http://businessconflictmanagement.com/blog/2010/05/no-breach-by-arbitrator-who-declines-to-arbitrate/ Conflict Management Expertise from F. Peter Phillips Mon, 21 May 2012 22:10:29 +0000 http://wordpress.org/?v=2.7.1 hourly 1 http://businessconflictmanagement.com/blog/2010/05/no-breach-by-arbitrator-who-declines-to-arbitrate/comment-page-1/#comment-1991 John Sands Wed, 06 Oct 2010 01:55:51 +0000 http://businessconflictmanagement.com/blog/?p=574#comment-1991 When asked to conduct a "med-arb" as Judge Bates apparently agreed to do, I use this language in my Agreement for Mediation and Arbitration Services to protect the process: "In agreeing to retain Sands both to mediate and arbitrate their dispute, Disputing Parties waive any objections they may have that, in mediation, Sands may receive ex parte communications and learn factual matters that will not be part of the record of their arbitration proceeding and assert their acceptance of Sands’ ability, should mediation fail to settle any or all of the issues before him, to arbitrate and decide the remaining issues based exclusively on evidence in the record." It puts the parties on express notice of the nature of the process and gives me a modicum of comfort going into what can be a touchy situation. Of course, I don't accept med-arb cases unless I know the parties' counsel and trust both their professionalism and control over their clients. When asked to conduct a “med-arb” as Judge Bates apparently agreed to do, I use this language in my Agreement for Mediation and Arbitration Services to protect the process: “In agreeing to retain Sands both to mediate and arbitrate their dispute, Disputing Parties waive any objections they may have that, in mediation, Sands may receive ex parte communications and learn factual matters that will not be part of the record of their arbitration proceeding and assert their acceptance of Sands’ ability, should mediation fail to settle any or all of the issues before him, to arbitrate and decide the remaining issues based exclusively on evidence in the record.” It puts the parties on express notice of the nature of the process and gives me a modicum of comfort going into what can be a touchy situation. Of course, I don’t accept med-arb cases unless I know the parties’ counsel and trust both their professionalism and control over their clients.

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