Neutrality of Dispute Resolvers in International Commercial Dispute Resolution - WAMR 2004 Vol. 15, No. 9
Originially from: World Arbitration and Mediation Review (WAMR)
Neutrality of Dispute Resolvers in International Commercial Dispute
Harry L. Arkin, FCIArb, Chartered Arbitrator
[Remarks delivered at the McGill Law Faculty in Montreal,
Quebec, Canada on July 19, 2004.]
The first issue is, does neutrality exist?
That issue can be resolved only if neutrality is defined in the
context of a mediator, arbitrator, or even a judge. Excluding judicial
neutrality, a brief discussion of the concept and efforts to find neutrality in
mediators and arbitrators must also set aside the general cultural and legal
differences that exist in different national settings which would affect a
definition of neutrality. Personally, I have never necessarily believed that
justice (a philosophical, not a legal concept) with her eyes blindfolded was
or is a desirable concept—without eyes open to reality, justice is truly
blind. The same considerations affect any definition of neutrality.
What attributes do we seek, which thus might, in a mediator or
arbitrator, define “neutrality.” I propose they would primarily include, but
not be limited to:
• Equal treatment of parties.
Without at least these attributes (and they are not an exhaustive list), an
arbitrator or mediator cannot be a neutral.
The key to neutrality begins with knowledge, the knowledge and
experience to know what is required to be an effective decision-maker.
The neutral should be aware of life, professional duties, and have
considerable experience in arbitration and mediation.
How do you know their qualifications, and, thus, the potential of a
mediator or arbitrator for neutrality? There are many sources. The
Martindale-Hubbell International Dispute Resolution Directory;
biographies supplied by the arbitration institutions of those who are