Originally from Dispute Resolution Journal

Mediation is an accepted item on the menu of commercial dispute resolution in the United States and many other common law jurisdictions. In contrast, the state of development of ADR and mediation in continental Europe is uneven and many years behind the United States. In these circumstances, how useful is it for the English or US legal adviser to draft a multi-tiered dispute resolution clause, committing their client to a period of mediation with a party from a jurisdiction where mediation might barely be known? To what extent is mediation better avoided where the parties do not share the same cultural perceptions of mediation? This article offers some guidelines for drafting multi-tiered dispute resolution clauses in international contracts between parties from different legal traditions.

Over the last two decades, alternative forms of dispute resolution (ADR), particularly mediation, have become an established feature of the landscape of commercial dispute resolution in the United States. Practitioners might hold different views as to the types of disputes best suited to mediation and the style of mediator they prefer. They may also differ in the amount of enthusiasm they have for the process generally. But all practitioners of commercial dispute resolution must not only be able to advise their clients about mediation (and other ADR processes), they must also know how mediation works and be able to participate in mediation on behalf of their clients.

In the United States, the acceptance of mediation can be seen in the many state mediation statutes, the existence of the Uniform Mediation Law (a model law prepared for enactment by U.S. states), and the numerous court-annexed mediation programs. There are codes of ethics for mediators that the many full- and part-time mediators must follow. Also, a great deal of literature on mediation and numerous seminars and courses exist on the techniques of mediation. In short, mediation is a thoroughly established part of ADR in the United States. While mediation is a more recent development in England (and other common law jurisdictions such as Australia and New Zealand), it has been well received there and is better known there than in continental Europe.