Mediating International Commercial Disputes: Differences in U.S. and European Approaches

Dispute Resolution Journal, Aug-Oct 2005 by Cairns, David J A

2 Some Anglo-Saxon writers consider "conciliation" as a simply less fashionable synonym for mediation; others limit the term to certain styles of mediation: see Arthur Marriott Q.C & Henry Brown, ADR Principles and Practice ¶ 7-002 (2nd ed., London, 1999) (stating: "The term 'mediation' has tended to be used interchangeably with 'conciliation' although 'mediation' has become the preferred term. Sometimes mediation is understood to involve a process in which the mediation is more pro-active and evaluative than in conciliation; but sometimes the reverse usage is employed.").

3 Eric A. Schwarte, "International Conciliation and the ICC," 5 ICC Bull. 5-6 (Dec. 1994); on the early history of ICC conciliation, see also Steuart Hamilton, "ICC Conciliation: A Glimpse into History in Special Supplement," ICC Int'l Court of Arb. Bull. 23-30 (ADR-International Applications, Paris, ICC Publishing, 2001).

4 Schwarte, supra n.3, at 13.

5 Schwartz, supra n.3, at 17 (stating: "While going through the ICC's conciliation files, I have developed the sense that one of the reasons why there is not more international conciliation today is simply that parties have little idea what it may entail and do not appreciate its extraordinary flexibility. Conciliators, in turn, need to learn more about the methodology of conducting conciliation proceedings, as distinct from arbitrators or other adversarial proceedings.").

6 On the history and use of conciliation under La Ley de Enjuiciamiento Civil of 1881 (Articles 460-480), see Ignacio Diez-Picazo Giménez, "Civil Justice in Spain: Present and Future. Access, Cost, and Duration," in Civil Justice in Crisis 401-2 (A.A.S. Zuckerman (ed.) OUP 1999). For conciliation in civil procedure today see Article 415 of the Ley de Enjuiciamiento Civil 2000.

7 The Code of Civil Procedure in France was amended in 1995 to provide for court-annexed mediation; see Alexis Mourre, "Mediation and French Law: Recent Landmarks in Legislation and Case Law," in Special Supplement-ICC Int'l Court of Arb. Bull. 63-73 (ADR-International Applications, Paris, ICC Publishing 2001).

8 A comprehensive new civil Mediation Act came into force in Austria on May 1, 2004; see Marianne Roth & Klaus Markowetz, The Austrian Law on Mediation in Civil Matters: An Overview of the New Provisions ADR & the Law 222-34 (2003); see also 9 (No. 2) Current Developments Arbitration and ADR 19-20 (Austria) and 64-66 (Italy) (Oct. 2004).

9 For the WIPO caseload summary see http://arbiter.wipo.int/ center/caseload.html

10 For a discussion of these issues over a range of European jurisdictions, see the feature on Enforcement of Multi-Tiered Dispute Resolution Clauses in Arbitration and ADR 7-26 (October 2001); see also Tanya Melnyk, "The Enforceability of Multi-Tiered Dispute Resolution Clauses: The English Law Position," 5 Int'l Arb. L. Rev. 113-118 (2002); and for the ICC ADR Rules, see Peter M. Wolrich, "Multi-Tiered Clauses: ICC Perspectives in Light of the New ICC ADR Rules," in Special Supplement-ICC Int'l Court Arb. Bull. 7-22 (ADR-International Applications, Paris, ICC Publishing, 2001).