In the middle of a commercial arbitration involving American parties, counsel asked the arbitrator for something: to switch hats and facilitate a settlement. The arbitrator knew the file inside out and had earned the parties' trust; a negotiated resolution was in everyone's interest. Even so, the arbitrator declined to change roles. Instead, the arbitrator proposed a structured pause: the arbitration would be suspended for a set period, the parties would work with a separate mediator during that time, and if mediation failed to produce a result, the arbitration would resume where it left off. The case settled during that pause.
This small moment captures a truth that recurs across cross border disputes: whether a neutral can switch roles is not merely a procedural question. It is a cultural signal. And how the parties read that signal depends heavily on where they sit. Giuseppe De Palo of JAMS, a New York based international mediator and a colleague I have known for years, explored exactly this question last month in a piece published in Mealey's International Arbitration Report, examining it in depth across different legal cultures.
The Same Question, Different Answers
In many countries, China chief among them, having the same person take on different dispute resolution roles is widely accepted. In the United States, by contrast, practitioners are wary; a neutral switching roles is seen as a risk that could undermine the legitimacy of the process. This difference is not a matter of technical preference. It is the surface expression of a deeper divergence in how authority, trust, and procedural expectations are understood across legal cultures.
A European Chinese joint venture dispute heard in Singapore illustrates this well. The European side had prepared extensively for arbitration, focused on establishing who was contractually right. Written exchanges produced no results, and the European side could not understand why the other side seemed so uninterested in the merits. The Chinese side, meanwhile, valued the chance for a direct conversation with an authoritative figure who would listen to them more than any documentary record; its focus was less on a specific breach than on what the dispute meant for the long-term relationship between the two companies. Once the process was reframed, not as a matter of asserting rights but as a threat to a valued partnership, and once a meeting was arranged with a visibly authoritative neutral present, it opened a door that weeks of positional correspondence had failed to open.
Northern Europe offers a different example. In the Nordic countries, conciliation is accepted as a structural part of both court and arbitration proceedings; Swedish judges taking an active role in encouraging settlement, something that would raise neutrality concerns in the United States, operates here within an established norm and a framework of institutional trust. The difference is not that procedural integrity matters less here. It is that the understanding of procedural integrity also encompasses facilitation.
Two Frameworks: Hofstede and Meyer
Geert Hofstede's framework of national culture dimensions offers a useful vocabulary for organizing these differences, not as a precise model but as a tool for describing tendencies. In societies with high power distance, hierarchical authority is more readily accepted, and the neutral is perceived as a trusted figure expected to guide the dispute in its entirety; the line between facilitation and decision making becomes correspondingly less distinct.
Erin Meyer's The Culture Map adds two further layers: how disagreement is expressed and how trust is built. In some cultures, direct challenge is a sign of engagement and respect; in others, open disagreement reads as a form of disrespect. Similarly, in some cultures trust is established through the rapid demonstration of competence, while in others it is built only through a personal bond that deepens over time. One party may readily accept a structured process from an institution it has never worked with, while another may accept the very same process only if it is proposed by someone it already knows and trusts.
What Can Be Done in Practice
Understanding these cultural dynamics is only a starting point. The real question is how to use that understanding to persuade the other side to accept a particular process design.
The process should be framed in the other side's own language. When proposing arbitration to a Chinese party, the emphasis should fall not on efficiency or enforceability but on neutrality, expertise, and preserving the relationship; when proposing a hybrid process to an American party, the emphasis should fall not on flexibility but on consent mechanisms, role separation protocols, and the enforcement route available under the New York Convention. The same process can be presented in very different ways, depending on what the other side needs in order to feel secure.
Implicit assumptions should be surfaced early. In cross border disputes, one party's assumption may be that switching roles is normal, while the other's is that it is off limits, and this difference may go unnoticed until it damages trust. Surfacing these assumptions while the dispute resolution clause is being negotiated, or at the first procedural conference, allows the parties to design around the difference before they run into it.
Timing matters as much as content. While the contract is being negotiated, the parties are in a collaborative frame of mind, making it the most favorable moment to agree on hybrid mechanisms; once a dispute has begun, positions harden, and the same proposal can be read as a tactical maneuver rather than a genuine design choice.
The party proposing the process should be the institution, not the neutral. An arbitrator who spontaneously proposes switching roles midway through a dispute risks appearing to serve their own interest; it is far more credible when institutions build this into their rules, consent forms, and case management procedures as a neutral, systematic option.
Finally, the reality of enforcement should not be overlooked. If international enforcement of the resulting award is anticipated, the New York Convention, with its 172 contracting states, remains the governing framework; procedural irregularity, including uncertainty about the neutral's role, can provide grounds to challenge recognition of an award. The essential distinction to keep in mind here is that arbitration is an adjudicative process while mediation is an alternative dispute resolution method; the strength of a hybrid design comes from combining these two distinct natures in the right sequence and with clear consent mechanisms.
The Real Lesson
Whether a neutral can switch roles is, on one level, a narrow procedural question. On another, it is a window onto how authority, process, and risk are understood across different legal cultures. Institutions are narrowing these differences, slowly but genuinely; cross border arbitrator training programs, a rising number of dual qualified practitioners, and efforts at rule harmonization are evidence of that. But the layer of persuasion, the skill of guiding the other side toward accepting a particular design, remains underdeveloped even as institutions converge. Reading the wind means knowing the right name for it, but it also means knowing whether the person across from you has ever heard the wind described that way at all.
Source
1. Giuseppe De Palo, Reading the Wind: How Cultural Currents Shape Dispute Resolution Across Borders, Mealey's International Arbitration Report, Vol. 41, No. 7, July 2026.