What should parties understand before agreeing to a hybrid med-arb process?

One of the most important differences between mediation and arbitration concerns confidentiality and disclosure.
An arbitrator must base the decision on information properly available to all parties in the arbitration proceeding. For that reason, when the same neutral transitions from mediator to arbitrator, the parties need to understand in advance what mediation information may carry forward into the arbitration and what information remains confidential.
In the hybrid proceedings I conduct, the parties acknowledge the applicable mediation-confidentiality waiver before moving forward with arbitration. Information presented during a general mediation session may then be available for purposes of the arbitration as agreed.
Information disclosed only during a private caucus presents a different issue. If one party provides new factual information privately during mediation, that information cannot influence the subsequent arbitration decision unless it is appropriately disclosed to the other side.
Strategic Information Can Present Difficult Choices
The distinction can become particularly important when a party possesses information it would prefer not to disclose.
For example, one party may believe there is a defect in the opposing party’s pleadings. Disclosing the issue could allow the other party to correct it before trial.
Keeping it confidential, however, means the arbitrator cannot consider that information when reaching the arbitration decision because it has not been properly disclosed to the opposing party.
Attorneys therefore need to consider carefully what information they want the neutral to consider in arbitration and what information they wish to preserve for litigation strategy.