This is the final installment in Disputing‘s series focused on sections of a research paper entitled, “Arbitration in Evolution: Current Practices and Perspectives of Experienced Arbitrators,” by Pepperdine University School of Law Professor Thomas Stipanowich and Straus Institute for Dispute Resolution Research Fellow Zachary Ulrich. The article fully analyzes the data obtained in a groundbreaking 2013 survey regarding commercial arbitration practice in U.S. and international disputes.

This installment will consider survey “respondents’ experiences playing other third-party roles in dispute resolution, including rendering non-binding or advisory arbitration decisions, engaging in early neutral evaluation or early case assessment, and serving as a mediator,” and examine “perceptions of the efforts of institutional arbitration service providers to improve or maintain the quality of arbitration services and user satisfaction with arbitration.” It will also explore “respondents’ expectations regarding trends potentially affecting arbitration practice,” discuss “perceived differences between U.S. and international arbitration practice,” and offer “respondents’ forecasts of the usage of various ADR processes in the coming decade.”

In this section of the paper, the authors first addressed “experienced arbitrators’ activities as dispute resolution professionals acting in various capacities.” According to the survey results, about one-fourth of respondents “rendered an arbitration award that the parties had previously agreed would be non-binding or advisory.” In addition, more than 42 percent stated they had “participated as an ‘early neutral evaluator’ of a case, or made a formal assessment or evaluation of the likely outcome of a case, as part of an early case assessment.” Nearly 58 percent of experienced arbitrators served as a mediator “at least occasionally,” while “three out of five (60.1%) respondents to the CCA/Straus Institute Survey believed the growth of ‘mediation and other conflict management approaches’ was having a significant or moderate impact on their arbitration practice.” About 83 percent of survey respondents “expected the use of mediation to increase in the future.”

Next, the authors addressed so-called Med-Arb:

There has long been a debate over whether mediators should assume the role of arbitrator in the event mediation does not resolve all of the issues in dispute, or whether a sitting arbitrator should accept the parties’ invitation to put on a mediator’s hat. In the United States and many other places, the traditional view has been that although dual-role “med-arb” may offer perceived benefits from the standpoint of increased efficiency (since a single individual is conducting the entire proceeding) and greater impetus to settle (since the mediator carries a “big stick” as the final adjudicator if negotiations fail), it is usually inadvisable since the roles of mediator and arbitrator “are very different in focus [and] in some respects incompatible.” However, there is evidence that dispute resolution professionals sometimes play multiple roles in helping to resolve a dispute.

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