Just before Thanksgiving, Irvine, Calif.-based ADR provider JAMS released a proposed policy for the appointment of a “Mediator-in-Reserve” in international arbitrations.
Requesting comments from the public, JAMS notes in its Nov. 23 release that the mediator-in-reserve is a new concept not yet used in international arbitrations. The comment period is open until Jan. 1.
In the release, JAMS explains that the mediator-in-reserve will be used only if both parties agree to change the ADR method to mediation from arbitration.
Under JAMS’ policy, the international arbitration parties would select a mediator at the start of arbitration. Additionally, "[t]he parties will not be bound to use the Mediator-in-Reserve and may, at any time, mutually select another mediator to assist in their settlement discussions."
According to the proposal, “[t]he mediator so selected . . . shall be available to the parties to assist in settlement negotiations in the event that, at any time in the course of the arbitration proceedings, the parties all agree to enlist the mediator’s assistance.”
The parties will not be charged for the mediator-in-reserve appointment. They will be charged mediator fees only if the mediator is used.
The JAMS release suggests a mediation substitution, but the proposed policy would allow arbitration processes to continue while the parties mediate if they choose. The arbitrators "shall have no knowledge of . . . whether the parties may have engaged [the mediator-in-reserve's] services at any point in the arbitration proceedings."
In addition, the proposed policy also notes that the arbitrators will not know the identity of the parties' mediator-in-reserve preselection.
The press release and the text of the proposal, as well as the comment contact information, is available here.
--Erica Jaffe, CPR Intern