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Med-arb is an Alternative Dispute Resolution identified as an intellectual illusion.

[edit] General Definition

It is a practice developed in Anglo-Saxon countries that consists in the association of arbitration with mediation, in one process. It seems this process also benefits of a positive welcome in the Nordic countries.

In France, to recourse into Med-arb is definitely confidential. It is described as follows:

  • A mediation process and an arbitration which are simultaneously implemented between the parties in conflict that enables to reach in all cases a solution to the dispute: either amicably through the mediation process or by a constraining decision with arbitration. Thus, mediation does not slow the search for a binding solution; and arbitration, as a "sword of Damocles" over the heads of the parties pushes them for a negotiation both quick and effective during the mediation.

But there is no indication that companies are using this contradictory system through the approach of the mediator, who initiates his intervention while knowing he will eventually have to become an arbitrator within the same case. It is therefore difficult not to consider that he will not adopt a position of instructor (in the sense of the judge) during the first stage, instead of being a mediator.

Indeed, if the mediation process fails, whatever the reason - even because of his incompetence - the mediator becomes an arbitrator.

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