Frankly, that's an excellent question which I very much appreciate.
First of all, I fully support mediation. ADR, alternative dispute resolution, is very positive, if it can save costs, if it can speed up the resolution of disputes. If the parties are more comfortable with resolving a dispute that affects them primarily or only, I completely support it. I don't think courts should in any way try to interfere with those kinds of processes.
I think there are some contexts to which arbitration is just not well suited. In a basic public law context, let's imagine that criminal law or charter disputes could be resolved through arbitration without any possibility for review in a court. How would, for example, the accused person feel, if the accused person knows that the arbitrators, whose business, really, is arbitration, are not going to get appointed anymore unless there is a certain number of successful prosecutions? It's just not a context in which arbitration is used, and it shouldn't be used.
When we took commercial arbitration out of commercial disputes, disputes between companies, and put it into the investment chapters of trade agreements and FIPAs, that dejudicialized the dispute resolution process.
That is an essential concern that I have. You can make arbitration much more judicial than it is in investor-state arbitration. State-to-state arbitration, for example, under NAFTA is far superior to investor-state arbitration.