University of California Irvine, School of Law; Georgetown University Law Center
September 10, 2015
Chapter 13 in: Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2014, edited by Arthur Rovine, Brill-Nijhoff, Leiden and Boston, 2015, Forthcoming
UC Irvine School of Law Research Paper No. 2015-80
The use of mediation in private and public disputes has increased exponentially in recent decades around the world. This book chapter reviews the variations in the uptake of and resistance to mediation (in both court-annexed and private settings) around the world and suggests that there are a variety of structural reasons for variations in the use, promotion and rejection of mediative processes, in both nation-state and international or cross-border settings, including legal system variation, economic incentives and disincentives, regulatory variations, and most controversially, social and legal cultural factors. The essay suggests a variety of somewhat overlapping cultural “nodes” that influence the forms and acceptability of mediation use, ranging from legal and social cultures that are argumentative, adversarial, face-saving or so-called “harmony” cultures, dialogic, transitional, or conversational cultures, and hybrid or cosmopolitan cultures. The uses of mediation in these settings is contrasted to both litigation and arbitration, which unlike mediation (so far), have formal mechanisms for enforcement of judgments or awards (though legal doctrines and treaties, such as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards). The use of mediation for a variety of different animating purposes, therefore, varies for both formal legal and structural reasons, as well as for more sociological and illusive cultural patterns in methods of dispute resolution in any given society.