By: Jacqueline Nolan-Haley
As international law and trade grows more complex, mediation is
being viewed as an increasingly viable method of dispute
resolution. This increase in status is reflected in the
recent promulgation of policy proposals and model codes such as the
Green Paper, the Model Law on International Commercial
Conciliation, and the Mediator Code of Conduct. While this
seems to indicate a growing consensus on the use of mediation and
its standards, mediation in practice still varies greatly, and thus
there remains a need for further comparative analysis on how and
why mediation differs from country to country.
This paper encourages the use of mediation as a way to solve
cross-border disputes, and discusses the importance of, and
problems associated with, teaching comparatives perspectives in
mediation. Mediation is only newly institutionalized in legal
cultures and varies by jurisdiction or country. Lawyers who
seek to master mediation as a tool for solving transnational
disputes will thus benefit from increased academic study.
This paper briefly discusses the challenges involved in such
comparative analyses, including the scarcity of literature, the
need to account for the cultural characteristics of individual
countries, and even the basic problems of terminology. In
addition, it proposes several foundational questions and areas of
comparison for future comparative assessments of
mediation.