Mediating NAFTA Disputes: So, You’ve Never Seen a Mediation? - Commercial Mediation and Arbitration in the NAFTA Countries
Ann L. MacNaughton
Ann L. MacNaughton is currently the Director of Arthur Andersen LLP, Dispute Resolution Strategies Practice - Southwest Region; Strategy, Finance & Economics ("SFE") Consulting Practice. Ms. MacNaughton has more than 20 years of complex commercial dispute resolution experience (negotiation, litigation, arbitration, mediation).
Originally from Commercial Mediation and Arbitration in the NAFTA Countries
So, you've never seen a mediation? In the U.S.A., use of mediation to resolve commercial disputes is continuing to increase.3 What exactly is mediation? How does it differ from arbitration? From conciliation?
Mediation has been defined as "a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them."4 Mediators are facilitators, not decision-makers. Mediators are not empowered to decide how a dispute will be settled. Unlike arbitration, where disputants use one or more "third parties" to decide who is right and who is wrong, disputants should consider mediation when they want outside problem-solving support, or assistance facilitating their own negotiation of a mutually acceptable solution. Unlike conciliation, mediators typically do not offer even non-binding opinions.5
Ex parte communication, which often is forbidden in arbitration so as to avoid unfair influence over an arbitrator's decision, typically is encouraged as part of the commercial mediation process. Mediation is a much less formal process, both as to process and also structure. The mediator may suggest groundrules, but the parties must agree to be bound by them.
If mediation has no formal rules of discovery or procedure, how does one prepare appropriately for mediation? How does one manage the mediation process? This paper provides a short overview of what mediation is, and what it is not, and then describes five steps for mediating cross-national commercial disputes such as those that may arise under the North American Free Trade Agreement:
1. Selecting an appropriate mediation process;
2. Selecting an appropriate neutral;
3. Negotiating groundrules;
4. Managing emotional and values conflicts; and
5. Mapping conflicts.