A Psychological Perspective on the Facilitation of Settlement in International Arbitration - Examining the CEDR Rules
Journal of International Dispute Settlement, Forthcoming
16 Pages Posted: 13 Jun 2011
Date Written: June 13, 2011
This article explores the still-controversial role of arbitrators in settlement facilitation and whether the professional guidelines put forward supposedly to assist arbitrators in this role take into account the psychological factors at play. Do “best practice” guidelines address the “right” factors? Particular attention will be had for these explorations to the Rules of the Centre for Effective Dispute Resolution (CEDR) for the Facilitation of Settlement in International Arbitration.
We identify that the Rules and Recommendations, whilst they provide a number of discrete pointers, leave unaddressed significant areas of the process of settlement facilitation, on which they provide no guidance. We refer to these areas as ‘gaps’ in the Rules. We observe that these gaps pertain chiefly to the tribunal’s own readiness in approaching and taking control of the settlement facilitation process, both in terms of mindset and techniques.
We further observe that the gaps may be an inevitable consequence of (i) the current lack of meaningful insight into the psychological triggers applicable to arbitration; and (ii) the way in which the Rules and Recommendations were devised – namely by a group of arbitration practitioners.
Points on which the Rules are silent include: (a) The timing and trigger of the settlement facilitation process; (b) The consensus-building exercise carried out by the tribunal about the very decision to facilitate settlement; (c) The authority of the arbitral tribunal; (d) The allocation of roles between the arbitrators inter se in the settlement process.
Keywords: settlement facilitation, international arbitration, psychology, intercultural communication, cognitive social science, human cognition
JEL Classification: K33, K41, Z00
Suggested Citation: Suggested Citation