A skilled mediator can play a critical role in bringing about agreement between adversaries, even if bilateral negotiations did not bring them within reach of agreement. If the Tribunal believes that mediation may result in a settlement, the Tribunal is encouraged to urge the parties to engage in such a process and to assist in arranging the same. As a rule, arbitration proceedings should be suspended while mediation is in progress, at least for a limited time. It may well be desirable for senior executives to play an active role in a mediation proceeding. Often, the parties have settlement options that are business-oriented and less onerous than the payment of money.
Business executives are likely to be best able to explore such options.
The members of the Tribunal will be thoroughly familiar with the case, and an arbitrator not appointed by either party may well be able to serve as mediator. However, the parties may hesitate to confide in an arbitrator, and an arbitrator would be inhibited in making settlement proposals or giving advice to the parties. As a rule, therefore, it would be preferable for an individual not an arbitrator in the case to serve as mediator. The Tribunal can be helpful by proposing well qualified candidates and by familiarizing the mediator with the case. It is assumed that if a settlement does not come about, the terms of any settlement offers will not be admitted into evidence at the hearings.