ugh mediation can cause procedural delays and additional expenses. Possibility of risking time and cost efficiency of

3. 2. 1. From the “time and cost efficiency” perspective Assistance of Arbitral Tribunal for settlement through mediation can cause procedural delays and additional expenses. Possibility of risking time and cost efficiency of the arbitration process is, probably, higher when the mediating arbitrator is not accepted as continuing arbitrator by disputing parties after the unsuccessful mediation session(s). In fact, it would take time to appoint a new arbitrator (during which time the Tribunal is unlikely to be able to provide directions or deal with any interlocutory applications) and, practically, there will be additional costs for getting a new arbitrator up to speed. Therefore, mentioned presumable circumstance proves that the use of hybrid method under the Prague Rules may have “hazardous” effect on the time and cost efficient nature of arbitration method. 3. 2. 2. From the “party autonomy” perspective: coercing parties to settlement and “facilitation in the shadow of a possible future award” Article 9. 1 of the Prague Rules indicates that “Unless one of the parties objects, the arbitral tribunal may assist the parties in reaching an amicable settlement of the dispute at any stage of the arbitration”. It is evident that, by defining “unless one of the parties objects” criteria, the clause again promotes the proactive role of arbitral tribunal rather than the parties explicit agreement and consent. However, in practice this proactivity may have undesirable effect on parties’ willingness to resolve the dispute, especially through hybrid arbitration-concliation proceedings which is possible under the Article 9. 1 of the Prague Rules. On the one hand parties may feel coerced into settlement as an undesirable result of mutually agreed arbitration method which is based on the party autonomy principle and, on the other hand, the very fact that the conciliation is conducted by the person who will adjudicate the dispute in the event of failure of the settlement may put pressure on the parties which can also be called as conciliation “in the shadow of a possible future award”. Even most sincere mediation efforts in a combined, med-arb procedure might easily fail if the parties abstain from full participation and disclosure of relevant facts in an open and informal mediation procedure, while being aware that this information can be further used against them in the following arbitration part. As a result, tribunal’s assistance to parties as a facilitator would, probably, be ineffective while parties would reasonably feel coerced to settle the dispute and be reluctant to have unreserved conversations with future decision-maker (assuming that the mediation was unsuccessful and the mediating arbitrator was retained as a member of the Arbitral Tribunal).