Building Settlement into the Arbitration
Arbitration can become increasingly adversarial as a case progresses. By the time parties seriously consider settlement, they may already have spent substantial time and money on the proceedings, and come to see settlement as no longer realistic.
Rule 17 of the CORD Rules is designed to make settlement part of the process from the outset.
The Tribunal must encourage the parties to consider settlement at the First Procedural Conference and may raise it again at later stages where appropriate. Where the parties agree, the Tribunal may refer them to mediation.
Making space for settlement
If the parties decide to explore settlement or mediation, the Tribunal may suspend the arbitration, ordinarily for up to 30 days, so that discussions can take place without the arbitration continuing in parallel.
If parties need more time, they may ask for the suspension to be extended.
Keeping settlement discussions separate
The arbitrators do not themselves act as mediators.
What is said or produced during mediation or settlement discussions cannot be disclosed to the Tribunal or used in the arbitration. A party's refusal to mediate, or the failure of a mediation, also cannot by itself lead to an adverse inference.
This allows parties to explore settlement candidly, without affecting their position in the arbitration if settlement does not succeed.
Why it matters
Rule 17 treats settlement as a serious part of dispute resolution, rather than something parties consider only after the arbitration has run its course.
It gives parties a structured opportunity to resolve the dispute earlier, while protecting the arbitration if those discussions do not result in settlement.