Ethics in Hybrid ADR Models

As alternative dispute resolution continues to evolve, so do the formats that parties and counsel use to resolve cases. In recent years, “hybrid” ADR models like med-arb, arb-med, and evaluative mediation have gained traction—offering streamlined processes that combine elements of both mediation and arbitration.

These models can deliver significant efficiencies in complex, high-stakes disputes, particularly when parties want finality without a courtroom. But with this flexibility comes a unique set of ethical challenges for both neutrals and advocates.

Understanding those challenges—and how to navigate them—is key to preserving party trust and maintaining the integrity of the process.

What Is a Hybrid ADR Model?

A hybrid ADR model combines two distinct dispute resolution methods—typically mediation and arbitration—either simultaneously or sequentially.

Common formats include:

• Med-Arb: The neutral begins as a mediator. If mediation fails, they transition into the role of arbitrator and issue a binding decision.

• Arb-Med: The neutral begins as an arbitrator but pauses the process to mediate before issuing a final award.

• Evaluative Mediation: The mediator offers opinions about likely legal outcomes or case value to help parties assess risk and reach agreement.

While these models offer flexibility and speed, they also blur traditional role boundaries—which can trigger ethical concerns if not managed carefully.

The Ethical Tension: Neutrality vs. Dual Roles

The core ethical concern in hybrid ADR is role confusion and potential bias. When a neutral shifts from mediator (facilitator) to arbitrator (decision-maker), parties may worry:

• Will the neutral base their ruling on confidential information from mediation?

• Can the neutral remain impartial after seeing party behavior behind closed doors?

• Will candid participation in mediation later be used against them?

These concerns are valid—and they must be addressed before the process begins.

Best Practices for Ethical Hybrid ADR

To navigate these ethical complexities, experienced neutrals and counsel should work together to set clear ground rules upfront. Best practices include:

1. Informed ConsentAll parties must understand the process fully—including what role the neutral will play at each stage, and how confidential information will (or won’t) be used. Consent should be explicit and documented.

2. Clear Procedural AgreementsOutline the scope, timing, and triggers for any role shifts. For example:

• Will the mediator/arbitrator be permitted to reference mediation discussions if arbitration follows?

• Will the parties waive confidentiality protections?

• Are “sealed envelopes” allowed to separate what is seen in each phase?

3. Optional Recusal ClausesSome hybrid agreements allow either party to object to the neutral continuing as arbitrator if the mediation fails—protecting trust in the arbitration’s impartiality.

4. Alignment with Institutional RulesWhen using AAA, JAMS, or another body, be sure the hybrid process aligns with their ethics rules. Many organizations have specific guidance on med-arb procedures.

When Hybrid ADR Works Best

Hybrid models are especially useful when:

• Parties want a single process to resolve the dispute in one sitting

• There are tight timelines or budgetary constraints

• The dispute involves ongoing business relationships or confidentiality concerns

• There is mutual trust in the neutral’s judgment and fairness

But these benefits only materialize when ethical guardrails are firmly in place.

Hybrid ADR models can be powerful tools—efficient, adaptive, and outcome-driven. But they require more than procedural savvy. They require ethical clarity and deep trust in the neutral.

At Schreiber ADR, I work with parties to structure hybrid processes that maximize flexibility without compromising fairness. When done right, these models offer the best of both worlds—resolution and finality, with integrity at the core.