A Strategic Functionalist Approach to International Commercial Mediation
Icfai Journal of Alternative Dispute Resolution, Vol. VII, No. 2, pp. 37-58, 2008
Transnational Dispute Management (Special Issue on Arbitrator Bias), Vol. 5, No. 4, July 2008
29 Pages Posted: 21 Jun 2007 Last revised: 27 Nov 2008
Date Written: June 19, 2007
Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations. This paper considers whether International Mediation is a viable Dispute Resolution Mechanism ('DRM') alternative to litigation or arbitration based upon a new theory of 'strategic functionalism' defined as follows:
The Form is a function of the Content and Process where: 1) The Form = the advocacy/negotiation tactics; 2) The Content = the advocacy/negotiation strategy; and 3) The Process = the dispute resolution system.
In particular, the advocacy/negotiation tactics (based upon rules of engagement, including mediator orientations, procedural and evidentiary rules) to be employed will be determined not only by the overall mediation strategy (informed by substantive legal principles, domestic, international and/or transnational public policy and client-focused interests) but also the applicable process (litigation, arbitration or mediation systems) to achieve objective resolution of the dispute. The effect of decision-making and behavioural biases, including System Justification Theory, will also be considered.
Keywords: strategic functionalism, international, mediation, arbitration, litigation, cognitive bias, system justification theory, UNCITRAL Model Law on International Commercial Conciliation, harmonization, unification, private international law, public international law
JEL Classification: F02, F23, K12, K30, K33, K41
Suggested Citation: Suggested Citation