Another blog in our series on Chinese arbitration!

Can the Arbitrator Also Mediate?

Jialin Li

Many mediators and arbitrators are trained to keep those roles separate. A mediator may hear confidential information, test weaknesses, and float possible compromises; an arbitrator must decide on the record and remain visibly impartial. China has long been more willing to combine those functions, including allowing the arbitral tribunal itself to mediate a dispute before returning to adjudication if settlement fails.

That practice can make Western neutrals uneasy. But its persistence in China is not simply a cultural curiosity. It offers a useful test of a broader ADR question: must procedural fairness always require strict role separation, or can consent, confidentiality rules, and carefully designed safeguards make hybrid processes legitimate?

Why China Combined the Roles

Chinese arbitration law expressly permits mediation within arbitration. Under the 2025 Arbitration Law, an arbitral tribunal may mediate before issuing an award if the parties voluntarily agree. If mediation succeeds, the tribunal may issue a mediation statement or an award reflecting the settlement; if mediation fails, the tribunal resumes the arbitration and issues an award.

The practice predates the statute. CIETAC incorporated mediation into its arbitration rules in 1988, and the 1994 Arbitration Law later codified the basic model. Its development also reflects a legal culture in which consensual resolution and preservation of ongoing relationships traditionally have played a prominent role. In commercial disputes, that can make a process that combines adjudicative authority with a structured opportunity for settlement especially attractive.

The point is not that Chinese parties invariably prefer settlement or that Chinese and Western approaches fall into neat cultural categories. Rather, China institutionalized a form of hybrid dispute resolution earlier and more extensively than many jurisdictions, giving its institutions decades of experience with the benefits and risks of role switching.

Three Ways to Combine Mediation and Arbitration

Chinese institutions now offer several models rather than a single form of med-arb.

  • Mediation before arbitration. Parties may attempt mediation first, with arbitration available if settlement fails. This model typically uses a mediator who is separate from the eventual tribunal. The Beijing Arbitration Commission and other institutions operate dedicated mediation mechanisms, while the Shanghai International Arbitration Center (SHIAC) permits mediation after a case is accepted but before the tribunal is constituted.
  • Mediation by the arbitral tribunal. In the model that most clearly challenges conventional role boundaries, an arbitration already is underway and the tribunal, with party consent, temporarily acts as mediator. If settlement fails, the same tribunal returns to adjudication. The attraction is efficiency: the arbitrators already know the facts and legal issues, so settlement discussions can be focused and informed.
  • Independent mediation during arbitration. Parties also may use a mediator who is outside the tribunal while arbitration continues. CIETAC, the Beijing Arbitration Commission, and the Shenzhen Court of International Arbitration (SCIA) all provide mechanisms for this kind of parallel process. It preserves the settlement opportunity while avoiding the central objection to same-neutral med-arb: the risk that confidential mediation information will affect the later award.

These alternatives make the design choice more granular than a simple decision between mediation and arbitration. Parties can choose when mediation occurs, whether the mediator and arbitrator are the same person, and how closely the settlement process is connected to the arbitration.

The Neutrality Problem

The hardest issue is what happens when mediation fails. A neutral who has participated in caucuses may have heard admissions, settlement offers, or candid assessments that never would have entered the arbitral record. Even if the arbitrator believes that information is being disregarded, the losing party may reasonably wonder whether it affected the award.

Chinese institutions have responded with procedural safeguards. SHIAC, for example, bars parties from introducing information, documents, statements, opinions, or proposals from mediation into later arbitration or judicial proceedings. In pre-arbitration mediation, institutions often separate the roles entirely unless the parties agree otherwise. Mediators may be required to disclose circumstances affecting independence or impartiality, and institutional rules commonly protect the confidentiality of the mediation process.

Those protections do not eliminate every concern. Same-neutral med-arb depends heavily on informed consent and party confidence in the neutral. It may be inappropriate where parties are highly distrustful, where one party feels pressured to mediate, or where caucusing creates an unacceptable risk of informational contamination. But China’s experience suggests that the fairness inquiry need not stop with the proposition that one person should never perform both roles.

A Broader ADR Design Question

The disagreement over med-arb reflects different ways of understanding neutrality. One approach protects neutrality principally through role separation: the person who facilitates settlement should not later decide the case. Another relies more heavily on party choice, confidentiality, professional discipline, and procedural safeguards. Neither approach makes the underlying concern disappear; each manages it differently.

For ADR practitioners, that is the more interesting lesson. Hybrid processes should not be evaluated only by asking whether they resemble a familiar model. The better questions are what risks a particular combination of roles creates, whether the parties understand and accept those risks, and whether the process contains safeguards proportionate to them. China’s long experience with mediation inside arbitration provides an unusually developed setting in which to examine those questions.

The next post steps back from hybrid procedure to the legal framework itself: China’s 2025 Arbitration Law and several changes that matter beyond China.

About the author

Jialin Li is a lecturer at the China University of Political Science and Law.

This post draws on Jialin Li, “The Role of Mediation in Chinese Arbitration Centers,” in Richard Bales & Dan Xie, eds., The Cambridge Handbook of Arbitration in China (Cambridge University Press, forthcoming spring 2027). The submitted chapter is available on SSRN.