As students and professionals from countries spanning the globe descend on Paris, France for the 15th ICC International Commercial Mediation Competition, Oliver Carroll and Jemima Roe of Clifford Chance set out why mediation skills are needed today more than ever.
The world has entered a brave new decade. If 2019 was a taster of what is to come, the 2020s will likely see significant turbulence within and between states and trading blocs, as well as further upheaval in previously assumed international norms. As these norms are eroded, and the international rules-based order becomes vulnerable to more uncertainty, the risk profile of otherwise “conventional” international disputes cannot be taken for granted. From the continuing melodrama of United Kingdom-European Union (EU) and United States (US)-China trade negotiations to the recent untimely demise of the World Trade Organization dispute settlement body, questions over how, where and under what rules international disputes are settled is now up for grabs.
Enter, mediation. Where uncertainty reigns, parties whose dispute is real but whose appetite for significant risk is minimal, are in dire need of a collaborative, efficient and effective means of delivering resolution and finality to their discord. In this context, the pragmatic case for turning to mediation in international commercial disputes is clear and now well established. As a commercial tool for the swift and comprehensive conclusion of disputes, there can be little debate as to the now entrenched status of mediation in the toolbox of international disputes practitioners. The fact that confidentiality and openness are cornerstones of mediation gives parties the comfort they need for the necessary personal and economic investment in a process, which when all is said and done, is the basis for stability and reliability in dispute settlement. The resulting level of security which flows from a mediation is often unmatched even by the abilities of traditional institutional or domestic dispute resolution mechanisms.
But beyond the commercial utility of mediation, it is the hard-edged skills core to the discipline of mediation which are perhaps of greatest pertinence in this uncertain world. From demanding industrial relations challenges to the most contentious international trade disputes, mediation offers a unique forum for understanding, adapting to, and ultimately fulfilling the interests of all parties, while avoiding the economic, social and political cost of a publicly damaging and drawn out dispute. The process of mediation, when driven by the parties and facilitated through an impartial mediator, can at its best deliver an unparalleled focus on what motivates the very behaviour against which parties are aggrieved and provides space for the foundations of a more constructive future relationship to emerge. The discipline of actively engaging with the demands of your opposition, of dismantling and remoulding a strategy to adapt to the often dynamic contours of a dispute, is an invaluable competency both at and away from the mediation table.
Too often, what underlies the most contentious international disputes–be they between private parties or between states–is a continual failure to foster shared perspectives, with adversarial parties negotiating from diametrically opposed starting points, and talking past, rather than with, each other. The result is often an inconvenient compromise, in which nobody is a winner and a series of unhappy stakeholders are left wondering what went so badly wrong.
However, as we survey the international disputes landscape among the political upheaval and diplomatic turmoil which now occupies so many previously treasured international institutions, we should be mindful that the news is not all doom and gloom. The recent emergence of the United Nations Convention on International Settlement Agreements Resulting from Mediation at all, is indeed not dead in the field of multilateral international cooperation. The Convention establishes a harmonised legal framework for the right to invoke settlement agreements in domestic courts, as well as for their enforcement. At the time of writing, fifty-one states had signed the Convention, including the US and China. The EU member states have signalled their intention to follow, either en bloc or individually.
We can only hope that, as the Convention and its implementing legislation bed in around the world, parties who may otherwise embroil themselves in disputes will take advantage of a process that has proven itself time and again—and which may now rightfully lay claim to being the preferred route to surmount the seemingly insurmountable. Perhaps this brave new decade will come to see mediation as the true art of a deal.