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Part I Commercial and Investment Mediation: Boundaries, Trends, and Outlook, 3 Applying the Lessons of International Commercial Arbitration to International Commercial Mediation: A Dispute System Design Analysis

S. I. Strong

From: Mediation in International Commercial and Investment Disputes

Edited By: Catharine Titi, Katia Fach Gómez

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 October 2020

Arbitration — Mediation

Traditional analyses of international commercial mediation focus primarily on either the step-by-step process associated with resolution of particular disputes or the relative merits of mediation over alternatives such as transnational litigation or international commercial arbitration. However, there is a significant shortage of comprehensive scholarly examinations of the international mediation regime as a whole, such as those that are recommended by experts in dispute system design (DSD). DSD is a unique area of study, since it does not seek to promote or analyse a particular methodology or process but instead focuses on larger structural issues so as to improve dispute resolution at a systemic level. Only by adopting this type of larger analytical framework can parties, policymakers and scholars truly appreciate the forces influencing decisions relating to the resolution of cross-border business disputes. Although a full DSD analysis would be beyond the scope of this chapter, it considers a number of critical design issues relating to international commercial mediation, building off a recent large-scale empirical study conducted by the author in this area of law. Among other things, the chapter applies a default theoretic analysis to the field of international dispute resolution to consider how various visible and invisible ‘nudges’ affect individual and institutional decisions regarding international commercial mediation. The discussion not only provides an innovative structural perspective on the interplay between litigation, arbitration and mediation in the international commercial context but also suggests how the existing system might be redesigned to create a more effective means of resolving cross-border business conflicts.

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