require both?
Plenty of times parties to a matter are told, both by the courts and their respective counsel, to do everything in their power to settle instead of taking part in a lengthy and costly trial. This leads many people down the path of mediation or arbitration. Often time mediation will begin, and despite best efforts, the parties will simply be unable to resolve any or all of their outstanding issues. At that time, as mediation has been exhausted without success, parties may desire arbitration. Liking the job the mediator has done up through that point, the parties then want to hire this mediator as arbitrator, seeing as he/she is deeply familiar with their issues from the mediation process. Is this allowed?
Pursuant to the case of Minkowitz v. Israeli, which was decided by the Appellate Division on September 25, 2013, the answer is no. That case states that once the arbitrator has functioned as a mediator, he/she may not then conduct an arbitration hearing. However, this does not necessarily preclude your mediator from serving as arbitrator. If you want your arbitrator to assist in settlement, then the parties must reduce to writing that he/she can serve as both mediator and arbitrator.
If you or someone you know has any questions about the mediation or arbitration process, contact one of the skilled attorneys at Lyons & Associates, P.C. at 908-575-9777. You can also fill out our online intake form.
Written By: William Lemega, Esq.