Originally from The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45

In national court systems, there has for some time been a trend of encouraging early settlement of cases.  This is largely motivated by resource allocation considerations: with shrinking national justice budgets, it makes sense for courts to reduce their dockets by taking firm measures to promote settlement of disputes at an early stage. In a system of private justice, such as arbitration, such concerns are not present, but other factors drive consideration of ways in which arbitrators can assist the parties to resolve their dispute without a binding determination: in particular, the fact that arbitration sells itself as a more “commercial” alternative to the court process. Further, anecdotal evidence and empirical research suggest that a significant proportion of arbitrations settle.  Against that background, it is perhaps unsurprising that there has been a focus for some time on what arbitrators can do to assist in the process of amicable settlement of the disputes which come before them.

The question of whether an arbitrator’s role goes beyond merely deciding the present dispute and, if so, how far it extends into the domain of assisting the parties to settle their disputes, is one which has concerned practitioners for some time. In this paper, I examine the extent to which it is desirable and practical for arbitrators to seek to facilitate settlement through the provision of preliminary views and through acting as mediator, and finally identify some other procedural techniques through which arbitrators can assist the parties in bringing about a compromise to their dispute.