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

See all articles by Antonin I. Pribetic

Antonin I. Pribetic

Ministry of the Attorney General -Crown Law Office -Civil

Date Written: June 19, 2007

Abstract

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

Pribetic, Antonin I., A Strategic Functionalist Approach to International Commercial Mediation (June 19, 2007). 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, Available at SSRN: https://ssrn.com/abstract=995338

Antonin I. Pribetic (Contact Author)

Ministry of the Attorney General -Crown Law Office -Civil

Ontario
Canada

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