Ethics in Hybrid ADR Models: Navigating the Boundaries

As Alternative Dispute Resolution (ADR) evolves, hybrid models like Med-Arb (mediation followed by arbitration) and Arb-Med (arbitration paused for mediation) have gained popularity. These approaches offer efficiency and flexibility—but they also raise serious ethical considerations, particularly when one neutral shifts between roles.

1. Preserving Neutrality

The greatest challenge in hybrid ADR is ensuring that the neutral remains impartial. In mediation, parties often share confidential information they would never disclose in arbitration. If the mediator later becomes the arbitrator, can they truly “un-hear” sensitive disclosures? Maintaining fairness requires careful planning and informed party consent.

2. Informed Consent and Transparency

At the outset, it is critical to explain the hybrid process in plain terms. Parties must understand the differences between mediation and arbitration, the potential risks of role-switching, and how confidentiality will be protected. Written agreements outlining these boundaries help avoid misunderstandings later.

3. Clear Boundaries on Confidentiality

To protect the integrity of the process, neutrals should set explicit rules on what information can carry over between roles. Some models allow “firewall” structures where one neutral mediates, and another arbitrates, eliminating the risk of compromised confidentiality.

4. Avoiding the Perception of Bias

Even the appearance of bias can undermine the legitimacy of ADR. If one party believes their confidential disclosures swayed the neutral, trust in the process evaporates. Building safeguards—such as limiting ex parte discussions and documenting role transitions—preserves credibility.

5. Best Practice: Tailor the Process

Hybrid ADR is not one-size-fits-all. Parties and counsel should tailor the approach to the dispute’s complexity, the relationship between parties, and the desired outcome. Thoughtful customization ensures efficiency without sacrificing fairness.

Hybrid ADR models hold tremendous promise—but without strict ethical guardrails, they risk eroding the very trust that makes mediation and arbitration effective. By prioritizing neutrality, transparency, and informed consent, mediators and arbitrators can deliver both efficiency and fairness in hybrid proceedings.