There are a range of hybrid processes used in ADR such as:-

• Mediation followed by Arbitration otherwise known as MED-ARB

• Arbitration followed by Mediation otherwise known as ARB-MED

MED-ARB combines the best features of Mediation and Arbitration into a combined process. In this process, the Parties engage with an independent and impartial third Party who endeavours to reach a settlement initially via Mediation over a fixed duration and if some or all issues in dispute are not resolved within this time frame then these are submitted to Arbitration usually with the same third Party (if qualified) now acting in the capacity of Arbitrator. Procedural Rules are agreed by the Parties prior to engagement in the process and it offers the Parties the opportunity to resolve the dispute when they are in control of the process and prior to arbitration.

Advocates of the MED-ARB hybrid process claim benefits for this form of ADR in terms of speed, cost, flexibility and finality of process. However, some critics say that it inhibits open and frank mediation due to the fact that the same person may also be acting in the capacity of Arbitrator and may use confidential information against the Party disclosing same in the Mediation phase.  

ARB-MED works in the reverse by having a sole Arbitrator appointed by agreement to conduct an arbitration on all matters in dispute between the Parties over a defined time-frame. The Arbitrator makes his or her award and seals the award in an envelope that is only opened if the Parties fail to reach agreement in the subsequent Mediation. The advantage of this process is that the presentation of evidence at the Hearing and the making of an arbitral award serves to focus the Parties minds on achieving a mediated settlement.

The hybrid ADR processes appeal to some Clients but due to ethical considerations this appeal appears to be mainly coming from non-Common Law jurisdictions. In any event, hybrid ADR processes are not in widespread use in Ireland and the United Kingdom.

Brian M. O’Connor has an in depth knowledge and expertise in the various forms of Construction ADR in use in both Ireland and the U.K. and this knowledge enables him to advise Clients in relation to the use and appropriateness of hybrid processes, in any given situation.

Brian M. O’Connor’s experience of Construction ADR in Ireland means that he is well placed to advise Clients on the relative merits or de-merits of the various hybrid ADR processes.