The Advantages,Risks and Its Responses of the Identity Concurrence of Mediator and Arbitrator
With the development of civil and commercial dispute resolution mechanisms,it is more and more com-mon for the parties to entrust the same natural person to act as mediator and arbitrator in one dispute.In this re-gard,different countries(regions)and dispute resolution service institutions hold different attitudes and keep dif-ferent rules and regulations.From the perspective of economics,the identity concurrence of mediator and arbitrator has both supply-side causes and demand-side causes.On the one hand,jointed med-arbs and embedded med-arbs provide the technical site.On the other hand,the parties aim,on the basis of the fundamental advantages of the med-arbs,to further improve the efficiency of dispute resolution,meet specific cultural preferences and ensure the stability of quality of dispute resolution.However,in the situation where the identities of mediator and arbitrator are shared by the same person,once the mediation fails and the arbitration is initiated afterwards,the radical conflict between the two procedures will transform into the neutrals'internal conflict of roles.The identity conflict of the neutrals may not only destroy the normative of mediation procedures,such as violating the principle of mediation confidentiality and derogating the quality and effectiveness of the parties'autonomy,but also destroy the normative of arbitration procedures,such as causing the apparent lack of the arbitrators'neutrality and violating the principle of arbitration debate.In addition,such identity concurrence may adversely affect the effectiveness of arbitral a-wards,owing to systematic differences between the examination criteria of the mediators'conduct and that of arbi-trators'conduct,or to the case in which the neutrals mediate the disputes beyond the scope of the arbitration agree-ments.In order to deal with these legal risks,the relevant legislators,industry organizations and dispute resolution service institutes have put forward a number of specific countermeasures,aiming at opening the institutional door for the exchange of identity between arbitrators and mediators and ensuring that the neutrals conform to the principles of due process,fair judgment and mediation confidentiality.Such measures include but are not limited to generally re-quiring parties to appoint different neutrals,requiring parties to give informed consent,prohibiting private talks in mediation,allowing parties to re-elect another neutral before arbitration,requiring list and exclude confidential in-formation,and excluding the right to challenge arbitration based on mediation.At present,China's legal provisions on med-arbs are limited to some provisions of the Arbitration Law,involving the mediation conducted by the arbitral tribunal and the conversion from mediation to arbitration.However,there is no word on whether and how the media-tor can subsequently serve as the arbitrator for the same dispute.On this basis,the Arbitration Law(Revised Opin-ion Draft)confirms that the parties can start a mediation parallelly with the arbitration,without specifying the mat-ter of identity exchange.At the same time,most ADR institutions in China do not prohibit the identity exchange,but rarely provide the conduct code for the same neutral,and there is no consistently repeated practice in the indus-try so far.To improve this,the legislation is suggested to respect the principle of the parties'autonomy,clearly en-title the parties to choose the same neutral in med-arbs,and make necessary tips on the legal advantages and disad-vantages.Additionally,the detailed conduct code of the same neutral would better be laid down by the ADR service providers and the parties.At present,China's legislators and ADR service providers have noticed these issues and tried to solve them partially,include asking the parties to entrust different neutrals as a general rule,excluding the confidential mediation communication in arbitration,allowing the parties to re-elect the neutral,etc..These rules strike a good balance between the certainty and flexibility of the med-arbs,which can be used for reference more broadly.
万方数据
维普
