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Realizing the Gap Between Rationality and Information


Elayne E. Greenberg


July 17, 2017

The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade (hereinafter UNICITRAL) Working Group II (Arbitration and Conciliation) so that the Working Group could better assess whether, in fact, there is a need for a new UNCITRAL instrument to enforce global commercial mediation agreements.

Professor Strong’s research offers insightful nuggets about international commercial mediation that merit further exploration. For example, her research showed that pre-dispute mediation clauses play a central role in incentivizing the increased use of international commercial mediation. In another highlighted contribution, survey respondents reported time and money to be the top two drivers that contributed to their decision to use international commercial mediation. A third insight is that surveyed participants value international commercial mediation for different reasons when they are asked to prospectively opine about its value versus when asked to opine about mediation’s value when deciding to use mediation.

Although these insights are noteworthy, they do not justify broad application because of methodological weaknesses in the research. To strengthen future research, I propose three fundamental research design modifications. First, the researcher should take affirmative steps to minimize the U.S.-centric bias around mediation. Second, the sampled pool should be more representative of those stakeholders who might be affected by the passage of the proposed global treaty. Third, the label used to describe this neutral facilitated process should be clearly defined to minimize the debate over whether mediation and conciliation are the same or a different dispute resolution procedure.