Beyond International Commercial Arbitration? The Promise of International Commercial Mediation
30 Pages Posted: 4 Dec 2013 Last revised: 24 Oct 2014
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes.
One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international commercial mediation can be said to be superior to international commercial arbitration.
That question is answered in a three-step analysis. First, this Essay outlines the unique characteristics of international commercial disputes to determine whether such matters are amenable to mediation. The discussion then considers what might motivate parties to use international commercial mediation if savings of time, cost and procedural formality are taken out of the equation. Finally, the Essay describes how public international law might be used to improve certain deficiencies in international commercial mediation. In so doing, the discussion aims to help parties conduct a realistic evaluation of the prospects of international commercial mediation and find a way to ensure the procedure’s long-term success.
Keywords: mediation, international commercial mediation, international commercial arbitration, mediation agreement, settlement agreement, New York Convention, commercial law, multiparty
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