Published: 2026-02-27 00:00
Mediation by the arbitral tribunal represents a combination of arbitration and mediation, integrating mediation into the arbitral process based on the parties' mutual intent. If the parties agree to mediate during the arbitration, the arbitral tribunal may conduct mediation of the case during the arbitral proceedings. Arbitrators may act as mediators, using flexible methods to encourage the parties to voluntarily reach a settlement agreement. The parties may then withdraw the claim, or request a legally effective award or consent award based on the parties' agreement and the content of the settlement agreement.
I.Text of Article 35 “Mediation by the Arbitral Tribunal”
1. If the parties are willing to mediate, the Arbitral Tribunal may preside over the mediation during the arbitral proceedings.
2. If the parties agree to mediation by the Arbitral Tribunal, the arbitrator presiding over the mediation may continue to perform the duties of an arbitrator in subsequent arbitral proceedings, unless otherwise agreed by the parties or provided by the law of the seat of arbitration.
3. The Arbitral Tribunal may conduct the mediation in such manner as it deems appropriate. With the consent of the parties, the mediation may be presided over by all or part of the members of the Arbitral Tribunal.
4. If a party applies for a person other than involved in the case to participate in the mediation and other parties and the said person agree so in writing, the Arbitral Tribunal may notify the said person to participate in the mediation.
5. If, during the mediation, either party proposes to terminate the mediation or the Arbitral Tribunal considers that the mediation will fail, the mediation shall be stopped.
6. If the parties reach a settlement through mediation, they may withdraw the claim or counterclaim, or request the Arbitral Tribunal to make an arbitral award or a consent award in accordance with the settlement agreement.
7. If the mediation fails, neither party shall invoke any statement, opinion, viewpoint, suggestion or assertion of the parties and/or the arbitrator during the mediation as the basis for supporting its claim, defense or counterclaim in subsequent arbitral proceedings, judicial proceedings or any other proceedings.
II.Juridical Basis for "Mediation by the Arbitral Tribunal"
The combination of arbitration and mediation is rooted in China's profound culture of mediation. This unique practice of mediation conducted by the arbitral tribunal is renowned as the "Oriental experience" and has proven highly effective in practice. Experience shows that combining arbitration and mediation can incorporate the advantages of mediation, maintaining and developing amicable cooperative relations between the parties, while also utilizing the characteristics of arbitration to grant the mediated outcome legal binding force and enforceability through an award or consent award.
In contrast, Western arbitration culture emphasizes the procedural separation of arbitration and mediation. Arbitration rules such as the UNCITRAL Arbitration Rules, ICC Rules, LCIA Rules, SCC Rules, HKIAC Rules, and SIAC Rules do not provide for mediation within the arbitral process. If parties wish to mediate during arbitration, the common practice is to suspend the arbitral proceedings, allowing the parties to appoint an independent mediator separately. After the mediation concludes, whether or not a settlement is reached, the arbitral proceedings are either resumed or terminated. This approach reflects the strict pursuit of procedural purity and arbitrator neutrality in Western arbitration theory.
III.Analysis of Core Features of this Article
(A) Article 35(1): If the parties are willing to mediate, the Arbitral Tribunal may preside over the mediation during the arbitral proceedings.
This paragraph addresses mediation conducted during the arbitral proceedings after the tribunal's constitution. The prerequisite for initiating mediation is the consent of both parties. In some cases, parties may request the arbitral tribunal to mediate the dispute before the hearing commences. If successful, this can save the time and effort of a hearing and avoid confrontational exchanges. In other cases, near the conclusion of a hearing, the tribunal, having gained a comprehensive understanding of the case, may inquire whether the parties are willing to mediate. If both agree, the tribunal may proceed with mediation. Before commencing mediation, arbitrators should fully inform the parties of the mediation methods, their rights, and the consequences of success or failure.
It is important to note that mediation is not a mandatory step in arbitration; agreeing to mediation is entirely subject to the parties' autonomous will.
(B)Article 35(2): If the parties agree to mediation by the Arbitral Tribunal, the arbitrator presiding over the mediation may continue to perform the duties of an arbitrator in subsequent arbitral proceedings, unless otherwise agreed by the parties or provided by the law of the seat of arbitration.
This paragraph directly responds to concerns in Western arbitration theory regarding the mixing of mediator and arbitrator roles. When parties agree to mediate within the arbitral process, they accept the arbitrator also acting as mediator. Regardless of whether the mediation succeeds, the arbitrator can revert from the role of mediator to that of arbitrator after the mediation concludes.
Arbitrators retain the duty to remain impartial during the mediation process. If an arbitrator displays obvious bias towards one party during mediation, and the other party objects to them continuing as arbitrator in subsequent proceedings, that party has the right to challenge the arbitrator pursuant to Article 15 of these Rules. The decision on challenge shall be made by the Arbitration Court after considering written submissions from the challenged arbitrator, the other parties, and tribunal members.
Furthermore, if the parties have agreed otherwise concerning the dual arbitrator-mediator role, or if the law of the seat has specific provisions (particularly in Western jurisdictions emphasizing the separation of arbitration and mediation), such party agreement or applicable law shall prevail. ICDPASO has established a separate Mediation Center alongside the Arbitration Court. Parties to arbitration may have their arbitrator act as mediator under these Rules, or they may submit the dispute to the Mediation Center for mediation under ICDPASO's one-stop dispute resolution framework. ICDPASO's institutional design greatly facilitates parties switching between arbitration and mediation procedures.
(C)Article 35(3): The Arbitral Tribunal may conduct the mediation in such manner as it deems appropriate. With the consent of the parties, the mediation may be presided over by all or part of the members of the Arbitral Tribunal.
Mediation methods are flexible and diverse. The arbitral tribunal may decide on appropriate procedures and methods based on full respect for the parties' wishes and consultation with them. For example, arbitrators may conduct private caucuses with individual parties, joint meetings with all parties, facilitate direct discussions between parties under the tribunal's auspices, conduct mediation in writing, or use a combination of these methods. Mediation can occur immediately after a hearing concludes, or at a separately agreed time and place. With the parties' consent, mediation may involve all or only some members of the tribunal; the specific arrangement shall be decided by the tribunal after consulting the parties.
(D)Article 35(4): If a party applies for a person not involved in the case to participate in the mediation and the other parties and the said person agree in writing, the Arbitral Tribunal may notify the said person to participate in the mediation.
This paragraph reflects the openness and flexibility of mediation proceedings. Such persons may include expert advisors, industry specialists, or third parties with an interest in the dispute. Their participation can sometimes provide specialized insights or facilitate reaching a settlement. The written consent requirement ensures all participants confirm the procedural propriety of involving an external person, preventing subsequent procedural objections.
(E)Article 35(5): If, during the mediation, either party proposes to terminate the mediation or the Arbitral Tribunal considers that the mediation is unlikely to succeed, the mediation shall be stopped.
Mediation is not a mandatory step, and parties will not necessarily reach a settlement through it. If either party requests termination, the mutual consent basis for mediation ceases to exist, and the tribunal shall terminate mediation. Protracted unsuccessful mediation could cause unfairness in the arbitral process. Even if neither party requests termination, the tribunal shall terminate mediation if it considers success impossible. Requests for termination or decisions to terminate may be made in writing or orally.
Upon termination of mediation, the default position is that the arbitral tribunal shall resume the arbitral proceedings and continue the hearing to render an award.
(F)Article 35(6): If the parties reach a settlement through mediation, they may withdraw the claim or counterclaim, or request the Arbitral Tribunal to make an award or a consent award in accordance with the settlement agreement.
A settlement agreement is the written embodiment of a successful mediation outcome. If parties reach a settlement through the tribunal's mediation, they may withdraw their claim and counterclaim. Based on the principle of party autonomy, parties may dispose of their claims and counterclaims, including modifying or waiving them partially or entirely, provided this does not violate mandatory legal provisions or harm public interests or the legitimate rights of others.
An arbitral award becomes legally effective from the date it is made. Under the New York Convention, arbitral awards are enforceable in courts of contracting states.
A consent award becomes legally effective upon receipt by both parties. Article 64(2) of China's newly revised Arbitration Law states, "A consent award has the same legal effect as an arbitral award."
It is particularly important to note that, although not explicitly listed here, when the tribunal makes an award or consent award based on the parties' settlement agreement, it must strictly comply with the legality and authenticity principle in Article 34 of these Rules: the settlement agreement must not harm the interests of non-parties or the public interest.
(G)Article 35(7): If the mediation fails, neither party shall invoke any statement, opinion, view, suggestion, or assertion made by the parties or the arbitrator during the mediation as the basis for supporting its claim, defense, or counterclaim in subsequent arbitral proceedings, judicial proceedings, or any other proceedings.
This paragraph aims to encourage parties to actively utilize mediation for settlement, prevent a party from maliciously exploiting mediation for personal gain, and ensure the fairness of subsequent proceedings like arbitration. Before mediation commences, the tribunal will inform parties of their rights and obligations during mediation and the legal consequences of failure, especially that if mediation fails, no party's statements or actions during mediation shall serve as the basis for the tribunal's final award or be invoked in any subsequent proceedings. This provision helps alleviate party concerns and actively cooperate with the tribunal in mediation. Although parties may raise similar arguments after failed mediation as during it, they must not maliciously use information or commitments obtained during mediation against the other party in other proceedings.
IV.Practical Advantages of this Article
(A) Seamless Procedural Connection and Resource Efficiency, Enhancing Overall Dispute Resolution Effectiveness
Mediation by the arbitral tribunal achieves organic integration of arbitration and mediation within the same procedural framework, avoiding duplicate filings, personnel changes, delays, and increased costs from separate procedures. The tribunal, with its comprehensive understanding of the case, can accurately address core issues while flexibly employing various methods like caucusing and written shuttle diplomacy, significantly improving settlement rates and resource utilization, offering parties a cost-effective one-stop dispute resolution solution.
(B)Establishing a Safe Mediation Environment and Rights Protection Mechanism, Effectively Encouraging Active Party Participation
The Article clearly stipulates that statements, opinions, etc., during mediation cannot be used as evidence in subsequent arbitration or judicial proceedings, creating an unrestricted space for parties to communicate candidly. Combined with multiple outcomes—parties withdrawing claims or converting settlement agreements into enforceable instruments—it provides comprehensive legal protection for parties exploring settlement while fully respecting party autonomy, effectively eliminating concerns.
(C)Balancing Oriental Experience with International Consensus, Achieving Unity of Fairness and Efficiency
Building on the "combination of arbitration and mediation" as Oriental experience, the Article addresses concerns about arbitrator neutrality and procedural fairness through mechanisms like challenges, party consent, and priority for the law of the seat of arbitration. This arrangement, leveraging the tribunal's expertise while adhering strictly to procedural justice, ensures a swift return to arbitration if mediation fails, thereby guaranteeing robustness and credibility throughout the dispute resolution process.
Conclusion: Perfecting the Integrated "Arbitration-Mediation" Mechanism, Demonstrating the Fusion of Oriental Wisdom and Modern Arbitration Concepts
The success of ICDPASO Rules Article 35 "Mediation by the Arbitral Tribunal" lies in integrating mediation experience rooted in Oriental wisdom with modern arbitration concepts formed by drawing on China's practical achievements in combining litigation with mediation. This creates a complete mechanism respecting party autonomy while ensuring procedural fairness and efficiency. Through flexible procedural design, rigorous rights protection, and effective incentive mechanisms, this Article fully utilizes the tribunal's expertise in facilitating settlement, providing parties an ideal path for amicable dispute resolution within the arbitration framework. This institutional arrangement not only reflects ICDPASO Rules' profound understanding of diverse dispute resolution needs but also demonstrates its innovative spirit based on absorbing essences from different legal cultures, offering a distinctively Oriental solution for international commercial arbitration practice.
