Arbitration and settlement: Influence of culture, legal tradition

By Professor Thomas Stipanowich
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Culture and legal tradition often determine what goals and values are associated with dispute resolution, and so influence process choices. Views of mixed-mode dispute resolution processes such as single-neutral Med-Arb, in which a mediator changes hats and becomes an arbitrator in the course of resolving a dispute, or Arb-Med, in which an arbitrator changes hats to become a mediator, are heavily influenced by culture and legal tradition.

The US has a culture focused on the rights of individuals, the rule of law, procedural due process and equality of opportunity. So in dispute resolution much emphasis has always been placed on process goals such as party autonomy, freedom of choice and independence in decision making. In addition, there is considerable emphasis on fair procedures and the application of legal norms.

THOMAS STIPANOWICH
THOMAS STIPANOWICH

In the US, lawyers exert tremendous pressure on dispute resolution processes – a kind of professional “gravitational pull”. The modern “quiet revolution in dispute resolution” that began four decades ago in the US was in many ways a response to the shortcomings of an often costly and time consuming litigation system.

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Professor Thomas Stipanowich is an arbitrator at Beijing Arbitration Commission/Beijing International Arbitration Center (BAC/BIAC), and the Dean of Straus Institute for Dispute Resolution, Pepperdine University. BAC/BIAC’s senior manager, Terence Xu, also contributed to the article