DOCSLIB.ORG

Mapping Modern Mediation Movements in Civil and Common Law Jurisdictions Nadja ALEXANDER Singapore Management University, [email protected]

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Mapping Modern Mediation Movements in Civil and Common Law Jurisdictions Nadja ALEXANDER Singapore Management University, Nadjaa@Smu.Edu.Sg CORE Metadata, citation and similar papers at core.ac.uk Provided by Institutional Knowledge at Singapore Management University Singapore Management University Institutional Knowledge at Singapore Management University Research Collection School Of Law School of Law 7-2001 What's law got to do with it: Mapping modern mediation movements in civil and common law jurisdictions Nadja ALEXANDER Singapore Management University, [email protected] Follow this and additional works at: https://ink.library.smu.edu.sg/sol_research Part of the Dispute Resolution and Arbitration Commons, and the Jurisdiction Commons Citation ALEXANDER, Nadja. What's law got to do with it: Mapping modern mediation movements in civil and common law jurisdictions. (2001). Bond Law Review. 13, (2), 1-29. Research Collection School Of Law. Available at: https://ink.library.smu.edu.sg/sol_research/1881 This Journal Article is brought to you for free and open access by the School of Law at Institutional Knowledge at Singapore Management University. It has been accepted for inclusion in Research Collection School Of Law by an authorized administrator of Institutional Knowledge at Singapore Management University. For more information, please email [email protected]. WHAT’S LAW GOT TO DO WITH IT? MAPPING MODERN MEDIATION MOVEMENTS IN CIVIL AND COMMON LAW JURISDICTIONS By Nadja Alexander * Mediation: A Flexible Process in a Procrustean Bed? In Australia we call it ‘Mediation’, the French say ‘la mediation’, and t he Germans ‘die Mediation’. The term is global, stemming from the Latin, mediatio; 1 the process universal, its inherent flexibility transcending historical and national legal norms and systemic differences. Indeed, forms of mediation can be traced back to sources in ancient Greece, 2 the Bible, 3 traditional communities in Asia and Africa, 4 and to the fourteenth Century English ‘Mediators of Questions’. 5 Mediation, however, does not exist in a vacuum. It operates against a backdrop of national dispute manag ement culture and institutional rules and regulations. Accordingly, it is nothing less than misleading to consider mediation as a universal process in isolation from its context. Context determines how mediation is absorbed and applied by mediators, disput e management professionals such as lawyers and clients. Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can * Associate Professor of Law, University of Queensland. 1 A Kemmann and M Gante -Walter, ‘Zur Begriffsgeschichte der Mediation’ (2001) 6 ZKM 273 -4. 2 Ibid. 3 See Matthäus 5:9 -1. Timotheus 2:5 -6; Korinther 6:1 -4. 4 On the earlier forms of consensus -based dispute resolution, or mediation in traditional communities such as the Nuer in Sudan and the Ndendeuli in Tansania, see A Holtwick - Mainzer, Der übermächtige Dritte: Eine rechtsvergleichende Untersuchung über den streitschlichtenden und streitentscheidenden Dritten (1985) 40; P Gulliver, ‘Dispute Settlement Without Courts: Th e Ndendeuli of Southern Tanzania’ in L Nader (ed) Law in Culture and Society (1969) 24. On the application of mediation in China and the Asian region, see D Bagshaw, ‘ China: Mediation in Divorce is an All -In Affair Now’ (1995) 2 Australian Lawyer 24; H Ga llagher, ‘ The Eastern Approach’ (1995) 69 Law Institute Journal 64; T Krapp, ‘Zivilrechtliche Schlichtung an japanischen Gerichten’ in W Gottwald and D Strempel (eds), Streitschlichtung: Rechtsvergleichende Beiträge zur au er -gerichtlichen Streitbeilegung (1995) 77. 5 P Dwight, ‘Commercial Dispute Resolution in Australia: Some Trends and Misconceptions’ (1989) 1 Bond Law Review 1. provide insights into the reasons behind th e rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia an d Germany: two countries that represent the common law and the civil law traditions respectively. The Common Law Context: Australia The modern mediation movement began in the 1970s in the United States, and while the curious reader might be forgiven for thinking that the United States may have provided a better comparative subject from the common law perspective, this article focuses on Australia for the following three reasons. First, Australia’s role as a global leader in ADR developments has been rec ognised on an international level. 6 Court -related ADR exists in every court and tribunal in Australia; 7 community mediation and private mediation exist in all Australian jurisdictions. In other words, mediation has been applied in practice to all types of disputes. Such a broad spectrum of practice can provide invaluable comparative insights for an evolving global context. Second, much has already been written about the US experience, often to the exclusion of other jurisdictions with valuable, different and cutting -edge comparative experiences, such as Australia. 8 Different insights can be gained from a comparison with the Australian experience. One significant example is the development of the discussion on national standards for mediation. While the Uni ted States has moved closer towards national standards through the Model Uniform Mediation Act, 9 Australia’s National ADR Advisory Council (NADRAC) recently recommended against the development of one set of national mediation standards on the basis that su ch a development would threaten innovation and diversity in the practice of what is essentially a flexible process. 10 6 Australia, NADRAC, A Framework for ADR Standards, Report to the Commonwealth Attorney -Gen eral (2001) 47. 7 T Sourdin, Key Issues in Alternative Dispute Resolution (2001) 12. 8 W Gottwald, ‘Mediation in den USA – ein Wegweiser’ in M Henssler and Ludwig Koch (eds), Mediation in der Anwaltspraxis (2000) 221 -222. Gottwald points to the ironic fa ct that Asian and African countries today ‘import’ American ADR models, although traditional consensus -based dispute resolution processes from these same Asian and African countries served as models for the development of ADR in the United States. 9 See t he Program on Negotiation (PON) at Harvard Law School website [Internet - http://www.pon.harvard.edu/guests/uma/main.htm (Accessed 7 February 2002)]. 10 NADRAC, above n 6, 10. 2 Finally, mediation in the Australian legal system has developed, albeit not as the result of a regulatory government approach, in a much m ore homogenous manner than in the United States. It is much more difficult to speak of the ‘American experience’ in mediation, because there are so many vastly different dispute resolution cultures. While the Australian mediation movement can be characteri sed by its high level of innovation and experimentation resulting in an equally high level of diversity, a correspondingly low level of state based regulation has permitted a ‘similar’ diversity in mediation policy and practice to develop in all Australian jurisdictions. Accordingly, one can speak of the Australian experience in a more holistic way than the American. Therefore, a national cultural context such as the Australian is extremely useful as a basis for international comparative study. The Civil L aw Context: Germany The German legal system provides a useful example of the civil law tradition for the following reasons. German mediation developments, like those in other civil law jurisdictions, began to take shape in the 1990s. While each country’s mediation movement has developed differently, there are significant similarities between civil law countries and Germany provides a useful case study. Insofar as the European Union has introduced directives relating to mediation, German ADR regulations in corporate these. Germany is situated in central Europe and is surrounded by civil law traditions of other European countries. In terms of terminology, German is officially spoken in five European countries and principalities: Germany, Austria, Switzerlan d, Luxembourg and Lichtenstein. Accordingly, some degree of terminological consistency can be achieved for comparative purposes among these countries, as it can among English speaking common law countries such as Australia, New Zealand, the United States, Great Britain and Canada. Six Theses While the focus of this article is only on two countries, it is my contention that this comparative case study is a useful reflection on the significant differences existing in the development of mediation in common a nd civil law jurisdictions generally. At the very least, this case study will serve as a valuable starting point for further research in comparative mediation. I propose six theses for the current differences in mediation practice in Australia and Germany: 1. The German legal culture, steeped in the civil law tradition, restrains the development and acceptance of mediation (the civil law cultural tradition). 3 2. The highly regulated German legal profession has discouraged lawyers from embracing mediation as an alternative to litigation (the regulation of the legal profession). 3. The time and cost efficiency of the German legal system means that the promise of time and cost savings will not motivate stakeholders (the efficiency of the German legal system). 4. The ab sence of uniform terminology has led to confusion about the meaning of mediation in Germany (the language of mediation). 5. The settlement function inherent in the judicial role in
Load more

Recommended publications
  • On Mediation, Legal Representatives and Advocates I Introduction
    2015 On Mediation, Legal Representatives and Advocates 5 ON MEDIATION, LEGAL REPRESENTATIVES AND ADVOCATES BOBETTE WOLSKI * I INTRODUCTION Mediation has become an integral part of the civil justice system in Australia. 1 As a consequence, lawyers are frequently called upon to represent their clients in mediation. 2 Mediation may come about: by private arrangement between the parties; as a result of legislative directive; or as a consequence of * Associate Professor of Law, Bond University. The author would like to thank the anonymous referees for helpful feedback on earlier drafts, and University of New South Wales Law Journal editorial team. 1 Most courts and tribunals in Australia either encourage or compel the parties to proceedings to attend mediation, sometimes as a prerequisite to commencing litigation. Mediation is also used extensively in many quasi-government institutions in Australia. See Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010) 262–75 (the authors list 109 mediation schemes operating in Australia). Similar developments have occurred in other common law jurisdictions, and indeed, in civil law countries. This article draws on case law and literature from a number of jurisdictions for there is a dearth of literature from any one jurisdiction dealing with ‘ADR Ethics’ – a term which has been used to describe a new field of expertise which combines ethics, legal ethics and dispute resolution: see, eg, Phyllis Bernard and Bryant Garth (eds), Dispute Resolution Ethics: A Comprehensive Guide (American Bar Association, 2002); Scott R Peppet, ‘ADR Ethics’ (2004) 54 Journal of Legal Education 72. For discussion of the position in the United States (‘US’), see Wayne D Brazil, ‘Court ADR 25 Years after Pound: Have We Found a Better Way?’ (2002) 18 Ohio State Journal on Dispute Resolution 93, 112; Nancy A Welsh, ‘Stepping Back through the Looking Glass: Real Conversations with Real Disputants about Institutionalized Mediation and Its Value’ (2004) 19 Ohio State Journal on Dispute Resolution 573.
    [Show full text]
  • Mediation in Practice: Common Law and Civil Law Perspectives Compared Nadja ALEXANDER Singapore Management University, [email protected]
    Singapore Management University Institutional Knowledge at Singapore Management University Research Collection School Of Law School of Law 1-2001 Mediation in practice: Common law and civil law perspectives compared Nadja ALEXANDER Singapore Management University, [email protected] Follow this and additional works at: https://ink.library.smu.edu.sg/sol_research Part of the Dispute Resolution and Arbitration Commons Citation ALEXANDER, Nadja. Mediation in practice: Common law and civil law perspectives compared. (2001). International Trade and Business Law Annual. 6, 1-18. Research Collection School Of Law. Available at: https://ink.library.smu.edu.sg/sol_research/1882 This Journal Article is brought to you for free and open access by the School of Law at Institutional Knowledge at Singapore Management University. It has been accepted for inclusion in Research Collection School Of Law by an authorized administrator of Institutional Knowledge at Singapore Management University. For more information, please email [email protected]. Mediation in Practice: Common Law and Civil Law Perspectives Compared Nadja Alaxander1 1 Introduction 1.1 Comparing Australian and German mediation practice Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only.2 Further, Labes states that 'ADR mechanisms are 3 relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition.
    [Show full text]
  • University of Stirling
    UNIVERSITY OF STIRLING International Standards for Commercial Mediators Christopher To A thesis submitted in partial fulfilment of the requirements for the Degree of Doctor of Philosophy August 2015 1 ABSTRACT This paper talks about the international standards for commercial mediators. It introduces the standards of eight different jurisdictions and afterwards, evaluates whether there should be one accrediting standard for all international commercial mediators. In the introduction chapter, the paper talks about the problems with the current legal system and then explains the growth of mediation in today’s society. By discussing the nature and practice of mediation, whether mediation should be compulsory or voluntary in light of Article 6 of the European Convention on Human Rights, rationale of the various jurisdictions covered, the paper then talks about the attributes that make a good mediator as well as the accreditation and training of mediators. From chapter two to chapter nine, the paper focuses on eight jurisdictions in which mediation is firmly enshrined within one legal culture to those that are just embarking on the concept (namely Australia, New Zealand, Indonesia, Malaysia, India, Hong Kong, California and Canada). Each chapter talks about the developments of commercial mediation, law and institutions as well as training and accreditation of mediators within their respective jurisdictions. 2 In the concluding chapter, it discusses whether there should be one accrediting standard for international commercial mediators by exploring the advantages and disadvantages of having one accrediting standard as well as the author’s analysis and point of view on the subject. 3 ACKNOWLEDGEMENT I am grateful to the University of Stirling for assisting me with this thesis.
    [Show full text]
  • The Thoughtful Integration of Mediation Into Bilateral Treaty
    The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitrationi Nancy A. Welsh2 and Andrea Kupfer Schneidera ABSTRACT While the current system of investment treaty arbitration has definitely improved upon the "gunboat diplomacy" used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increas- ingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article draws upon 1. This Article extends ideas begun in Nancy A. Welsh, Mandatory Mediation and Its Variations, in U.N. CONFERENCE ON TRADE AND DEV., INVESTOR-STATE DISPUTES: PREVENTION AND ALTERNATIVES TO ARBITRATION II, U.N. Doc. UNCTAD/ WEB/DIAE/IA/2010/8 (Susan Franck and Anna Joubin-Bret, eds., 2011), available at http://www.unctad.orglen/docs/webdiaeia20108-en.pdf [hereinafter INVESTOR-STATE DISPUTES II], Andrea Kupfer Schneider, Using Dispute System Design to Add More Process Choices to Investment Treaty Disputes, in INVESTOR-STATE DISPUTES II and Nancy A. Welsh & Andrea K. Schneider, Becoming "Investor-StateMediation," 1 PENN ST. J. L. & INT'L AFF. 86 (2012). We thank Jack Coe, Susan Franck, Mariana Hernandez Crespo, Anna
    [Show full text]
  • Comparative Adr in the Asia-Pacific – Developments in Mediation In
    COMPARATIVE ADR IN THE ASIA-PACIFIC – DEVELOPMENTS IN MEDIATION IN AUSTRALIA The 5Cs of ADR - Alternative Dispute Resolution Conference Singapore 4-5 October 2012 Campbell Bridge SC FCIArb 1. Australia has always embraced various processes of dispute resolution including mediation. Historically from Federation in 1901 until relatively recently our industrial system has revolved around conciliation and arbitration. Such systems have gone some distance towards creating a culture amenable to mediation. Native title disputes, family law, and farm debt loan disputes are areas (among many) which have arisen in the past few decades and in which mediation is at the forefront. This paper will focus very much on how mediation has risen from relative obscurity to being one of the most significant methods utilised to dispose of cases in mainstream litigation in our Federal and State courts. 2. Like Singapore, Australia has a robust and efficient judicial system. Twenty years ago, it was the norm for the commencement of settlement discussions to await the arrival of the parties at the door of the court. Settlement approaches to the other side were perceived as a sign of weakness. By 2012 the landscape had changed completely. Virtually all cases now settle before the commencement of the hearing. While it is difficult to obtain statistics on this, the experience of the author and my many professional colleagues renders this contention virtually irrefutable. Of the relatively few matters that now proceed to hearing in our superior courts, virtually none do so without at least one mediation on the way. In Australia, mediation rather than arbitration is very much the preferred method of alternative dispute resolution (“ADR”).
    [Show full text]
  • THE RISE of COMMERCIAL MEDIATION in AUSTRALIA- REFLECTIONS and the CHALLENGES AHEAD Greg Rooney
    THE RISE OF COMMERCIAL MEDIATION IN AUSTRALIA- REFLECTIONS AND THE CHALLENGES AHEAD Greg Rooney Abstract The last 25 years has seen a growth in the use of mediation in the civil and commercial jurisdictions of the states and territories in Australia. There is now a robust mediation market with “virtually no civil case going to trial without at least one round of mediation” This paper will chart the rise of commercial mediation in Australia over the last 25 years. It will also reflect on a number of issues that have underpinned this growth including why mediation works, the source of the mediator’s power and why people get trapped in conflict. It will examine the emerging collaborative economy particularly the direct link between risk-taking and innovation, essential for maintaining the increasingly short time at the top in the 21st Century economy. It is through the ability of management and external advisors, including lawyers, to creatively manage the tension created by risk-taking that best fosters a culture of trust and innovation. If lawyers do not adjust their adversarial culture and develop the soft skills necessary to meet these challenges organisations will find people with degrees in dispute resolution, business, commerce, psychology and engineering that will. Overview The last 25 years has seen a growth in the use of mediation in the civil and commercial jurisdictions of the states and territories in Australia. There is now a robust mediation market with “virtually no civil case going to trial without at least one round of mediation” (Annual Report of the Supreme Court of Victoria, 2009 -2010: 46).
    [Show full text]
  • Alternative Dispute Resolution – a Misnomer?
    Australian Disputes Centre ADR Address 2018 Alternative Dispute Resolution - A Misnomer? Address by Wayne Martin AC Perth 6 March 2018 Alternative Dispute Resolution - A Misnomer? Wayne Martin AC Introduction I am greatly honoured to have been invited to give the inaugural annual ADR address, which I understand is to be presented annually by the Australian Disputes Centre. I thank Deborah Lockhart, the CEO of the Centre, and her team, for the considerable effort that they have put into the organisation of this event. The national approach and operation of the Centre is evident in its choice of Perth as the venue for this address. At the risk of sounding parochial, the fact that ADR programmes have been an integrated component of all Western Australia's civil courts for decades, and that the national award was presented to the Supreme Court of Western Australia last year for its ADR programme, may have influenced this selection. The Traditional Owners Before going any further, I acknowledge the traditional owners of the lands on which we meet, the Whadjuk people who form part of the great Noongar clan of south-western Australia, and pay my respects to their Elders past and present and acknowledge their continuing stewardship of these lands. Alternative Dispute Resolution - A Misnomer The expression 'alternative dispute resolution' and its associated acronym ADR are now too well established to be changed. This is unfortunate. The terminology appears to have been adopted by those who saw the various techniques and processes collected under this heading as being in competition with curial adjudication, with curial adjudication being considered the mainstream or conventional method of dispute resolution, and ADR as the alternative or less conventional or side stream method.
    [Show full text]
  • Insights from Australian Mediators About Mediation and Access to Justice
    Insights from Australian mediators about mediation and access to justice Mary Anne Noone and Dr Lola Akin Ojelabi* This article details a recent research project in which 21 experienced mediators were interviewed about access to justice in mediation within the civil justice system. Interviewees were presented with hypothetical mediation scenarios, and were asked to identify potential practical and ethical problems in relation to procedural fairness, and parties’ ability to access information and advice. The interviews revealed that a thorough intake process, and ensuring all parties have good access to legal advice and information, are crucial to ensuring a fair mediation process. INTRODUCTION A critical claim of the integration of mediation into the civil justice system is to enhance access to justice. However, the connection between the institutionalisation of mediation and improved access to justice remains unproven, particularly when access to justice is conceived as including increased opportunity to gain entry into the justice system and obtaining fair outcomes.1 In a recent research project, the authors interviewed 21 experienced and expert mediators to harness their wisdom and views on issues of mediation and justice. Five hypothetical scenarios were presented to the mediators and their reactions to potential practical and ethical issues that raised concerns about justice in mediations were sought. The mediators’ responses indicated that, despite a common set of standards and the agreed critical value of self-determination in mediation, mediators have varying moral compasses which lead to a variety of responses. However, interviewees agreed a proper intake process plays a critical role in ensuring procedural fairness in mediation, as well as the parties’ ability to access legal advice and information.
    [Show full text]
  • Mediation in Australia
    MEDIATION MEDIATION IN Alternative dispute resolution There have been perhaps two AUSTRALIA (including arbitration, mediation principal drivers for the popularity and conciliation) in Australia of mediation in Australia. The first Monica Del-Villar has a long and distinguished is the perceived benefit of using Mallesons Stephen Jaques history. The framers of Australia’s flexible negotiation processes federal constitution expressly to address complex technical included ‘conciliation’ as a issues. In fields such as building head of legislative power for the and construction, this is an resolution of industrial disputes. important motivator because In turn, alternative dispute it reduces the risk involved in resolution processes underpinned submitting fine factual disputes Australia’s workplace relations to the rather blunt remedies system throughout the 20th available at law. In commercial century, and thus played a key markets such as construction, role in some of the most bitterly– where there are increasingly few fought legal battles Australia has significant players following a witnessed. decade of mergers and corporate rationalisation, mediation also THE DEVELOPMENT OF has the advantage of preserving MEDIATION IN AUSTRALIA relationships for the future and Australia is a federation of six minimising publicity. States and a number of Federal The full–scale trial can no longer Territories. It was formed in be regarded as the paradigm 1901. By virtue of its British method of dispute resolution, colonial origins and lessons even for complex disputes from the American experience involving subjects of high value of the 1800s, it has a legal ... alternative means of dispute system that mixes elements resolution, conducted pursuant of the Westminster and United to the private agreement of the States constitutional systems.
    [Show full text]
  • Australasian Dispute Resolution Journal
    Australasian Dispute Resolution Journal EDITOR Ruth Charlton THOMSON REUTERS EDITOR Michelle Flores CHIEF EDITORIAL CONSULTANT Professor David Spencer, Associate Dean of Learning and Teaching, Faculty of Law and Business, Australian Catholic University EDITORIAL CONSULTANTS Dr Tom Altobelli, Judge, Federal Circuit Court of Australia Mr Alex Fawke, Managing Associate, Dispute Resolution Department, Linklaters LLP, London Dr Katherine Johnson, Barrister and Mediator, Sydney Professor Joel Lee Tye Beng, Professor, Faculty of Law, National University of Singapore Mr Paul A Lewis, Partner, Gadens Lawyers, Sydney Dr Lola Akin Ojelabi, Senior Lecturer and Director of Programs, School of Law, La Trobe University, Melbourne The mode of citation of this volume is (2019) 29 ADRJ page Subscription Information For further information on how to subscribe Visit: sites.thomsonreuters.com.au/journals/subscribe-or-purchase Tel: 1300 304 195 Email: [email protected] For further information on our journals Visit the Journals Talk website at: sites.thomsonreuters.com.au/journals Editorial inquiries Tel: (02) 8587 7000 Customer service and sales inquiries Tel: 1300 304 195 Web: legal.thomsonreuters.com.au Email: [email protected] Indexing/Abstracting Services The following websites contain details of material published in the Journal: • http://legal.thomsonreuters.com.au/australian-legal-journals-index- online/productdetail/85643 (Australian Legal Journals Index) • https://clarivate.com/products/web-of-science/ (Web of Science Emerging Sources Citation Index). The Australian Legal Journals Index is an online legal database produced by Thomson Reuters and is available via subscription. The ESCI (Emerging Sources Citation Index) is an online database formerly produced by Thomson Reuters and now maintained by Clarivate Analytics.
    [Show full text]
  • MEDIATION CLAUSES Enforceability and Impact
    (2019) 31 SAcLJ 598 MEDIATION CLAUSES Enforceability and Impact Mediation can only begin and continue on the basis of the parties’ voluntary participation. Therefore, it is important to have clarity regarding the parties’ desire to submit their dispute to mediation. This article adopts an international comparative perspective in analysing the issues that arise when parties dispute the validity and effect of their mediation clause. Mediation clauses give rise to three clear points for discussion: When are these agreements binding on the parties; to what extent should these agreements be enforced; and how should breaches of these agreements be remedied? Maryam SALEHIJAM LLB (European Law) (Maastricht), LLM (International Laws) (Maastricht); PhD Researcher (Ghent); Visiting Researcher at Stanford Law School and the University of Missouri. I. Introduction 1 A private mediation – as opposed to court-annexed – can only begin and continue on the basis of the parties’ voluntary participation. Therefore, it is important to have clarity regarding the parties’ desire to submit their dispute to mediation.1 The consent of the parties to pursue mediation can be contained in an individually negotiated contract or in a mediation clause within a commercial contract.2 Often, these agreements require the parties to submit their dispute to mediation and, at the same time, prohibit the parties from starting arbitration or litigation while mediation is pending.3 1 Carlos Esplugues, “General Report: New Developments in Civil and Commercial Mediation – Global Comparative Perspectives” in New Developments in Civil and Commercial Mediation: Global Comparative Perspectives (Carlos Esplugues & Louis Marquis eds) (New York: Springer, 2015) at p 28. 2 See also Maud Piers, “Europe’s Role in Alternative Dispute Resolution: Off to a Good Start?” (2014) J Disp Resol 269 at 283.
    [Show full text]
  • The Thoughtful Integration of Mediation Into Bilateral Investment Treaty Arbitration
    Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2013 The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration Nancy A. Welsh Texas A&M University School of Law, [email protected] Andrea Kupfer Schneider Marquette University Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Dispute Resolution and Arbitration Commons, and the International Law Commons Recommended Citation Nancy A. Welsh & Andrea K. Schneider, The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration, 18 Harv. Negot. L. Rev. 71 (2013). Available at: https://scholarship.law.tamu.edu/facscholar/939 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitrationi Nancy A. Welsh2 and Andrea Kupfer Schneidera ABSTRACT While the current system of investment treaty arbitration has definitely improved upon the "gunboat diplomacy" used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increas- ingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration.
    [Show full text]