Originally from American Review of International Arbitration - ARIA

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A. Introduction

Mediation is generally understood as a non-binding, voluntary (dispute) settlement process. It is still gaining in popularity in the United States and elsewhere. It is not a substitute for court adjudication, but it enhances the possibility that the parties will settle their dispute by way of mutually acceptable agreement, rather than by a binding third-party order. International arbitration, on the other hand, is considered a substitute for court adjudication. Its goal is primarily to overcome the dangers and problems related to international litigation. It is submitted that a combination of these processes should be aimed for in order to achieve the best of both systems in resolving international disputes.

Med-arb is the abbreviated term for mediation combined with arbitration. In the first part of this paper (Section I) I will discuss the goals and the possible problems of med-arb. It is important to keep the fundamental principles of “mediation” and “international arbitration” in mind in order to explore what med-arb in international arbitration is or should be. I will therefore start with a summary of the goals and ground rules of “mediation” and “international arbitration” and then explore the goals of a “med-arb” process. This will be followed by an examination of the format and the genuine problems of the med-arb process in its traditional meaning. That process shall be called the “original med-arb” process. Subsequently I will discuss various ways to combine mediation and arbitration and evaluate their advantages and disadvantages compared to the “original med-arb” process.