With arbitration rules containing built-in prohibitions against arbitrators acting ex aqueo et bono or as amiable compositeurs, are parties unable to exercise the choice mandated by sub-section 28(2) of the Arbitration & Conciliation Act 1996 and is it bad policy for adjudicators to know which party has obstinately refused to take the middle path. 

Arbitrators have a first perspective on the maintainability and viability of a dispute. Whilst lacking the inherent power of a civil court or power to do complete justice or to award relief going beyond damages for breach of contract, an arbitrator is still best placed to understand the nuances of each dispute. Is there a clear conflict arising from an arbitrator’s legal duty as an adjudicator or can they guide the parties to effective dispute resolution by applying principles of equity and fairness? Can these issues be overcome with better training, guidelines and institutional participation to propel parties towards a settlement? Should arbitrators and judges be empowered to propel parties towards a middle-path settlement or are winner-takes-all adjudications preferred?