Hats for Sale: Efficiency, Economics, and Process Integrity

Abstract

(Excerpt) What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, and process integrity, and compromise the benefits of mediation. What makes this neutral selection even more challenging is that there is no consensus about the best way to ethically proceed. This column highlights these issues

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This paper was published in St. John's University School of Law.

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