Initiating an International Mediation - Chapter II.2 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
Robert B. Davidson is a Mediator and Arbitrator, and the Executive Director of JAMS Arbitration Practice. He has arbitrated approximately 70 cases as sole arbitrator and as a member of tripartite panels in both institutional and ad hoc settings. Over the course of his career as Partner at Baker & McKenzie, Mr. Davidson acted as counsel for clients in approximately 100 arbitrations involving a variety of disputes, including serving as lead counsel in numerous domestic and international arbitrations, including 11 cases before the Iran-U.S. Claims Tribunal (more than any other lawyer) and cases before the U.N. Compensation Commission. He is past Chair, of the Committee on Arbitration of the New York City Bar Association; a Fellow and Board Member, College of Commercial Arbitrators and a Fellow, American Bar Foundation.
This chapter outlines the steps and considerations for initiating a mediation of an international business dispute, including the form and timing of the request for mediation, and the selection of an administrating agency, the mediator, the language for the proceeding, the rules, and the venue. This chapter should be read in conjunction with sections II.1.06 and II.1.07 of this Work.
§ 2.01 Introduction
Practitioner’s Hint: Parties who wish to utilize mediation to resolve an international dispute will be faced with some administrative choices. Those choices include (a) whether to use an administrator; (b) who should initiate the process; (c) how to select the mediator; and (d) how to select the rules of the mediation.
Since mediation is a consensual process, the parties can tailor the process to suit their needs and interests. Whether a party is drafting a mediation clause to cover future disputes or is seeking mediation of a dispute that has arisen for which there is no contractual provision for mediation, the parties will normally be faced with four issues: (1) Whether to use an international administrator to oversee the process, (2) whether to jointly or individually initiate the mediation process (where a contract mandating mediation is not in place), (3) how to select the mediator, and (4) which rules should govern the mediation.
 Use of an Administrator
The initial choice facing a party considering the initiation of an international commercial mediation is whether to use an international administrator for mediation, or simply use an independent mediator without an administrative body supervising and assisting with the process.
There are several advantages to using an international administrative body. The administrative body will oversee the scheduling and other arrangements for the mediation (including facilities and payment procedures); the administrative body can assist in the selection of the mediator, and indeed provide quality control in the appointment of the mediator; the mediator can concomitantly be relieved of the burden of the administrative process; and a set of rules that guide and protect the parties with such things as confidentiality rules is usually in place.
§ 2.01 Introduction
 Use of an Administrator
 Submission of the Dispute to Mediation
 Selection of the Mediator
 Selection of the Rules for the Mediation
§ 2.02 Note Regarding Conciliation versus Mediation in International Mediation
§ 2.03 How International Mediation is Initiated
 Submission of a Dispute Pursuant to a Contract
 Submission of an Existing Dispute
 Request for Assistance from an International Administrator with Which the Parties Do Not Have a Contractual Relationship
 Examples of Rules for Initiating Mediation
[a] JAMS International Mediation Rules
[b] The International Chamber of Commerce
[c] American Arbitration Association (AAA)
 Timing of Request
§ 2.04 Institutional Organizations that Offer Mediation
 North America
 Latin America Specifically
§ 2.05 Case Value and Selection of the Administrator for the Mediation
§ 2.06 Maintaining the Mediator’s Neutral Role through an Administrator
§ 2.07 Selecting the Mediation Rules
 Rules of Administrators
[a] Centre for Dispute Resolution (CEDR), London, U.K.
[b] United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Conciliation
[c] Kuala Lumpur Regional Centre for Arbitration, Kuala Lumpur, Malaysia
 Contractual Provisions that Provide for Administrators
§ 2.08 Selecting the Mediator
 Process versus Subject Matter Expertise
 Experience with Diverse Legal Systems and Cultures
 Disclosure of Conflicts
 Use of Arbitrator as Mediator
 Use of Legal, Technical, or Other Experts to Assist the Mediator
§ 2.09 Rules on Confidentiality
§ 2.10 Selection of Language to Be Used in the Mediation
 Comfort of the Parties
[a] International Chamber of Commerce
[b] The World Intellectual Property Organization (WIPO), Geneva, Switzerland
§ 2.11 Selection of Site of the Mediation
 Examples of Rules for Selecting Sites
 Convenience of the Parties
 Amenities and Facilities
 Limited Use of Resorts
§ 2.12 Conclusion