An Empirical Study of Arbitrators Acting as Mediators in China

15 CARDOZO J. OF CONFLICT RESOLUTION, pp. 777-811.

36 Pages Posted: 16 Apr 2014

See all articles by Kun Fan

Kun Fan

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre; UNSW Law and Justice

Date Written: April 16, 2014

Abstract

While there are ongoing the debates on the appropriateness of arbitrators acting as mediators in a pending arbitration (this process is often described as ‘arb-med’), such practice seems to work well in China. In this respect, the Chinese model may be useful in contributing to the practice in other jurisdictions. How is the role of arbitrators perceived in China? How do Chinese arbitrators usually promote settlement? Could we generalize some good practice of arb-med based on the Chinese experience? Our perceptions about the conduct of arbitrators are often driven by anecdotes. This is partly because of the confidential nature of arbitration proceedings. The problem with anecdotes is that it is difficult to evaluate whether the event or practice described is ‘typical or atypical, frequent or infrequent, ordinary or extreme, as common as a rabbit or as rare as a rhinoceros’ (DRAHOZAL, 2003). More systematic research is needed by supplementing anecdotes with empirical studies.

Based on the findings in a series of interviews with experienced Chinese arbitrators conducted during a research trip with Professor Kaufmann-Kohler in March and April 2007, the author conducted a further survey between November 2011 and April 2012, in order to examine the Chinese arbitrators’ general attitudes on arb-med, how the process is typically conducted, and the common techniques adopted in facilitating settlement. At a time when arbitration has become too costly and too slow, these research findings may generalize some good practice on the effective use of arb-med based on the Chinese experience, and this may improve the administration of justice.

Section I of the article reviews relevant literature on the general attitudes of arbitrators in settlement facilitation. Section II defines the scope of the current study and describes the empirical methodology. Section III analyses the results of empirical research and gives a detailed description of the attitudes and practice of arb-med in China. Section VI discusses further implications of the Chinese experience on the practice in other jurisdictions. Part V concludes.

Keywords: med-arb, arb-med, settlement facilitation, administration of justice

JEL Classification: K00, K10, K20, K33, K40, K41, K45

Suggested Citation

Fan, Kun, An Empirical Study of Arbitrators Acting as Mediators in China (April 16, 2014). 15 CARDOZO J. OF CONFLICT RESOLUTION, pp. 777-811. , Available at SSRN: https://ssrn.com/abstract=2425506

Kun Fan (Contact Author)

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre ( email )

UNSW Law
Sydney, NSW 2052
Australia

UNSW Law and Justice ( email )

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