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Parallel Track Arbitration-Mediation

Friday, June 06, 2025 9:44 AM | Anonymous

Pair of rusty railroads on a sunny blue day Two sets of railroad tracks run straight and parallel to a vanishing point on the horizon with green trees along side. parallel tracks stock pictures, royalty-free photos & images

In a parallel track arbitration-mediation, what kinds of communications or coordination are appropriate, if any, between the arbitrator and mediator, while recognizing that confidential mediation discussions should not be disclosed? What can the parties or the arbitrator do to assist the mediator in scheduling and structuring mediation sessions to optimize the chances of a successful settlement? Should parallel track arbitration-mediations be encouraged by arbitral institutions or arbitrators? Should they be the norm?

What are your thoughts? 

Comments

  • Friday, June 06, 2025 9:59 AM | Jerry Bramwell
    Mediation is a voluntary process in which the parties attempt to resolve their disputes amongst themselves with a neutral's assistance. Arbitration is a voluntary process in which the parties ask a neutral third party to resolve their dispute for them. Arbitrators and mediators should never speak.
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    • Friday, June 06, 2025 10:22 AM | Scott Brinkmeyer
      As a member of the AAA National Panel of Civil Neutrals and a state supreme court approved mediator for over 20 years, I agree with Mr. Bramwell. These are two distinctly different and largely confidential processes requiring very Contrasting mindsets of the arbitrator and mediator. Communication should be avoided, unless parties have chosen the same individual to do both. There would be too much opportunity to slip into discussing the case.
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  • Friday, June 06, 2025 10:08 AM | Antonio García Padilla
    Arbitrators and mediators should communicate to coordinate and facilitate the development of the respective processes, but not to discuss the substance of the case.
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  • Friday, June 06, 2025 10:09 AM | Ron Kelly, Berkeley, California
    In California the statutory prohibition on mediators communicating with arbitrators, courts, and any other form of adjudicative tribunal is strict. Please see statute below and legislative intent statement. You'll find nearly identical statutes in states having adopted the Uniform Mediation Act.

    § 1121. Mediator reports and communications

    1121. Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.

    [Legislative intent explanation by the sponsoring Law Revision Commission:]
    Comment. Section 1121 continues the first sentence of former Section 1152.6 without substantive change, except to make clear that (1) the section applies to all submissions, not just filings, (2) the section is not limited to court proceedings but rather applies to all types of adjudications, including arbitrations and administrative adjudications, (3) the section applies to any report or statement of opinion, however denominated, and (4) neither a mediator nor anyone else may submit the prohibited information. The section does not prohibit a mediator from providing a mediation participant with feedback on the dispute in the course of the mediation.

    Rather, the focus is on preventing coercion. As Section 1121 recognizes, a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decision-maker on the merits of the dispute or reasons why mediation failed to resolve it. Similarly, a mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral. See Section 1117 (scope of chapter), which excludes settlement conferences from this chapter.

    The exception to Section 1121 (permitting submission and consideration of a mediator's report where "all parties to the mediation expressly agree" in writing) is modified to allow use of the oral procedure in Section 1118 (recorded oral agreement) and to permit making of the agreement at any time, not just before the mediation. A mediator's report to a court may disclose mediation communications only if all parties to the mediation agree to the reporting and all persons who participate in the mediation agree to the disclosure. See Section 1122 (disclosure by agreement).
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  • Friday, June 06, 2025 10:26 AM | K Washington
    People work on deadlines. While arbitrators don't have the authority to order mediation unless the contract so provides, the parties can agree to go. In the prehearing conference, the arbitrator can ask the parties if they want to go to mediation and if they want to memorialize a mediation deadline. If they agree, then it gets it on their calendar and helps keep the parties on track. It may also help prevent the dreaded late cancelation due to settlement.
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  • Friday, June 06, 2025 10:27 AM | Robert L. Arrington
    Arbitrators have no business knowing what is going on in mediation, except whether the mediation has ended in settlement or impasse. It is fine for arbitrators to know that mediation is ongoing, but they don't need to know anything else.
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  • Friday, June 06, 2025 10:35 AM | Thomas
    In my view, parallel tracks are not effective. Depending upon the circumstances and parties, I would advise to make them sequential. If the parties are completely unrealistic, or unprepared, or not well served by counsel, arbitration may be a better place to start. Normally though for global disputes, I would advise to do the mediation first, then the arbitration, and if warranted, shift from the arbitration to mediation if it appears the parties are closing in on a potential agreement
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    • Friday, June 06, 2025 1:09 PM | David Knotts
      I agree. If the arbitration has been initiated, it can be stayed pending the outcome of the mediation.
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  • Friday, June 06, 2025 11:34 AM | Lisa Pomerantz
    I just addressed this issue in an intake call with counsel in a state court mediation. I think mediations are most successful when the parties and counsel are focused on preparing for the session and not distracted by having to comply with discovery or other deadlines or demands of the arbitration process. Also, counsel's role in representing a party in mediation differs from their role as an advocate in arbitration or mediation, and it is preferable that they do not have to act in both roles simultaneously, especially in their dealings with opposing counsel.
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  • Friday, June 06, 2025 12:04 PM | Jack Marshall KC
    The objective being to resolve disputes, having parallel track arbitration-mediations is to be encouraged provided that is what the parties want and they are prepared to accept the additional cost as it typically involves two sets of counsel and party representatives.
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  • Friday, June 06, 2025 12:46 PM | Delton Henderson
    As a meditator turn arbitrator, I believe strongly in the value a parallel track arbitration-mediation can offer to the disputants and their teams. This is especially true before the parties begin to exchange relevant/material information pursuant to AAA rules. It has become my practice to remind the parties during the preliminary hearing or in pre-hearing correspondences that mediation is also available to them highlighting all the benefits of a self-guided process can offer. It further helps to emphasize my "firm but fair" approach to arbitration, which deeply rule orientated.
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  • Friday, June 06, 2025 2:54 PM | Jeffrey Pardo (jjp@pardo-adr.com)
    Arbitrators decide disputes; mediators help the parties resolve their differences (including but not limited to any claim). Despite possible overlap, they are independent processes. An arbitrator should not allow possible mediation to interfere with the arbitration process. At most, I inform the parties at the preliminary scheduling conference of their right to mediate their dispute, either privately or through the AAA. I also inform them that the arbitration schedule is independent of any mediation. They should be prepared to arbitrate according to the agreed schedule and notify the case administrator if the case should settle (with or without the benefit of mediation). Beyond that, I stay in my lane.
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  • Friday, June 06, 2025 3:06 PM | Judge Richard B Klein (ret.)
    The normal answer is "it depends." I agree that other than logistic subjects, there should be no substantive discussions between the arbitrator and mediator. If a case is originally arbitration, and it appears to the arbitrator that it should be settled, I see nothing wrong with suggesting mediation. There should be no pressure, just a question. It rare cases, particularly smaller ones, if the arbitrator has spent a good deal of time learning the issues, it might be possible that the arbitrator conduct mediation, and if the case doesn't settle, someone else should be the arbitrator. Again, this should be just a suggestion, without any pressure.
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  • Friday, June 06, 2025 7:44 PM | Dennis Estis
    I believe it would be a mistake to have the mediator and the arbitrator(s) having some sort of communication between them. This is likely to result in the mediator serving as either a second arbitrator or a fourth arbitrator. No matter how hard the mediator may try, he or she is going to convey their thoughts as to how the matter should be resolved. The mediator cannot help him or herself.
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  • Saturday, June 07, 2025 6:09 AM | Anonymous
    To preserve integrity:

    1. Use clear role separation and written process protocols.

    2. Encourage party agreement on information boundaries and obtain explicit informed consent where role duality is used.

    How Parties or Arbitrators Can Assist the Mediator?
    To optimize mediation success in a parallel track process:

    1. Early coordination: The arbitrator or case manager can help organize early contact with parties and counsel, enabling the mediator to understand key logistical and stakeholder concerns.

    2. Structured pre-mediation process: Encourage participants to submit mediation briefs, identify key issues, and clarify settlement authority ahead of time.

    3. Logistics and timing: Parties and the arbitrator can work with the mediator to sequence mediation to maximize utility—ideally before costly evidentiary hearings or dispositive motions.

    Best practice suggests:

    1. Encouragement only when institutional rules or parties provide for structural protections.

    2. Arbitral institutions may promote them where role duality is avoided, or with strict process design protocols.

    3. Some institutions (e.g., the AAA and ICC) have shown cautious support but stress clarity on procedural rules and party consent.
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  • Monday, June 09, 2025 8:24 AM | Robbie MacPherson
    The best practice is for there to be no communication between the mediator and the arbitrator, nor is there any need. I have been a court appointed mediator in the New Jersey Superior Court, Supreme Court of NY , NY County and the Southern District of NY since those programs started in the early 1990s. In all that time I have spoken to 1 Judge, and that was before the mediation started.
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  • Monday, June 09, 2025 11:18 AM | Henry Parr
    i would say none or limited to nothing more than scheduling but really that shouldn't be necessary
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  • Monday, June 09, 2025 12:56 PM | Thomas M Haskins
    No communications shoudl occur betwee the arbitrator and the mediator prior to resolution by Award or Settlement. Too many grounds to set aside any award or agreement.
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  • Tuesday, June 10, 2025 11:25 PM | Chris Helmer
    This doesn't exactly answer your question, which others have done, but poses a new issue. I have a parallel track mediation/arbitration where the parties don't want to actually mediate until about a month before the merits hearing. They have a lot of discovery to do. Mediation is required by their contract. What if when discovery is done one wants to mediate and the other doesn't anymore--thinks it would be a waste of time. Mediation is a good thing. But it won't be very useful if the parties don't have enough information. And it will get in the way of efficient arbitration resolution if it is done right up to the merits hearing and then the merits hearing gets kicked over to continue the mediation. I think the contractual requirement of mediation puts a different wrinkle on this. Of course people try to settle cases throughout the arbitration process, but I am concerned for the party who wants resolution and who thinks the mediation isn't going anywhere. Do we really want to get into the area of judging whether mediation has gone forward in good faith or not?
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    • Saturday, June 14, 2025 11:47 AM | Joe Matthews
      I would like to present a slightly dissenting view. Coming from Florida, where mandatory mediation of almost all civil disputes has been the law for more than 35 years, I have recently begun to explore the role of mediation in connection with arbitration and I am coming to the view that one size will not fit all. While I agree that in most cases, it will be best to minimize the communication between arbitrator and mediator, where arbitration involves complicated and sophisticated parties and disputes, some communication between mediator and decisionmaker may be desirable. This is particularly true where arbitration may now involve multiple parties through new consolidation rules or cross-arbitration provisions, such as in some construction settings. Although I agree that a mediator should avoid having an impact on the decision itself, there are likely times in the course of complicated proceedings when the sequence of decision making could have a big impact on settlement efforts and could substantially reduce the cost and length of arbitral proceedings. In particular, effectively implementing such mediation innovations as "Guided Choice" mediation in construction arbitration may depend on some communication between mediator and arbitrator. Some of it may be coordinated though a more robust role of forums, but my point is that a hard and fast rule prohibiting any communication between mediators and arbitrators may not be a good idea in all situations.
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