Originally from Dispute Resolution Journal

In England, from the Dark Ages to the end of the Middle Ages, arbitration was a conciliatory process exhibiting most of the characteristics of conciliatory processes. Its function-to reconcile rather than to judge-was embodied in the medieval institution of the "loveday." Loveday arbitrations were true alternatives to litigation (lawdays); the process and solution were as different from those in litigation as their function. Such arbitrations were essentially forms of mediation.

From the late Middle Ages through the early modern period, the process came under increasing pressure. An increasingly adjudicative society was reshaping arbitration-a conciliatory process-to suit its needs. Potential abuses of the process and changing notions of community, competition and individualism undermined the legitimacy of loveday arbitration. In theory, litigation had more legitimacy, although the courts were disfavored in practice. Looking for a substitute for litigation, disputants began using arbitration in imitation of litigation, thus giving rise to a pseudo-adjudicative form of arbitration. As such, it was still a conciliatory process, but one which could exhibit most of the characteristics of adjudicative processes. In addition, the use of penal bonds to coerce compliance with the submission and award brought such arbitrations before the scrutiny of the courts and necessitated the development of arbitration law.