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Drafting For International Dispute Resolution: Mediation, Forum Selection, and Arbitration Clauses

R. Doak Bishop, Proceedings of 44th Annual Rocky Mountain Mineral Law Institute (1998)

Long employed in diplomatic matters, mediation has been used in the past several years to resolve transnational business disputes before initiating binding arbitration or litigation.1 This alternative is particularly popular among Asian cultures.2

When international parties use mediation exclusively, there is no guarantee of a binding or definitive outcome.3 If mediation fails, however, the parties are free to pursue other methods of dispute resolution, such as traditional litigation or arbitration.

Some international dispute resolution organizations offer procedural rules for mediation. The following organizations have promulgated mediation or conciliation rules: the International Chamber of Commerce (ICC) Conciliation Rules, the United Nations Commission on International Trade Law (UNCITRAL) Conciliation Rules and the Commercial Arbitration and Mediation Center for the Americas (CAMCA) Mediation Rules. But there presently exists no consensus about mediation procedure, and many of the rules remain vague about procedural issues. For example, the mediator's duties are not detailed specifically.4 The International Chamber of Commerce Rules of Optional Conciliation merely state that the mediator has discretion to conduct the [8-4] proceedings as he or she sees fit.5 The only restriction imposed on the mediator by many of these rules is that he or she operate und