Originally from World Arbitration and Mediation Review

The Use of Summary Arbitral Proceedings to Enforce Mediated
Settlements
by
Richard W. Mitchell
When an arbitrable international business dispute arises, mediation
should be among the first tactical options of any litigator worldwide.
After all, mediation has proven itself an incredibly effective alternative in
the adversarial systems of litigious countries like the United States. For
intra-national commercial disputes, the economic and social efficacy of a
mediated settlement over a protracted court fight are well known and often
cited by mediators. The inherent advantages of the mediation process
would be, in theory, significantly greater in the context of an international
commercial conflict. In fact, mediation appears tailor-made for the
complexities of cross-border conflicts. Many courts that populate our
global economy are infamous for unpredictable legal decisions, delays that
can span a decade, corrupt court officials, and rights to endless appeal.
Cultural disparities can also create a labyrinth for any lawyer faced with
even a simple breach of contract action overseas. International arbitration
proceedings, designed to avoid many of the aforesaid challenges,
sometimes also succumb to costs and delays that are perhaps inherent in
any formal (and fair) fact-finding/decision-making process. Mediation
affords parties the flexibility, speed, economy, and certainty (as to
process) critical to the rapid-fire pace of international business. Despite
the steadfast optimism of mediators, however, mediation provisions are
not yet standard fare in international contracts. Whatever its potential as a
dispute resolution alternative, mediation has been slow to achieve the
international acceptance of arbitration in the commercial sphere. There
must be a reason that contract drafters and litigators remain skittish. The
questions, then, for mediation advocates are: what is taking transactional
attorneys so long to “see the light” and why is mediation not yet the
standard for resolving international contract disputes?
One possible answer is that international lawyers have one
compelling reason to reject mediation: In international cases, a party
attempting to enforce a mediated settlement will often be constrained to
engage the same legal system it hoped to avoid in the first place. In the
United States, a party can reasonably expect a court to enforce a
settlement agreement that meets basic contract requirements. Outside a
strong rule of law environment, however, a mediated agreement may not
be worth the marbled, 20-lb. bond paper on which it is printed. After a
successful mediation in a foreign land, while a sanguine mediator is still
basking in the glow of success, a battle-hardened and seasoned litigator is