An Empirical Study of Arbitrators Acting as Mediators in China

Summary

This article reports on empirical research into the Chinese practice of arbitrators taking on a mediating role within the same proceeding (arb-med). It combines in-depth interviews with twenty Chinese arbitrators conducted in 2007 with an online survey of arbitrators at CIETAC and the Beijing Arbitration Commission carried out in 2011-2012. The findings indicate that most respondents regard settlement facilitation as a legitimate part of the arbitrator's function, that mediation is proposed in the large majority of cases, and that settlement rates vary between institutions. The study also describes when settlement attempts occur, the mix of evaluative and facilitative techniques, the frequent use of private caucuses, and the safeguards — such as party consent and confidentiality — that accompany the practice, and suggests lessons for other jurisdictions.