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Realizing Rationality: An Empirical Assessment of International Commercial Mediation


S. I. Strong


January 29, 2017

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) has taken up a proposal from the U.S. Government to consider whether a new treaty involving international commercial mediation is warranted.

As promising as these developments may seem, very little is actually known about how the international community uses and perceives mediation in the cross-border business context. This type of informational deficiency hinders individual and institutional actors’ ability to operate in a rational manner. This Article therefore analyzes findings from the first-ever large-scale empirical study on international commercial mediation, providing hard data about current behaviors, beliefs, and practices and testing fundamental theories about the use, nature, and future of this particular process.

This Article provides a comprehensive analysis of several core issues. After discussing the theoretical basis for international commercial mediation, the Article analyzes groundbreaking empirical data on the use and perception of international commercial mediation. This information provides parties, practitioners, and policymakers with a critical understanding of how international commercial mediation differs from domestic mediation and helps corporations and institutions make strategic decisions on both an individual and systemic level. The Article then considers various normative issues, including those directly related to ongoing negotiations at UNCITRAL regarding a new international treaty in this area of law. In so doing, the discussion provides unique empirical insights into how the people who are most closely involved with international commercial mediation believe the field should develop.

This Article provides the national and international legal communities with critical information about the world’s fastest growing dispute resolution device. As the first empirical study dedicated to this particular issue, this Article lays the groundwork for future scholarship and policy work in the area of international commercial and investment mediation. Furthermore, by (dis)proving a number of key theories regarding mediation, the discussion revolutionizes the way this process is conceptualized by legal academics. The broad scope of the analysis makes this material relevant not only to readers in the United States but also to audiences around the world.