ABSTRACT
Chapter 8 investigates the third of the three ways to address behavioural and procedural concerns associated with the same neutral (arb)-med-arb: the implementation of safeguards for using the same neutral (arb)-med-arb. It identifies two key safeguards that parties should implement if they ch oose the same neutral (arb)-med-arb as their dispute resolution mechanism: party consent and one of the two safeguard options for reducing concerns related to the use of caucuses. Party written consent is the critical safeguard that must be observed to protect the arbitrator and the award from a challenge on the ground of the arbitrator’s participation in mediation. To be valid, party consent must be a result of parties’ voluntary choice and it must be informed. As for the two safeguard options for reducing concerns related to the use of caucuses, the first is to exclude caucuses altogether and conduct mediation in joint sessions only. The second option is to allow caucuses and, if parties do not settle in mediation and the dispute proceeds to arbitration, authorise the neutral either to disclose material information from caucuses to the other party before starting/resuming arbitration or to disregard any information from caucuses. Both safeguard options related to caucuses, however, have flaws.
