Mediation is a staple of complex U.S. litigation. Whether mandated by court rule, imposed by judicial pressure, or initiated by the parties themselves, mediation is embedded in the fabric of complex case management. It is widely accepted because sophisticated parties recognize that settlement of large, complex disputes often provides a more satisfactory solution than a court-imposed outcome.
Mediation is not a staple of complex international commercial arbitration. It may well precede it—many arbitration agreements contain a “tiered” approach to dispute resolution that includes mediation—but once a large international arbitration is fully underway, it is the experience of the authors, corroborated by empirical research, that mediation has not been widely accepted as a means to reach settlement. See generally S.I. Strong, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” 73 Wash. & Lee L. Rev. 1973 (2016) (hereinafter “Realizing Rationality”); id. at 1984 & 2023 (finding in an empirical study that “international commercial mediation is still relatively uncommon” and “parties remain hesitant to adopt mediation”).
