A Contribution to the Conversation on Mixing the Modes of Mediation and Arbitration: Of Definitional Consistency and Process Structure

Abstract

One of the trends that has been growing in importance in international commercial dispute resolution has been the combining and mixing of modes, particularly of mediation and arbitration. Surveys of users indicate that the reason for this growth has been the perception that mixing of non-adjudicative and adjudicative modes can help to achieve certain process goals, such as international enforceability, cost-effectiveness and relationship preservation. This article first suggests an approach towards articulating the myriad ways that mediation and arbitration may be combined, focusing on mediation followed by arbitration (med-arb), arbitration followed by mediation (arb-med), and opening mediation windows in the arbitration process (arb-med-arb). It then discusses which of these mixed mediation and arbitration processes best achieves the goals of international enforceability, cost-effectiveness and relationship preservation. It is hoped that this endeavour will contribute to a greater appreciation and understanding of how to best mix mediation and arbitration, whatever “best” may mean.

Keywords: international dispute resolution, med-arb, arb-med, arb-med-arb