Navigating dispute resolution during arbitration: Should the judiciary intercede to aid agreement?
International arbitration is evolving to incorporate more active participation from arbitrators in facilitating settlement discussions between parties. This shift aims to save time and costs while maintaining neutrality, as highlighted in the guidance published by the ICC Commission on Arbitration and ADR in 2023.
The rules of major arbitral institutions vary in their provisions empowering arbitrators to actively facilitate settlement. For instance, the ICC Arbitration Rules (2021) give arbitrators the discretion to encourage parties to consider settlement, but do not mandate specific techniques. On the other hand, the ACICA Arbitration Rules (2021) require the tribunal to hold a preliminary meeting to discuss settlement possibilities, including mediation, as soon as practicable after being constituted.
The HKIAC Arbitration Rules (2024) allow the tribunal to suspend the arbitration proceedings if the parties wish to pursue other means of settling their dispute. Similarly, the SIAC Arbitration Rules (2025) empower the tribunal to consult with parties on the potential for settlement at the first case management conference and to make directions, including suspending proceedings, to enable such settlement methods.
In practice, techniques such as early case management conferences, mid-stream or "Kaplan" hearings, and suspension of proceedings are commonly used to foster settlement discussions. For example, a "Kaplan hearing" can help the tribunal to craft more focused procedural orders and the parties to give more focused submissions during the balance of the arbitration.
The trend towards more active tribunal facilitation of settlement is reflected in institutions like ACICA, HKIAC, and SIAC, which embed explicit procedural provisions to support this, while the LCIA Arbitration Rules (2020) do not contain any specific provision empowering tribunals to actively facilitate or raise settlement discussions during arbitration.
It is important to note that party consent remains at the heart of the relevant techniques for encouraging settlement in arbitration. Any settlement conference chaired by an arbitrator should be subject to "settlement privilege," meaning the tribunal could not refer to or rely on those discussions when making an award.
Tribunals are also increasingly comfortable in guiding parties towards considering settlement options. For instance, they can give their "preliminary views" to the parties, which is non-binding and can help the parties to realistically assess their prospects. However, tribunals are generally reluctant to set down a mediation window unless both parties agree.
Incorporating mediation into the arbitral process can ensure that the parties will have a dedicated opportunity to explore amicable resolution at a moment when the dispute should be ripe for settlement. This evolution in international arbitration reflects a growing recognition of the benefits of timely settlement and the ability of arbitrators to facilitate this process without compromising neutrality, provided it is done transparently and consensually.
References: [1] ACICA Arbitration Rules (2021) [2] ICC Arbitration Rules (2021) [2] HKIAC Arbitration Rules (2024) [1] SIAC Arbitration Rules (2025) [2] LCIA Arbitration Rules (2020)
Technology is playing an increasingly important role in today's lifestyle, as more organizations are integrating tech solutions into their arbitration processes. For instance, some institutions like SIAC (2025) employ electronic case management systems, enhancing efficiency and accessibility. On the other hand, the passion for sports often extends beyond the field, as arbitrators may employ sports terminology during settlement discussions, fostering a collaborative and competitive atmosphere that mirrors the dynamics of a sports team.
