In addition to arbitration, one of the forms of alternative dispute resolution (“ADR”), there are other adr methods. They are attractive to the disputing parties, giving them a wide range of options for resolving the dispute. They can also be just one of its stages and a supplement to arbitration, depending on the needs of a given dispute.

Other types of ADR

The most popular types of adr other than arbitration include:

• Mediation,
• “mixed” models combining arbitration and mediation, i.e., so-called arb-med and med-arb models,
• Conciliation.

Methods not included above are less common, depending on the specific nature of the dispute or a specific cultural, economic, or social sphere.

Mediation

Next to arbitration, mediation is the most popular adr method and is also considered the oldest method of resolving disputes. It is characterized primarily by (i) voluntariness, (ii) confidentiality (iii) and the participation of a third party who is impartial and neutral (mediator). We can distinguish two main types of mediation, i.e., facilitative mediation, which assumes that the mediator supports the parties in reaching an agreement – then we can accept the definition of mediation as “qualified negotiations” and evaluative mediation, in which the mediator actively participates in the search for solutions or their assessment.

Unlike arbitration, mediation does not result in a judgment but in a settlement between the parties, which, once approved by a state court, holds the same weight as a court judgment. However, it’s important to note that in arbitration proceedings, parties can have their settlement recognized as a judgment, meaning that once the court grants it an enforceability clause, the claim covered by the settlement carries the force of res judicata. Court approval of the settlement provides additional security for the parties’ claims.

For more insights on mediation, we invite you to explore our series on the topic, available on our law firm’s website [link].

Arb-med and med-arb models

Both models rely on a close connection between mediation and arbitration. However, they differ in the order in which the two methods are used and in the possible consequences of this connection.

In the case of arb-med, the parties first decide to conduct arbitration proceedings, which conclude with the issuance of an award by the tribunal. However, this award is “stored” by the administrative team of the arbitration institution or another team specifically appointed for this purpose (in the case of ad hoc arbitration) and is not communicated to the parties at the adjudication stage. This stage is followed by a mediation phase, in which the parties, due to the conduct of the arbitration proceedings, are aware of their procedural positions and, for this reason, may be willing to reach a settlement. If a settlement is not reached, the award “stored” until now will be communicated to the parties and binding on them.

Med-arb begins with mediation, where the parties aim to resolve the dispute. If no agreement is reached, the parties proceed to arbitration. In practice, two approaches have developed regarding the third party in both phases, namely, the mediator and the arbitrator(s). In the american context, it is permissible for someone who acted as a mediator to also serve as an arbitrator during the arbitration proceedings. In european culture, however, this practice contradicts the principle of impartiality expected of a mediator and arbitrator and is not commonly accepted.

Conciliation

This is an adr method that resembles mediation in form. However, it primarily differs in that after hearing from the parties involved in the dispute and gathering all the necessary information, the conciliator (or conciliation team) formulates a proposal for a settlement or specific solutions and presents them to the participants. The parties then have, among other options, the following choices:

• Accepting the conciliator’s proposal in full,
• Accepting the conciliator’s proposal partially and further developing the remaining elements either with the conciliator or solely among themselves,
• Rejection of the proposal and resignation from conciliation.

Summary

Arbitration is not the only method of alternative dispute resolution (adr) usedto resolve conflicts. Multi-tier dispute resolution clauses are becoming increasingly common. These clauses outline the individual steps that the parties involved must complete before proceeding to arbitration, typically involving negotiations or mediation, often referred to as med-arb.

It is therefore important to deepen your understanding of the characteristics of a specific method, and especially the consequences associated with using it or combining it with other adr methods. Additionally, planning an appropriate strategy tailored to a specific adr is crucial, as it allows the party to effectively protect its interests. Remember that not every method is universal; it’s the characteristics of a given dispute or conflict that determine which methods are likely to succeed.

Literature:

Gmurzyńska E., Morek r. (red.), Mediacje. Teoria i praktyka, Warszawa 2024;

Włodyka S., Szumański A. (red.), System prawa handlowego. Tom 8. Arbitraż handlowy, Warszawa 2015.