What’s Brewing in the International Commercial Mediation Process: Differences from Domestic Mediation and Other Things Parties, Counsel, and Mediators Should Know - Chapter 22 - ICDR Handbook on International Arbitration & ADR - Third Edition
International commercial mediation has numerous characteristics that distinguish it from domestic mediation. As the name implies, “international” refers to a process with at least two parties from different countries. “Commercial” narrows the subject area of the process somewhat to the business relationship between the parties. International commercial mediations are often more complex with more participants than their domestic counterparts. They also often involve culture and language differences. These cases, by their very nature, tend to be lower-volume, higher-value cases than most civil mediations. This article briefly explores some of the elements that distinguish this type of mediation from its domestic counterpart.
I. Why Mediate?
First, international commercial mediations usually (though not always) happen as a result of the parties’ dispute resolution clause, either directly or indirectly. As mediator I have been retained to mediate international commercial disputes in four ways: (1) a “med-arb” resolution dispute clause (the most common way); (2) via a dispute resolution institution, such as the ICDR (International Centre for Dispute Resolution, the international arm of the American Arbitration Association), which actively promotes mediation as an option for parties with an ICDR arbitration clause; (3) on rare occasion from the courts, when an international commercial case is being litigated there, especially when the court has a mandatory mediation program; and (4) a direct approach from one party’s attorney (this method is often problematic because the other party may come to perceive that a mediator nominated by the opponent might not be neutral). But occasionally both parties will understand that this is not really the case and agree to use mediation services.