Med-Arb: Navigating the High-Stakes Pressure Cooker

Ken Strongman

2 weeks ago

In the world of labor and construction disputes, there is perhaps no ADR method more efficient—or more intense—than Med-Arb. In this hybrid model, the parties agree to participate in mediation, with the explicit understanding that if they fail to reach a settlement, the neutral immediately dons the hat of an arbitrator and issues a binding award.

The purpose of Med-Arb is to apply maximum pressure. It removes the “we’ll just see what happens at trial” escape hatch. You either compromise now, or you live with the (often unpredictable) decision of the person sitting across from you.

The Confidentiality Trap

For the litigating attorney, Med-Arb requires a shift in strategy. In a standard mediation, you might be very candid with the mediator about your case’s weaknesses. In Med-Arb, that “candor” is a double-edged sword.

Will the neutral be able to forget the “confidential” weakness you shared in the morning session when they are writing the binding arbitration award in the afternoon? This risk often makes parties more guarded, which can ironically make the mediation phase less effective.

Why Histrionics are a Strategic Failure

There is a unique psychological advantage in Med-Arb: the “Antagonism Tax.” Only a foolish party would engage in flamboyant histrionics or unprofessional behavior during the mediation phase. Why? Because the person you are antagonizing is the same person who will shortly be making a final, binding decision on your client’s liability and damages.

This inherent pressure often leads to a higher degree of “goodwill compromise” and professional conduct than almost any other forum.

Actionable Takeaway: The Med-Arb Checklist

Vet the Neutral Twice: In Med-Arb, the neutral is both your helper and your judge. You must trust their ability to compartmentalize information.
Strategic Disclosure: Be mindful of what you share in “confidential” caucuses. If the matter moves to arbitration, assume the neutral knows your floor and your ceiling.
Leverage the Certainty: Use the looming threat of the “Arbitration Phase” to push the other side toward a commercially sensible compromise now.

Med-Arb provides the one thing litigation often lacks: Certainty. If you need a neutral who can balance the delicate roles of facilitator and decider, I am available for complex Med-Arb assignments. Let’s connect to discuss your case.

This blog is adapted from my unpublished manuscript on Alternative Dispute Resolution (ADR).

About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and Instructor (International Mediation Institute Coach and Assessor) at UC Law San Francisco.