Realizing Rationality: An Empirical Assessment of International Commercial Mediation

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. 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.