Originally from American Review of International Arbitration - ARIA

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Buried in mediation rules can be found a few surprises, some desirable and some not. The rules, usually few in number and quite compact, can contain unexpected opportunities and pitfalls when developing a mediation representation plan.1 This article considers several distinctive issues2 that can arise when applying mediation rules to international mediations.

I. SELECTING A NEUTRAL MEDIATOR

How do you select a mediator in a cross-border dispute whom both sides view as neutral? Parties must be confident in the mediator’s neutrality so that they will trust disclosing information and trust the mediator’s initiatives. Even though professional mediators know to maintain scrupulously their neutrality, parties may still be skeptical of any mediator from the country of another party. Mediation rules occasionally include a default mediator selection process designed for parties from different countries.

The mediator from a third country approach is used in the UNCITRAL Model Law. It suggests that the person recommending a mediator “shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties."3