Some judges and some arbitrators get actively involved in settlement negotiations. Some arbitrators are particularly adept at mediation, and are able to stimulate settlement before cases are heard. The same may be said of some judges. In arbitration agreements, the parties may determine the extent to which the arbitrator will attempt to mediate the dispute. Conduct of the Trial on the Merits.
Courts typically use formal rules of evidence.
Although modern trends in the law of evidence is to allow most evidence to be introduced, a substantial body of law exists which requires certain formalities in the presentation of evidence. In most cases, witnesses will be required to come to the hearing in order to identify documents so that they may be introduced, hearsay statements will not be introduced, and lawyers will be constrained in the conduct of their examinations to comport with the rigorous requirements imposed by all rules of evidence. A different situation is presented in arbitration. Questioning is informal and most arbitrators will tolerate a few objections from opposing counsel. Most arbitrators are sophisticated enough to understand that a question is leading, or that aa question calls for hearsay evidence, and they are apt to permit such questions, allowing them to affect the weight which the arbitrator will give to the testimony.