As American businesses increasingly find themselves involved in cross-border transactions, business litigators correspondingly need to be equipped to help resolve disputes with foreign entities. While practices and procedures for much of litigation involving non-U.S. parties are well defined, mediation largely remains a rather murky area of international dispute resolution.

In contrast to U.S. practice, mediation is uncommon in many parts of the world. Accordingly, it may be beneficial to introduce mediation as a dispute resolution tool in contracts involving foreign parties or in negotiations when a dispute arises out of a cross-border deal. But before international companies can be expected to buy into the process, a common definition of the process must be shared. A primer on alternative dispute resolution offered by the International Institute for Conflict Prevention and Resolution provides a no-frills definition of mediation that captures the common understanding prevalent in the United States:

Mediation is facilitated negotiation, whose object is the consensual resolution of a dispute on terms that the parties themselves agree upon. It is a form of alternative dispute resolution in which a neutral party (a mediator) selected by the parties seeks to determine the interests of the parties, discover which of these interests may be shared, and alert them to a resolution that may further those interests.

Read original article


Tags: