International Mediation Basics - Chapter II.1 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
Robert B. Davidson is a full-time arbitrator and mediator, 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.
Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
This chapter discusses the differences between domestic and international commercial mediation, which must be addressed when agreeing to an international mediation, such as the choice of the mediator, the style of the mediation, the use of interpreters (and how to effectively use them), crosscultural differences, and enforcing the mediation agreement. The chapter also addresses the definition of mediation, the use of arbitrators as mediators, and drafting the mediation clause.
§ 1.01 Introduction
“Mediation” is also commonly referred to internationally as “conciliation.” Perhaps ten years ago, “conciliation” was a more familiar term in the international commercial context than mediation, although today there is little substantive significance in the use of one term rather than the other. Attempts to distinguish between the two tend only to compound confusion. Donahey suggests that ‘practitioners from other countries’ often make a distinction ‘based on the degree of involvement of the mediator or conciliator’: While a mediator attempts to ‘bring the parties together to arrive at their own settlement of the dispute,’ a conciliator, on the other hand, will ‘evaluate the dispute and reach his or her own view as to a just resolution of the controversy,’ and then ‘propose terms of settlement based on that understanding.’1 That quote, however, is almost 20 years old and much has changed in the mediation field since then.
§ 1.01 Introduction
§ 1.02 What is Mediation?
[1] Characteristics
[2] The Process
§ 1.03 Advantages and Disadvantages of Mediation as a Settlement Process
[1] Advantages
[a] Custom-Designed Solutions
[b] Cost
[c] Speed
[d] Preserving Relationships
[e] Familiarity
[f] Enforcement
[2] Disadvantages
§ 1.04 Distinctive Issues When Mediating International Business Disputes
[1] Convening a Mediation Session Can Be More Difficult and Costly
[a] Practical Problems in Convening Mediations
[b] Technological Options for Reducing the Costs
[2] Selecting a Mediator for an International Dispute Can Be More Complicated
[a] Neutral, Third-Country Mediator
[b] Co-mediators
[c] Local Mediator
[d] Mediator Appointed in Accordance with Parties’ Agreement
[3] Style of Mediator Needs to Be Clarified to Avoid Cross-Cultural Confusion
[4] Confidentiality of the Mediation Process Can Be Less Secure
[5] Interpreter May Be Needed
[6] Cross-Cultural Differences Can Impede the Mediation
[a] What Is a Cultural Difference?
[b] Six-Step Approach to Identifying Cultural Behavior
[i] Cultural Conceptual Framework
[ii] Understanding One’s Own Culture
[iii] Investigate the Negotiator’s Culture
[iv] Keep an Open Mind
[v] Evaluate the Other Side’s Negotiating Behavior
[vi] Bridge Any Cultural Gaps
[7] Enforcing Settlement Agreements Requires Special Attention
§ 1.05 Arbitrators Settling Cases
§ 1.06 Mediators Acting as Arbitrators
§ 1.07 Working with an Interpreter
[1] Hire Your Own Interpreter
[2] Meet with the Interpreter before the Negotiation
[3] When Speaking, Look Directly at the Other Party, Not the Interpreter. When Listening, Look Directly at the Other Party, Not the Interpreter
[4] Pay Attention When the Interpreter or the Other Party Is Speaking in the Other Language
[5] Speak in Simple Sentences without Jargon, Slang, Idioms, and Culturally-Laden References
[6] Speak Slowly. Pause Often but Not before Completing a Thought International Mediation Basics II.1.01 477
[7] Try to Gauge the Listener’s Reaction
[8] Respect the Interpreter
§ 1.08 Drafting an International Mediation Clause
[1] Thoughts on Selection of the Basic Clause
[2] Procedures for Selecting the Mediator
[3] Style of the Mediation
[4] Confidentiality Provisions
[5] Language
[6] Location
[7] Costs