Single-Neutral Dual-Role Processes – Workable or Worrisome Redux

Introduction

The authors of a 2019 piece concerning mixed mode dispute resolution posed the following scenario:

You are the sole arbitrator in a vigorously contested proceeding. You have heard four days of testimony during an evidentiary hearing anticipated to last 10 days. At the outset of the fifth day, the parties’ attorneys advise you that their clients would like to try to settle. You respond by offering to contact the tribunal administrator to request a list from which the parties can choose a suitable facilitator to assist them in resolving the dispute. The parties’ counsel inform you that is not what their clients had in mind. Rather, the parties have asked that you suspend the taking of testimony so that you can assume the role of mediator, with the understanding that if the case is not settled, you will put your arbitrator hat back on and decide the case.[1]

What should you do?             

Strategic decisions to engage in alternative dispute resolution are often not as simple as choosing to mediate or arbitrate. Much has been written in recent years about mixed mode or hybrid processes. Disputants are increasingly invoking these procedures, hoping to structure processes that will provide them with optimal, sometimes multiple, and ultimately successful opportunities to resolve disputes.

Most of the literature concerning mixed mode and hybrid processes describe situations in which different neutrals – one serving as an arbitrator and another as a mediator – participate in the resolution of the case. These procedures can be employed concurrently or sequentially.

This article is devoted to a different type of mixed mode or hybrid process, one in which a single neutral performs dual roles – as both an arbitrator and a mediator – in the same proceeding. This article uses the term switching hats to describe the performance of dual roles by a single neutral in the same case because the term mixed mode often contemplates the use of multiple procedures by different neutrals.

The most common mixed mode or hybrid processes have come to be known as Med-Arb, Arb-Med, and Arb-Med-Arb. While these terms have been used to describe scenarios in which different neutrals perform the roles of arbitrator and mediator, this piece uses such terms to characterize scenarios in which the same neutral performs both roles.

Thus, in a Med-Arb process, the parties first engage in mediation. If the mediation is successful and the dispute is resolved, that is the end of the process. If the mediation fails to produce a complete settlement, the mediator assumes the role of arbitrator. The arbitrator then hears and adjudicates the dispute and enters an arbitration award.

In an Arb-Med scenario, the parties first engage in arbitration. The arbitration proceeds to a point at which the parties wish to mediate. Again, if the mediation is successful and the dispute is resolved, that is the end of the process. The Arb-Med-Arb aspect of the process comes into play if the mediation does not produce a complete settlement. In those circumstances, the arbitrator puts her mediator hat aside, proceeds to hear and decide the case, and enters an arbitration award.

The disputants in the hypothetical arbitration asked you to engage in a single-neutral, dual-role process. They have asked you to switch hats from arbitrator to mediator with the possibility that you will have to switch back from mediator to arbitrator if the dispute is not resolved during the mediation phase.

As the arbitrator in that situation, you are concerned that performing the dual roles of arbitrator and mediator in a single case may not be permissible under applicable law, ethical canons, or institutional provider rules governing the proceeding. You are also concerned that, if you have to resort back to serving as an arbitrator after having participated in ex parte settlement discussions with each of the disputants in your capacity as a mediator, the enforcement of your arbitration award may be jeopardized. For those reasons, you are inclined to deny the parties’ request that you engage in the process that their counsel have outlined. Why look for trouble?

You politely but firmly inform the parties’ counsel of the significant risks associated with the process that their clients have proposed, and you strongly recommend that they select another neutral as their mediator. But the parties are steadfast. They do not want to spend the time or the fees that would be necessary to get another neutral “up to speed;” they tell you that your knowledge of the facts and your familiarity with the dynamics of the parties’ relationship uniquely qualifies you to assist them in settling the case. And they express confidence in your ability to decide the case fairly and without bias if the mediation is unsuccessful.[2]

The parties have made your decision more difficult. Do you really want to interfere with party autonomy and self-determination in arriving at a bespoke dispute resolution mechanism that the parties mutually agreed would optimize the prospects of resolving their dispute and fulfill both parties’ objectives? After all, isn’t it the parties’ process?

There is no one-size-fits-all answer to that dilemma. The thesis of the authors of the 2019 piece was: “It depends.” That is still the case in 2025. The answer will depend upon a number of factors, including the particular facts and circumstances of the parties’ dispute; the personal experiences, comfort levels, and preferences of the disputants, their advocates, and the neutral; the parties’ willingness to engage in collaborative education concerning, and consideration of, process options designed to minimize risks; and the degree to which the neutral has been trained to perform multiple dispute resolution roles, and possesses the necessary skills, experience, and temperament to effectively switch hats during the course of the proceeding.

The purpose of this article is to provide neutrals with some practical guidance that will assist them in making a prudent judgment regarding whether to accept an assignment that involves performing dual roles in the same case. That guidance takes two forms: (1) proposed best practices for single-neutral, dual-role scenarios, and should they decide to do so, furnish advice that will facilitate the ability of qualified neutrals to perform dual roles during the course of resolving a commercial dispute; and  (2) a proposed written form of Consent and Waiver designed to ameliorate the risks associated with undertaking dual roles.

Best Practices for Single-Neutral, Dual-Role Processes

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1. Scenarios in Which Neutrals May Potentially Switch Hats      

1.1      Prior Agreement. Parties may incorporate a Med-Arb, Arb-Med, or Arb-Med-Arb process in a pre-dispute written agreement. Alternatively, the parties may select such a process after a dispute has arisen but prior to the commencement of the mediation or arbitration. Med-Arb procedures are generally agreed upon by the parties in advance and memorialized in the parties’ pre-dispute resolution agreement.

1.2        Mid-Dispute Agreement. In circumstances where the mediation or arbitration has already commenced, parties may jointly request during the course of the proceeding that the neutral assume an additional role. Such a proposal also could be initiated by the neutral but, for reasons set forth below, that is generally not regarded as a best practice. Arb-Med and Arb-Med-Arb are typically ad hoc procedures that are agreed-upon mid-suit.

1.3       Arbitration Pursuant to Post-Mediation Settlement Agreement. In circumstances where a mediator has facilitated a settlement, the parties may request that the settlement agreement designate the mediator as an arbitrator to adjudicate any disputes arising under the mediated settlement. 

2. Reasons/Rationales for Switching Hats

Those who advocate the performance of dual roles by a single neutral in the same case despite the potential challenges and pitfalls of doing so point to certain perceived advantages of such a process, as follows:

2.1       It is the “parties’ process” and “arbitration is a creature of contract.” The   procedures and rules of institutional dispute resolution providers widely recognize that dispute resolution professionals should honor and enforce the process selected by the parties. Commercial parties may have good reasons for wanting a single neutral to assume dual roles in resolving a dispute, particularly in circumstances where both parties deem the need for a prompt, final resolution to be of paramount importance. For example, in circumstances where the parties express interest in having their appointed arbitrator assume the role of mediator, the parties may not want to spend the time or the fees that would be necessary to get another neutral “up to speed”; the parties may feel that the neutral’s knowledge of the relevant facts and law, and her familiarity with the dynamics of the parties’ relationship, uniquely qualify her to assist them in settling the dispute; and their observations of the neutral during the arbitration phase may have engendered confidence in the neutral’s ability to decide the case fairly and without bias if the mediation is unsuccessful.

2.2       Parties’ confidence in and rapport with neutral. The parties’ ability to observe the neutral manage the proceedings may engender the parties’ confidence and trust in the neutral’s fairness, integrity, and understanding of the relevant issues. That confidence and trust, in turn, can establish a rapport between the parties and the neutral as they work toward a resolution of the dispute during the mediation phase of an Arb-Med or Arb-Med-Arb process. The parties may conclude that an arbitrator who has earned their confidence and trust is the ideal candidate to mediate their dispute. Conversely, the parties may decide that a mediator who has earned their confidence and trust is the ideal candidate to decide their dispute if the parties are unable to reach a negotiated settlement.

• Cost savings. A desire to save attorneys’ fees and arbitration costs may motivate parties to change course during the course of an arbitration and pursue mediation. For those parties, the ability to have the previously appointed neutral assume dual roles fulfills their business objectives. By contrast, bringing in another neutral to mediate in an Arb-Med or Arb-Med-Arb setting may require the parties to incur significantly greater costs associated with the need to bring the second neutral “up to speed” on matters with which the original neutral is already fully familiar. Those additional costs may frustrate the parties’ business objectives and eliminate the parties’ motivation to change course and pursue mediation.
• Time Savings. A desire to expedite the resolution of the dispute is another factor that may motivate parties to change course during the course of an arbitration and pursue mediation. For those parties, the availability of their respective decisionmakers and the neutral in the same place at the same time during an arbitration hearing may be perceived as presenting an ideal opportunity to pivot to   mediation. On the other hand, the delays that would inevitably result from the retention of another neutral and the time it would take that neutral to learn the case may destroy the parties’ interest in mediating.
• Preserving confidentiality. Commercial parties may view the engagement of a   single neutral in a dual role as enhancing the likelihood of preserving the confidentiality of their sensitive business information when compared to engaging multiple neutrals.

3. Process Concerns Associated with Switching Hats

Despite certain perceived advantages of having a single neutral perform dual roles during the course of resolving a dispute, switching hats has not achieved widespread acceptance in the U.S. dispute resolution community. That has particularly been true with respect to scenarios in which the mediator transitions from a facilitative, non-adjudicative role to an adjudicative role, as in Med-Arb and Arb-Med-Arb, during the same case. Among the reasons for concern that have been expressed are the following:

3.1       Not all neutrals have the necessary training or skills to serve in dual roles. Acting as a mediator requires a different skill set than does serving as an arbitrator. Thus, a neutral’s experience and competence as a mediator does not automatically qualify that neutral to perform the role of arbitrator, let alone in the same case. Each role by itself requires specialized training. Performing dual roles necessitates that the neutral be fully familiar with the potentially difficult issues that can arise in such a scenario and how to adapt to and address such challenges.

3.2        Not all neutrals have the temperament, managerial skills, or procedural knowledge to be effective arbitrators. Similarly, not all arbitrators have the ability to be effective mediators. It is not at all uncommon for a neutral to accept engagements solely as a mediator or solely as an arbitrator, whether out of personal preference or by virtue of the neutral’s perception that she is more effective performing one role than the other.

3.3       Not all commercial parties and advocates have participated in single-neutral. dual-role processes and they may not be able to anticipate and address the potentially difficult issues that can arise from such a process. Given the absence of authoritative, comprehensive, and widely accepted guidance regarding a neutral’s performance of dual roles in a single case, there is some degree of risk that parties agreeing to utilize such a procedure will do so without the benefit of a full understanding and appreciation of the potential challenges and pitfalls that can arise in such a scenario.

3.4        Discord between non-adjudicative and adjudicative roles. The roles of a mediator and an arbitrator, and the contexts in which neutrals perform such roles, are fundamentally different. As but one illustration, albeit an important one, ex parte communications between arbitrators and parties are not permitted. On the other hand, a mediator may engage in extensive ex parte communications with parties prior to and during the course of the mediation.

3.5      Chilling effect of neutral’s performance of dual roles upon parties’ candor during mediation phase. In a scenario in which the parties have agreed in advance that the mediator shall transition to serving as an arbitrator if the mediation does not result in a complete settlement of the dispute, the parties may be less forthcoming in their discussions with the mediator, thereby compromising the ability of the mediator to serve the parties effectively.

3.6       Potentially negative effect of neutral’s performance of dual roles upon the parties’ perception of the fundamental fairness of the process. A mediator-turned-arbitrator’s view of certain issues may consciously or unconsciously be affected by information shared by the parties with the neutral during ex parte discussions occurring during the mediation phase. Such information may not be pertinent to the issues that are dispositive of the dispute and may not be tested under the crucible of cross examination.

3.7      Jeopardizing of integrity of arbitration award. Unless the parties have addressed in a clear, written agreement the special issues and problems that may arise in a process pursuant to which a single neutral performs dual roles in a single case, the non-prevailing party may seek to disqualify the arbitrator or vacate the arbitration award rendered by the arbitrator.

4. Ethical Concerns Associated with Switching Hats

The author is not aware of any rules of ethics that are devoted specifically to single-neutral dual-role procedures such as Med-Arb, Arb-Med, or Arb-Med-Arb. However, the Model Standards of Conduct for Mediators (“Model Standards”), developed by the American Arbitration Association, American Bar Association, and Association for Conflict Resolution,[4] are certainly applicable to a neutral’s performance of dual roles in the same case. The Model Standards relating to party self-determination, quality of process, confidentiality, impartiality, and conflicts of interest are particularly pertinent to a procedure in which a neutral switches hats.

Mediator Nancy A. Welsh has aptly summarized the ethical considerations that are implicated by single-neutral, dual-role procedures:

• Whether the neutral is competent to serve as both a mediator and an arbitrator;
• Whether the parties have made a self-determined, informed decision to participate in the process;
• Whether the transition of the neutral’s role is consistent with the parties’ exercise of self-determination in making voluntary and uncoerced substantive decisions in mediation;
• Whether the transition of the neutral’s role is consistent with maintaining the quality and integrity of both mediation and arbitration;
• Whether the transition of the neutral’s role is consistent with the neutral’s maintenance of impartiality and integrity in both processes;
• Whether the transition of the neutral’s role is consistent with mediation confidentiality obligations;
• Whether the transition of the neutral’s role, particularly when the neutral has caucused privately with the parties during the mediation phase, is consistent with the neutral’s provision of a fair arbitration hearing; and
• Whether the neutral has sufficiently disclosed potential conflicts of interest associated with the transition of roles.[5]

Similar ethical considerations based upon the Code of Ethics for Arbitrators in Commercial Disputes, developed by the American Arbitration Association and the American Bar Association,[6] arise in the arbitration phase of a switching hats scenario.

Parties and neutrals contemplating the use of single-neutral mixed mode dispute resolution processes should be cognizant of the ethical considerations that are particularly pertinent in switching hats scenarios. Sections 5 and 6 of these practice guidelines addresses steps that can be taken to avoid or mitigate ethical concerns associated with these processes.

5. Need for Self-reflection by Neutral, Education and Informed Decision Making by Parties and Counsel with Assistance from Neutral, and Robust Conflict Disclosures by Neutral

5.1       Self-reflection by Neutral. A neutral’s consideration of whether to perform dual roles in a single case should start with the neutral’s careful and honest self-reflection. The neutral should ask herself, among other things, whether (a) she has the requisite training, skills, knowledge, and temperament to serve as both a mediator and an arbitrator; (b) she is comfortable acting as both an arbitrator and a mediator in the same case; (c) she could resume her role as an arbitrator following an unsuccessful mediation without being biased or otherwise influenced by information she learned during the mediation phase, and she could decide the dispute solely upon the evidence presented during the arbitration phase; (d) she is willing and able to fully inform the parties and their advocates of the potential risks presented by a switching hats scenario; and (e) she can devise and memorialize a written protocol, with the participation of the parties and their counsel, that ameliorates those risks.

If the neutral cannot answer all of those questions affirmatively, she should respectfully decline the assignment.

If, however, the neutral can answer those questions affirmatively, she should inquire of the institutional provider selected by the parties (if any) whether the provider will continue to administer the case that in circumstances where the neutral would perform dual roles in the same case. If the provider is willing to do so, the neutral should proceed to fully discuss with the parties and their counsel the potential pitfalls and risks presented by the neutral’s performance of dual roles. As part of that discussion, the neutral should work with the parties and their counsel to identify and consider the implementation of steps that could be taken to minimize those risks, as discussed in Sections 5 and 6 below.

5.2.      Education and Informed Decision Making by Parties and Counsel with Assistance from Neutral. The neutral cannot reasonably expect parties and their counsel to be fully familiar with all of the potential pitfalls and risks of single-neutral, dual-role processes. Standard I of the Model Standards entitled Self-Determination, provides that “[a] mediator shall conduct a mediation based on the principle of party self-determination.” The term “self-determination” is defined as “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Emphasis supplied.) A neutral that fails to fully inform the parties and their counsel of all the information that is relevant to a party’s decision to engage in an Arb-Med, Med-Arb, or Arb-Med-Arb process may run afoul of Model Standard 1.

5.3       Before deciding to utilize Med-Arb, Arb-Med, or Arb-Med-Arb, the parties and their counsel should engage in education and reflection concerning the potential advantages and disadvantages of engaging in such a process. Consistent with the concept of party autonomy and  self-determination, it is the responsibility of the parties and their advocates to (a) educate themselves, with the assistance and guidance of the neutral and the administering institutional provider (if applicable) concerning the potential pitfalls and risks, and make an informed decision regarding whether the potential benefits outweigh the risks; and (b) satisfy themselves that the neutral possesses the process management skills, relevant substantive and procedural knowledge and experience, temperament, and availability to successfully perform dual roles in the same proceeding.

5.4        Insistence Upon Robust Conflict Disclosures by Neutral. Although this author would disagree, disclosure obligations for mediators are sometimes perceived to be less rigorous than those for arbitrators. Thus, it is certainly possible that conflict disclosures provided by a mediator at the outset of the proceeding that were deemed to be sufficient for her service as mediator will no longer be regarded as sufficient if and when the mediator switches hats to assume the role of arbitrator.

The parties and their counsel should satisfy themselves that a mediator-turned arbitrator has disclosed in writing any circumstances currently known to the neutral that are likely to give rise to any justifiable doubts regarding her impartiality or independence, or any other facts that might raise questions about her ability to effectively perform the arbitral role following an unsuccessful mediation. A neutral appointed as a mediator who thereafter assumes the role of arbitrator must provide disclosures that are sufficient to conform not only to Model Standard II (“[a] mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality”) and Model Standard III (“[a] mediator shall avoid a conflict of interest during and after a mediation”), but also to Canon II of the Code of Ethics for Arbitrators in Commercial Disputes (“[a]n arbitrator should disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality”).

6. Minimizing Potential Risks by Limiting Use of Single-Neutral, Dual-Role Processes to Situations in Which Parties Jointly Request Neutral to Perform Dual Roles and Allowing Parties and Their Counsel to Educate Themselves About the Process and Make an Informed Decision

6.1       A decision to have a neutral change roles during the course of a proceeding should only be initiated by a joint request of the parties to the neutral.

6.2       While a neutral may believe that the use of an Arb-Med, Med Arb, or Arb-Med-Arb process would help the parties achieve a fair, efficient, and economical resolution of their dispute, the neutral should be very wary about proposing that the parties engage in such a process. If the process does not go well from a particular party’s perspective, that party could later claim that the messaging accompanying the neutral’s proposal effectively precluded it from fulfilling the expectation in Model Standard I that the parties will “com[e] to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Emphasis supplied.)

6.3      A request that a neutral perform dual roles in the same case should be made jointly by the parties to the neutral only after the parties have fully vetted the matter outside the presence of the neutral. Observing this practice would obviate any potential claim that the neutral exerted coercion or undue pressure upon the parties to agree to her proposal and would afford the parties’ respective decision-makers the time and space reasonably needed to reflect, deliberate, and decide.

Since Arb-Med and Arb-Med-Arb arrangements are typically negotiated during the course of an arbitration, such protocols tend to be negotiated “on the fly” sometimes without a meaningful hiatus between the mediation and arbitration phases of the case. The neutral should recognize that such circumstances may not afford the parties a sufficient opportunity to fully reflect upon the potential pitfalls and risks of engaging in such a process, let alone whether those risks outweigh the potential benefits. The neutral should satisfy herself that the parties and their counsel have been able to educate themselves about the processes and engage in informed decision making before the neutral proceeds to the next phase of the case.

7. Minimizing Potential Risks Through Process Options

7.1       Concerns about a mediator switching to an arbitral role during a case stem from ex parte contacts between mediators and parties occurring in private caucuses during the mediation phase. Accordingly, in considering a process that entails the neutral performing dual roles, the parties, their counsel, and the neutral should focus their consideration upon the “worst case scenario” -- what will happen if a complete settlement is not achieved during the mediation phase. If the mediation results in a complete  settlement, the arbitrator-turned-mediator is a hero. By facilitating a settlement, the neutral has at a minimum saved the parties significant time and expense. But, if the mediation does not produce a complete settlement and the neutral must assume the role of an arbitrator, proceed to hear and decide the case, and then enter an arbitration award, at least some of the participants may have second thoughts about the wisdom of having engaged in the process.

7.2       The process options discussed below are designed to (a) ameliorate some of the potential pitfalls and risks that are presented when  a neutral performs dual roles in the same case; and (b) satisfy the parties’ reasonable expectations in such a scenario. Not surprisingly, these risk-minimizing steps involve trade-offs that could potentially impair the effectiveness of the mediation process or jeopardize the potential for significant cost savings that may have motivated the parties’ desire to pivot from arbitration to mediation.

7.3       These process options should be carefully vetted to ensure that the parties have had the opportunity to craft a process that is fundamentally fair and that satisfies their mutual needs and expectations. The details matter. If the procedure appears one-sided or otherwise procedurally unfair, the parties are not likely to come away from the process feeling satisfied.

7.4       Among the process options to be considered by the parties and the neutral are the following:

7.4.1    Neutral prepares but does not issue an arbitration award until mediation phase is completed and fails to result in a complete settlement. The parties may wish to consider deferring mediation discussions until after the arbitral proceedings have been completed and the arbitration award has been written and executed. In this scenario, the arbitration award will only be issued if and when the mediation phase is completed without achieving a complete settlement of the dispute. For example, the signed award can be placed in a sealed envelope, only to be issued in the event that the ensuing mediation fails to fully resolve the dispute. This approach obviates the risks stemming from ex parte contacts between the neutral and the parties occurring during private caucuses and offers the advantage of arming the arbitrator-turned-mediator with a more complete understanding of the strengths and weaknesses of the parties’ positions by the time she assumes the task of mediating a settlement. However, this approach does not offer the benefits of achieving an earlier resolution of the parties’ dispute, including savings of costs and time.

7.4.2    Conduct all mediation discussions with all participants present, eliminating private caucusing from the mediation phase. This option obviates the possibility that the mediator-turned-arbitrator’s decision on the merits will be influenced by information she learned in circumstances where some participants were absent. However, eliminating private caucuses during which the neutral can speak candidly with each party deprives the neutral of an important tool for facilitating a settlement. Some mediators report that they are able to engage effectively with the parties in joint sessions and resolve disputes without conducting ex parte caucuses. Other mediators decline to engage in mediation without the opportunity to caucus with the parties individually.

7.4.3    Conduct private caucuses but require that information elicited by neutral during a caucus with one party be shared by the neutral with the other party. While this procedure would help maintain a level playing field, it would also have a chilling effect upon the parties’ candor with the neutral during the mediation phase, thereby jeopardizing the effectiveness of the mediation.

8. Minimizing Potential Risks through Opt-outs.

8.1       Requiring parties to confer regarding continued service of neutral after an  unsuccessful mediation phase. Alternatively, the parties may wish to provide that they will meet and confer outside the presence of the neutral after the conclusion of an unsuccessful mediation phase to determine whether the parties jointly agree that the neutral should serve as the arbitrator during the arbitration phase.

8.2       Requiring parties’ written consent to continued service of neutral after an unsuccessful mediation phase. The parties may wish to provide that an arbitrator who has acted as mediator may not then perform the role of arbitrator without the additional written consent of all parties given after an unsuccessful mediation phase has concluded. This option provides a party with an off ramp from a single-neutral dual-role process if that party is no longer convinced that the neutral could resume her arbitral duties following an unsuccessful mediation phase without being biased or otherwise influenced by information she learned during the mediation discussions.     

8.3       Post-mediation opt-out for neutral. The parties may also wish to provide that the neutral may opt out of serving as arbitrator following an unsuccessful mediation phase.

9. Importance of A Carefully Drafted Written Consent and Waiver

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9.1        Regardless of what specific steps are taken to minimize the potential pitfalls and  risks of a process in which the neutral performs dual roles, it is essential that full disclosure of those risks, and the parties’ decision to proceed with full knowledge of such risks, either be (a) memorialized in a writing executed by the parties, their counsel, and the neutral; or (b) stated on the record in the arbitration and expressly consented to on the record by the parties, their counsel, and the neutral.

9.2       A standard protocol for documenting the parties’ agreement to pursue a single-neutral, dual-role process would call for all participants to execute a written form of Stipulation, Consent, and Waiver containing a full explanation of its terms and conditions. The Stipulation, Consent, and Waiver would consist of a variety of explicit acknowledgments, including, for example, those set forth below in an Arb-Med or Arb-Med-Arb scenario:

9.2.1  With an arbitration hearing underway, the parties have requested a pause in the    arbitral proceedings to pursue mediation.

9.2.2    The parties have specifically requested that the arbitrator act as their mediator. If the mediation phase does not result in a complete settlement, the neutral will resume her role as the arbitrator (assuming that the arbitration has not been completed) and proceed to hear and decide the case and issue an award.

9.2.3    Optional: To be included if the parties and the neutral have agreed to utilize private caucuses. During the mediation phase, the neutral may meet privately with each party and its counsel and may receive confidential information that the absent party believes to be false. The parties understand that in an arbitration hearing, it would be improper for an arbitrator to receive such information in the absence of the other party. The parties waive their right to have the arbitrator’s decision be based solely upon information received by the arbitrator in the presence of both parties. The parties have been informed of the disadvantages of having the same neutral serve as arbitrator and mediator, including that the parties may reveal to the neutral during the mediation phase their respective settlement positions and their views of the strengths and weaknesses of their positions on the merits. The parties understand that, if at any point during or following the mediation phase the neutral no longer feels able to decide the case impartially, the neutral may step down.

9.2.4  Optional: To be included if the parties and the neutral have agreed not to utilize private caucuses. During the mediation phase, the neutral shall not meet privately with any party or its counsel. Ex parte communications between any party or any counsel, on the one hand, and the neutral, on the other hand, are prohibited.

9.2.5    Optional: Following an unsuccessful mediation phase, the neutral may not serve as the arbitrator of the dispute without the parties’ additional written consent.

9.2.6    Optional: The neutral may opt out of serving as the arbitrator of the dispute following an unsuccessful mediation phase.

9.2.7    The parties have had an opportunity to consult with independent counsel of their choice concerning the single-neutral, dual-role dispute resolution process that they have decided to use.                

9.2.8    The parties’ counsel have fully informed their clients of the potential risks associated with the single-neutral dual-role dispute resolution process.

9.2.9  Neither the institutional provider, nor the neutral, shall be liable for any act or omission arising from the neutral’s performance of dual roles.

9.2.10   No challenge to the arbitration award can be based upon the arbitrator’s dual service.

Conclusion

Due to the challenges presented by single-neutral, dual-role processes, institutional provider rules have understandably been cautious about administering matters involving such procedures. Not only has the neutral’s authority to switch hats during the course of a proceeding been explicitly conditioned upon the agreement of the parties, but the language of the provider rules recognizing that authority has generally stopped short of endorsing the use of such processes.[8]

Moreover, some institutional provider messaging has been more explicit in its cautionary language:

A clause may provide first for mediation under the AAA’s mediation procedures. If the mediation is unsuccessful, the mediator could be authorized to resolve the dispute under the AAA’s arbitration rules. This process is sometimes referred to as ‘Med-Arb.’ Except in unusual circumstances, a procedure whereby the same individual who has been serving as a mediator becomes an arbitrator when the mediation fails is not recommended, because it could inhibit the candor which should characterize the mediation process  and/or could it convey evidence, legal points or settlement positions ex parte, improperly influencing the arbitrator. (Emphasis supplied.)[9]

There are signs, however, that the providers’ attitude toward single-neutral, dual-role processes is changing. The cautionary language of the AAA Guide quoted above has been omitted from the current version of the Guide. There are neutrals on the AAA roster, including this author, who are willing and able to engage in a party-requested, single-neutral, dual-role process, and the JAMS website identifies those neutrals who are willing to participate in such processes. Moreover, the AAA is planning to offer advanced training next year to establish a vetted, specialized panel of neutrals qualified for this role.

In addition, CPR’s Mediation Procedure, as revised and effective July 1, 2025, contains an entire section entitled “Mediator Switching Roles,” stating:

If, following the mediation, the dispute is to proceed, or return, to arbitration, subject to any applicable law, the mediator may consent to serve as the arbitrator or one of the arbitrators, if: and only if (i) all parties jointly request in writing that the mediator assume an arbitral role; (ii) the mediator is competent to serve as an arbitrator by training and experience, (iii) the mediator discusses with the parties the risks associated with sitting as arbitrator after serving as a mediator; (iv) the parties provide, in writing, informed consent in light of such discussion of such risks and waiver of any challenge to the mediator’s assumption of the arbitral role on the basis of the mediator’s previous role and (v) the mediator believes the parties are sufficiently sophisticated so as to understand the risks associated with the switch.

Single-neutral, dual-role procedures are not for the faint of heart, but they can be highly effective and rewarding provided that the neutral and the parties are diligent and thoughtful about documenting and using them. So, the next time parties to an arbitration for which you are serving as an arbitrator request that you switch hats to serve as their mediator, perhaps, with the assistance of the best practices proposed in this article, you will respond, “[l]et’s discuss that possibility” instead of rejecting the idea out of hand.

Appendix: Arb-Med-Arb Stipulation Consent and Waiver Form

[INSERT NAME OF ADR PROVIDER]

Commercial Arbitration Tribunal

STIPULATION, CONSENT, AND WAIVER

The parties (each a “Party” and, collectively, the “Parties”) to the above-referenced arbitration proceeding (“Arbitration”), with the advice and consent of their undersigned counsel, hereby acknowledge, agree, and stipulate as follows.

From ______ to _______, in his/her capacity as the arbitrator duly appointed by the [Insert Name of ADR Provider] to hear and adjudicate the disputes that are the subject of the Arbitration (“Disputes”), [Insert Name of Neutral] (“NEUTRAL”) has acted upon pre-hearing matters in which (and, if applicable, conducted evidentiary hearings at which) all Parties were represented by their undersigned counsel. The hearings in this Arbitration have not been closed, and an arbitration award has not been issued. The Parties have requested, at this stage of the Arbitration, that the [Insert Name of ADR Provider], and specifically NEUTRAL, assist them in attempting to reach a settlement of the Disputes by acting as the mediator of the Disputes. Subject to the Parties’ acknowledgment and agreement to the terms and conditions set forth below, NEUTRAL has agreed to serve as the mediator of the Disputes at the request of the Parties.

The Parties acknowledge and agree that a mediator is an impartial intermediary who assists parties in attempting to reach a settlement, that a mediator cannot impose a settlement upon parties, and that the mediator assists parties in achieving their own settlement.

The Parties further acknowledge and agree that in serving as the mediator of the Disputes, NEUTRAL shall act as a neutral facilitator, and not an attorney or advocate for any Party. The Parties also acknowledge and agree that, in his/her capacity as the mediator, NEUTRAL will not render legal advice to any Party during the course of the mediation discussions, and that no attorney-client relationship will be created between NEUTRAL and any Party. The Parties further acknowledge and agree that if the mediation discussions do not result in a complete settlement of the Disputes, NEUTRAL shall resume his/her role as the arbitrator of the Disputes, decide the claims and issues remaining in the Arbitration, and issue a binding and enforceable arbitration award.

The Parties acknowledge and agree that, during the mediation discussions, NEUTRAL may meet privately with each Party.[10] The Parties further acknowledge and agree that during private caucuses with NEUTRAL, certain confidential information may be communicated by a Party to NEUTRAL on an ex parte basis that will not be shared with, and may be disputed by, the other Parties. In an arbitration proceeding, the arbitrator decides the case based solely upon evidence received in open session with all parties present. It would be improper for an arbitrator to receive information from one party in the absence of the other parties. For this reason, a dispute resolution process in which the same person serves as both the arbitrator and the mediator may proceed only with the express, informed written consent of all parties. In addition, the Parties must, and do hereby, retain the discretion at any time to appoint another person to serve as the mediator of the Disputes, in which case NEUTRAL will thereafter serve only as the arbitrator of the Disputes.

If the mediation discussions are unsuccessful and it becomes necessary for NEUTRAL to resume his/her role as the arbitrator of the Disputes, decide the case, and issue a binding and enforceable arbitration award, NEUTRAL shall use his/her best efforts to decide the case based solely upon evidence received in open session during the arbitration proceedings with all Parties present; provided, however, that the Parties acknowledge and agree that information communicated by a party to NEUTRAL in private caucuses during the mediation discussions, which the absent Parties may believe to be false, may unconsciously influence NEUTRAL’s decision. Therefore, for purposes of this Stipulation, Consent and Waiver, the Parties expressly waive and relinquish their rights to have the arbitration award based solely upon information communicated to NEUTRAL received in open session during the arbitration proceedings in the presence of all Parties.

The Parties acknowledge having been informed of the potential disadvantages of a dispute resolution process in which the same person serves as both the arbitrator and the mediator. Among other things, the Parties specifically acknowledge that (a) during private caucuses with NEUTRAL, the Parties may disclose to NEUTRAL various types of confidential information on an ex parte basis, including, without limitation, (i) their respective settlement positions, (ii) their views of the strengths and weaknesses of their legal positions, (iii) facts and law that potentially could be damaging to their legal positions, and (iv) other matters that would not be disclosed to a person serving only as the arbitrator of the Disputes; and (b) if the Disputes are not fully resolved as a result of the mediation discussions, and it becomes necessary for NEUTRAL to resume his/her role as the arbitrator of the Disputes, decide the case, and issue a binding and enforceable arbitration award, information disclosed by the Parties on an ex parte basis in private caucuses during the mediation discussions with NEUTRAL could unconsciously influence NEUTRAL’s decision in his/her capacity as the arbitrator of the Disputes. Notwithstanding these factors, the Parties desire NEUTRAL to act in the dual capacities of arbitrator and mediator in this proceeding.

The Parties acknowledge and agree that neither the [Insert Name of ADR Provider] nor NEUTRAL shall incur any liability to any Party for any act or omission arising out of or in connection with NEUTRAL’s service as the arbitrator and/or mediator of the Disputes. No claim or challenge to the Arbitration, or to an eventual arbitration award, shall be made by any Party based upon the fact that NEUTRAL served as both the arbitrator and mediator of the Disputes, or based upon NEUTRAL’s receipt of information disclosed by the Parties on an ex parte basis in private caucuses during mediation discussions and not shared with the absent Parties.

The Parties expressly waive and relinquish, to the maximum extent permitted by applicable law, (a) any and all objections to NEUTRAL serving as both the arbitrator and mediator of the Disputes; (b) any and all objections to an eventual arbitration award issued by NEUTRAL based upon the fact that he/she also served as the mediator of the Disputes, and his/her receipt of information disclosed on an ex parte basis in private caucuses during mediation discussions and not shared with the absent Parties; (c) any claim of conflict of interest, impropriety, and/or prejudice purporting to arise from the fact that NEUTRAL acted as both the arbitrator and mediator of the Disputes; and (d) any right to challenge the arbitration award based upon the fact that NEUTRAL served in these dual roles.

The Parties acknowledge and agree that NEUTRAL’s service as the mediator of the Disputes under the circumstances described in this Stipulation, Consent, and Waiver shall not provide a basis for seeking his/her disqualification as the arbitrator of the Disputes if the mediation discussions are unsuccessful, and the Parties expressly waive and relinquish the right to do so; provided, however, that NEUTRAL may decide not to continue to act as the arbitrator of the Disputes if the mediation discussions are unsuccessful and NEUTRAL determines, in the exercise of his/her sole discretion, that NEUTRAL can no longer fairly and impartially act as the arbitrator of the Disputes.[11] 

The Parties further acknowledge and agree that they have had an opportunity to discuss the dispute resolution process discussed in this Stipulation, Consent, and Waiver with independent counsel of their choice. The Parties also acknowledge and agree that they have been fully informed of the potentially adverse consequences of a dispute resolution process in which the same person serves as both the arbitrator and the mediator, and that they have nevertheless decided to utilize such process with NEUTRAL serving in these dual roles.

The attorneys whose signatures appear below attest that they have fully informed their clients of the risks of the dispute resolution process described in this Stipulation, Consent, and Waiver.

Dated:  __________________

Neutral: ____________________