Mediation is undoubtedly the number one alternative method for resolving commercial disputes both domestically and internationally. Development of mediation in various jurisdictions is often driven by reforms of the civil justice system which are meant to result in cheaper & faster alternatives to litigation.
Despite the fact that the vast majority of EU mediation services operate domestically, there is a tendency to use this method for resolving international disputes as well. Though EU legislation mainly applies to resolving civil & commercial disputes through international mediation, some EU member states have adopted local legislation, which also provides for domestic mediation. In some EU countries mediation is purely voluntary while in others only lawyers can be mediators. In some EU countries, there no restrictions on mediation practices at all.
In an attempt to reduce those differences, the UIA launched the World Mediation Centers Forum which provides mediators with an opportunity to exchange their views on the future of of mediation and share best mediation practices. One of the most interesting aspects of the forum is that mediators get to compare the differences between national and international mediation. Some of its participants are of the opinion that mediation will soon evolve into a variation of non-binding arbitration. Others claim that mediation will end up being much simpler, focusing only on the main interests & needs of the parties.
Experienced international lawyers are able to recognize cultural differences existing between their clients & warn them of potential problems that may arise during mediation. However, it is the mediator himself who can resolve complex international disputes, especially those of them in which parties have different cultural backgrounds.
The key to success here is to try to gather as much information as possible through holding preliminary meetings or conducting telephone/video conferences. This should give the mediator some idea why the parties have failed to resolve a dispute through mediation, what their expectations are, how they can behave during mediation, and what they can achieve from mediation.
It is also important that the parties & their lawyers appoint a mediator of their choice, and not retain a mediator appointed by a specific institution. It is also important for the parties and their lawyers to choose a mediator with international experience who understands cultural differences & knows how to deal with them.
One of the main of settling international disputes through mediation is that it is non-binding & the parties can try out different solutions. It is only when the parties have reached a deal, set it down in writing & signed it that it becomes binding. However, in some jurisdictions, especially if there is a provision for multi-level dispute resolution, a mediation agreement can be converted into a binding arbitration award.
In most jurisdictions, mediation is a legally protected and confidential process. However, things can be different in different jurisdictions, so it is also important that the parties are aware of this. Therefore, it is preferable that mediation be carried out in a mediation-friendly jurisdiction, in order to provide maximum protection and give credibility to the process.
According to unofficial data, international mediation conducted by experienced mediators ends up being successful in 80% of cases. Mediation is increasingly becoming part of a multi-level dispute resolution process and is often used before parties resort to international arbitration. Mediation enables to maintain control over the outcome of the dispute and provides parties with an opportunity to come up with their own commercial decisions. It is also ideal for maintaining good business relations.
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