The function of arbitration nowadays is to provide a better way of resolving disputes, in one way or another, than that provided by the regular courts of law. Looking backwards on history, therefore, one might be forgiven for assuming that arbitration must have been devised as an ingenious alternative to litigation in courts. As a matter of actual history, however, arbitration and mediation are almost certainly older than law, and it was the courts of law which arose as an alternative to, or a reinforcement of, arbitration. One might go so far as to suggest that the courts of law never, at any period in history, displaced arbitration as a normal method of dispute resolution in England. Indeed, throughout the whole period during which the common law developed – nay, from Anglo-Saxon times until the present day – arbitration has generally been seen as preferable to law.

Writers on Anglo-Saxon law maintain that arbitration was a known concept before 1066, though not much light is thrown on the matter by the codes. There is said to be a reference to arbitration in the late-seventh century laws of Hlothhere and Eadric, but it is not clear what the Anglo-Saxon word is or what it connoted. There is also a reference in the laws of Aethelberht, 65, s. 1, to settlement by composition of friends.