![\"\"](\"http:\/\/simplifysuccession.com.au\/wp-content\/uploads\/2014\/07\/manyhats.jpg\")
<\/p>\nAlso at the UIA Forum in Amsterdam, a panel on \u201cMed\/Arb: Myth or Reality!\u201d was offered, complete with exclamation mark.\u00a0 The panelists were from the US and the UK, which seemed odd inasmuch as I had understood that the practice of med\/arb — that is, of wearing more than one hat — is more broadly accepted in every region of the world other than those two.<\/p>\n
<\/p>\n
<\/p>\n
After an introduction of the topic by Rahim Shamii, of the ADR Group<\/a> in London, his American colleague Tom Valenti suggested that the original model (whereby a mediator is asked to make a final and binding decision) has morphed into a more nuanced set of practices.\u00a0 For example, sometimes the parties select a different arbitrator rather than the mediator.\u00a0 Sometimes that appointment can be accompanied by a recommendation of the mediator.\u00a0 Sometimes the mediator works at the same time as the arbitrator.\u00a0 Sometimes these processes are planned and sometimes adopted on the spot (or planned with an opt-out).\u00a0 And there is arbitration where the award is sealed pending immediately\u00a0ensuing mediation.\u00a0 Sometimes mediation takes place during periodic \u201cwindows\u201d of the arbitration process, focusing either on the whole dispute or on a discrete part of it.\u00a0 Valenti posed both advantages and risks to the same neutral\u2019s serving in processes that rely on (in the one instance) confidential ex parte<\/em> communications and (on the other) open presentation of evidence with opportunity for rebuttal and challenge.<\/p>\n Colin Wall<\/a>, who until recently practiced as a mediator and arbitrator in Hong Kong, noted the Chinese historical practice of conciliating problems within villages in order to keep everyone in the same communities.\u00a0 He argued that litigation was considered shameful from the time of Confucius through Mao.\u00a0 That is why CIETAC arbitrations always had conciliation provisions.\u00a0 Similar Arb-Med-Arb provisions are found in Hong Kong, Singapore and Australia.\u00a0 UNCITRAL, IBA and other acknowledged rules permit arbitrators who have acted as mediators to resign if they are uncomfortable returning to their role as arbitrator.\u00a0 Wall also noted that Article 5 of the New York Convention can be read to require the initiation of arbitration prior to coming to a mediated settlement in order for an enforceable award to be issued.\u00a0 Wall concluded that Arb-Med-Arb has no practical viability, both because of its structural flaws and because of the sufficiency of more orthodox processes.<\/p>\n