Many may think that the arbitrator does not have a relevant role in encouraging conciliation between the parties in arbitration. This is because, as it is a contentious procedure, generally preceded by an attempt at negotiation, conciliation or mediation, it could be inferred that there is no longer any hope for the parties, who seek to litigate with the initiation of the arbitration procedure.

However, agreements in the course of arbitration are increasingly common. And encouraging conciliation at the beginning of the procedure is not only an official duty of the arbitrator, but also a legal obligation. In this sense, art. 21, §4 of the Arbitration Law provides that:

“ It will be up to the arbitrator or the arbitral tribunal, at the beginning of the procedure, to try to reconcile the parties, applying, where appropriate, art. 28 of this Law” .

Therefore, at the hearing to sign the arbitration agreement, the arbitrator must ask the parties whether they are interested in proposing an agreement and encourage them to do so – which must also be included in the arbitration agreement.

Although the law only mentions “at the beginning of the procedure”, the possibility of conciliation of the parties can be raised at any time by the arbitrator, normally in “meetings” with all participants in the arbitration, in a presentation hearing case, evidentiary hearing or other meeting. This possibility, of course, can come from the parties themselves through a petition or oral request in the aforementioned “meetings”.

At the encouragement of the arbitrator, it is customary to ask the parties whether there is the possibility of presenting proposals for an agreement, even before beginning the work of the hearings or meetings. If there is a possibility of agreement, the arbitrator asks the interested party to make their proposal (if one already exists) or suspends the work of the session or hearing for a short period so that the parties can reflect on the matter and propose something at that time.

If the possibility of an agreement advances, the parties may request the arbitrator to suspend the arbitration proceedings to attempt an agreement – ​​suspension for 30 days with the possibility of extension is common. If this occurs, the arbitrator must pay special attention to constant requests for extension, which may violate the principles of speed and procedural economy, and even mean the practice of guerrilla tactics by one party to delay the procedure even further. It is clear that the arbitrator must pay attention to the particularities of the case to understand whether these principles have been violated or not, always taking into account the party autonomy.

In other words, the arbitrator must be guided by the principle of reasonability and analyze whether the parties are actually making an effort to reach an agreement or not and, in case of difficulties, may suggest the holding of an extraordinary session to address said issues or simply suggest the continuation of the arbitration, with the possibility of restarting negotiations at any time, with the aim of maintaining the smooth progress of the procedure.

In the event that the parties have reached an agreement regarding the matter under discussion (whether full or partial), art. 28 of the Arbitration Law provides that:

“ If, during the course of the arbitration, the parties reach an agreement regarding the dispute, the arbitrator or the arbitral tribunal may, at the request of the parties, declare this fact by means of an arbitration award, which will contain the requirements of art. 26 of this Law “.

Therefore, said agreement must consist be present in a Homologation Arbitration Award that meets the legal requirements, which may be partial – in which case it reflects the partial agreement of the requests – or final – agreement relating to all requests.

In conclusion, the arbitrator has a fundamental role in conciliating the parties in arbitration, having in fact the legal obligation and the official duty to encourage it.