With high cost and negative publicity associated with litigation, mediation has been embraced as a popular means of resolving local disputes. In the international sphere however, arbitration seems to be the preferred option for solving disputes. Due to the fact that arbitration is an expensive process, there is need for a viable alternative for resolving disputes without the adversarial nature of litigation and arbitration, but with the involvement of a neutral third party, the mediator. This paper will discuss what mediation means and how the mediation process works. The issue of relevance of mediation to international disputes will be explored. An attempt will be made to argue that mediation is better than arbitration in resolving international disputes. The conclusion will highlight the limits of the mediation process
TABLE OF CONTENT
LIST OF ABBREVIATIONS
LIST OF TABLES, GRAPHS AND CHARTS
CHAPTER 1
1.1 INTRODUCTION
CHAPTER 2 PRACTICE OF MEDIATION
2.1 MEANING OF MEDIATION
2.2 THE ROLE OF THE MEDIATOR
CHAPTER 3 HOW DOES MEDIATION WORK?
3.1 COMMENCING THE MEDIATION PROCESS
3.2 DEFINING ISSUES AND SETTING THE AGENDA
3.3 UNCOVERING HIDDEN INTERESTS OF THE DISPUTING PARTIES
3.4 GENERATING OPTIONS FOR SETTLEMENT
3.5 ASSESSING OPTIONS FOR SETTLEMENT
3.6 FINAL BARGAINING AND SETTLEMENT
CHAPTER 4 PROS AND CONS OF MEDIATION
4.1 MEDIATION COMPARED TO ARBITRATION
4.2 LIMITATIONS OF MEDIATION
CHAPTER 5 CONCLUSION
REFERENCES
PRIMARY SOURCES
1.1 International Decisions
SECONDARY SOURCES
2.1 Books
2.2 Articles
IN A PERIODICAL
2.3 OTHER
LIST OF ABBREVIATIONS
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LIST OF TABLES, GRAPHS AND CHARTS
FIGURE 1: CASES MEDIATED BY CEDR... page 17
FIGURE 2: STATISTICS OF CASES MEDIATED BY CEDR.page 17
CHAPTER 1
1.1 INTRODUCTION
In everyday business relations, conflicts are bound to arise as a result of disagreements, misunderstanding and breaches of contract. The way and manner by which conflicts are managed remains a crucial issue in any organisation.
In every country, there are a substantial number of foreign investors who have made significant capital commitments and have entered into several contracts with local companies and government agencies. When disputes arise, managers of organisations want such disagreements dealt with in an effective and timely fashion with the least possible risk and cost implications for the organisation.
Normally, contracts provide for a cooling-off period in the event of disputes arising as well as provisions for negotiation, mediation and eventually the more legal means of arbitration and litigation can be pursued to settle disputes. Arbitration, being a dispute settlement mechanism that is more like litigation is adversarial, costly and likely to disrupt or affect long term business relations[1].
This brings us to the issue of mediation. Is mediation, a dispute settlement mechanism which involves a neutral third party intervening to help the parties voluntarily reach an amicable settlement[2] a viable option for conflict management? In national judicial systems, mediation is recently gaining prominence with ADR centres being established alongside local courts. In the international sphere, the understanding and exploration of mediation as a strategy for resolving disputes can bring about an enhancement of stability in commercial and investment relations as shall be discussed in this paper.
This paper will also discuss the mediation process by exploring the stages involved in the process as well as the role of the mediator. It shall be argued that mediation, if explored, is a more effective means of settling disputes in comparison to arbitration or litigation.[3]
The process of mediation involves the parties themselves, as active participants sitting down together, in a friendly atmosphere, under the guidance of the mediator to attempt to reach a settlement. The mediator also engages in separate caucusing with the parties to gain more information (in confidence) from the parties which they might not want to disclose to each other[4]. As shall be discussed, therefore, mediation is a more thorough system of understanding disputes. The whole mediation process is voluntary and if a settlement is reached, it will be based on the parties’ terms, not one imposed by a judge or a panel of arbiters.
It must, however, be noted that not all cases are best suited for mediation. It is also worth noting that disputes that are resolved through mediation are not normally published; accurate statistics regarding the success or otherwise of mediation practice cannot be said to be readily available.
CHAPTER 2
PRACTICE OF MEDIATION
2.1 MEANING OF MEDIATION
Mediation is the intervention into a dispute by an impartial and neutral third party (with the consent of the parties involved in a dispute) who has no authority to decide on the issues in dispute but to assist the parties in voluntarily reaching a mutually acceptable settlement.[5]
Where parties to a dispute are unable to resolve disagreements through negotiations, a third party neutral, either by invitation of one or more of the parties, or through his or her own initiative, may step in to act with both parties in an attempt to reach an amicable settlement.[6] Where the third party neutral only acts to encourage the parties to come to the negotiating table, he is said to be utilising his or her good offices in an attempt to help the parties resolve a dispute. Good offices, quite like mediation is, therefore, a branch of negotiation, the difference being that the mediator plays a more active role of suggesting proposals to the parties for possible settlement.[7]
Mediation gives the parties the option to either accept or reject the settlement proposals at the end of the process which is an advantage to disputing parties as they are granted control over the process.[8] The parties also have a choice of reaching a negotiated settlement even before the mediation process is concluded. Most importantly, however, is the fact that mediation is confidential and thus not open to public scrutiny. The parties are thus assured of the discreetness of information disclosed and discussed during the mediation process.
The mediator may be an individual, a state or even an international organisation.[9] The Iran/USA hostage dispute for example was resolved through mediation pursued by Algeria, a move that might have averted a potential war.[10]
2.2 THE ROLE OF THE MEDIATOR
The assistance of third parties to resolve commercial and investment disputes is well recognised as in other arenas of conflicts such as family and labour related disputes. In many national judicial systems, judges may request parties to mediate on certain cases where such cases are suited for mediation. In international commerce, however, arbitration seems to be the favoured means of resolving disputes. Since mediation is a very well established avenue for resolving domestic disputes in modern times, can parties to an international conflicts transfer this success to their disputes.
The arbitration process is quite similar to the court process. The arbitrator takes submissions from the parties and issues an award based on the merits of the counsels’ submissions. The mediator on the other hand plays a more pro-active role. He looks to the parties interests, finds out and explains to parties each other’s point of argument. The mediator is not restricted by any constraints, as he can attempt to understand the parties’ prejudices, go behind an organisation’s internal politics (where the organisation is a party to a dispute) and examine cultural biases.[11]
A highly skill mediator will encourage the parties to open up during caucusing and explain their side of the story thoroughly and even indicate areas which they feel they can make compromises. In arbitration, none of the parties is really interested in saying what exactly happened leading to a dispute, but in mediation, the mediator can make the parties feel comfortable to disclose information which they will otherwise be reluctant to discuss.[12]
[...]
[1] Frank, S.D., Integrating Investment Treaty Conflict and Dispute Systems Design, 92(1), Minn. Law Rev., p 161- 230 (2007).
[2] Christopher, W., Moore, The Mediation Process, p 14 (1st ed), ( Boulder, Colorado, USA: Jossey-Bass Inc. Publishing, 1986).
[3] Walde, T.W., Mediation/Alternative Dispute Resolution in the Oil, Gas and Energy Transactions: Superior to Arbitration/ Litigation from a Commercial and Management Perspective, 2, OGEL (2003) www.ogel.org. ( last visited on 3/1/2009 ).
[4] Savun, B., Information, Bias, and Mediation Success, 52(1), Int. Stud. Quart., p25-47 (2008).
[5] Supra at note 2.
[6] Jacob, B., Resolving International Conflicts: Theory and Practice of Mediation ( Boulder, Colorado, USA: Lynne Riener publications, 1996).
[7] Merrills, G., International Dispute Settlement , p 27 (3rd ed) (Cambridge, UK: Cambridge University Press, 2002).
[8] Ibid at p 28.
[9] Lawrence, F., Signals of War. The Falklands Conflict of 1982 (Princeton, New Jersey, USA: Princeton University Press, 1991)
[10] Supra at note 7.
[11] Walde, T.W., Pro-active Mediation of International Business and Investment Disputes Involving Long-term Contracts: From Zero-Sum Litigation to efficient Dispute Management, vol . 4, OGEL (2003), www.ogel.org. (last visited on 4/1/2009).
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This language preview provides a comprehensive overview of a text on mediation. It includes the table of contents, objectives and key themes, chapter summaries, and keywords to give readers an insight into the content and structure of the full text.
What topics are covered in the table of contents?
The table of contents lists chapters covering the practice of mediation, how mediation works, the pros and cons of mediation compared to arbitration, and a conclusion. Specific sections include the meaning of mediation, the role of the mediator, commencing the mediation process, defining issues, uncovering hidden interests, generating options for settlement, assessing options, and final bargaining.
What does the introduction section discuss?
The introduction (Chapter 1) discusses the inevitability of conflicts in business relations and the importance of effective conflict management, especially in the context of foreign investments and contracts. It raises the question of whether mediation is a viable option for conflict management compared to arbitration and litigation.
How does the text define mediation?
The text (Chapter 2) defines mediation as the intervention into a dispute by an impartial and neutral third party, with the consent of the parties involved, who assists the parties in voluntarily reaching a mutually acceptable settlement. The neutral party is referred to as the mediator.
What is the role of the mediator in the mediation process?
The mediator plays a proactive role in understanding the interests of the parties, finding out and explaining each party’s point of argument. They are not restricted by constraints and can explore parties' prejudices, internal politics (within organizations), and cultural biases to facilitate a settlement.
What are the advantages of mediation over arbitration?
Mediation is highlighted as a more thorough system of understanding disputes because it involves the parties themselves, as active participants, sitting down together in a friendly atmosphere under the guidance of the mediator. It is voluntary, confidential, and allows the parties to control the process, unlike the more adversarial and costly nature of arbitration.
Are there any limitations to mediation mentioned in the text?
Yes, the text notes that not all cases are best suited for mediation. It also points out that disputes resolved through mediation are not normally published, making it difficult to obtain accurate statistics on the success of mediation practice.
What is the difference between mediation and using "good offices"?
Both mediation and good offices are branches of negotiation. However, the mediator plays a more active role of suggesting proposals to the parties for possible settlement, whereas someone employing good offices primarily encourages the parties to come to the negotiating table.
Does the text mention any specific examples of successful mediation?
The text mentions the Iran/USA hostage dispute, which was resolved through mediation pursued by Algeria, as an example of mediation averting a potential war.
Where are references or source materials found?
The source material is referenced at the end, categorized as primary sources (international decisions) and secondary sources (books, articles in periodicals, and other sources).
- Quote paper
- Shamsu Yahaya (Author), 2009, Is mediation a viable option for resolving international disputes?, Munich, GRIN Verlag, https://www.grin.com/document/141864