Article from: TDM 1 (2007), in Editorial
As traditional arbitration is beginning to mirror litigation in domestic courts both in terms of time and cost, we in the international dispute resolution bar have an obligation to explore ways of providing new forms of effective and efficient dispute resolution. One of these approaches is commercial mediation. There is already a significant body of literature on the subject. This special edition narrows the focus a degree to examine the interrelationship between arbitration and mediation (med/arb or arb/med).
For many of us (particularly those trained in the common law tradition) the idea is perilous. Even for one as committed to ADR as myself I still twinge a bit when I think of, for example, the same individual acting as both a mediator and arbitrator on the same matter in dispute. However, like Paul on the road to Damascus I am a late convert though, like he, a more devout one. This comes partly because I practice in Asia where there is a long tradition of the blending of the two roles. It also comes from the fact that I have tried to incorporate the two roles in my practice. It does work. Not in all contexts and not all the time. But to dismiss the idea without exploring it or considering variations on the theme is I believe to do an injustice.
At a recent IBA meeting held in Tokyo, a panel I was participating in discussed the status of international commercial arbitration. While it remains vibrant and used increasingly by more and more business people involved in international commerce, it is also true that it is becoming more institutionalized, costly and time consuming. Many users have complained that it is really not all that different from domestic litigation in the courts. What used to be called the four pillars (less expensive, faster, private and more easily enforceable) have given way to a two pillar structure. We also discussed how many of the traditional issues which used to be debated in the past have now become largely settled through precedent and intellectual dialogue. Kompetenz-kompetenz, for example, or the ability of an arbitral panel to issue an injunction of other forms of interim relief have, by and large, been settled. Even ten years ago one could not have said that with confidence. These victories have kept the arbitration process vibrant and dynamic. These victories have been achieved through discussion (and sometimes battles with the courts) largely in Europe which is, one could argue, the birthplace of international commercial arbitration.
We now speak of the Pacific century, the era of Asia. And while our European colleagues fought and won so many important issues for the ADR community, it is perhaps time for Asia to make its contribution to keeping arbitration and ADR in general dynamic and vibrant. And, perhaps one contribution which can be made is to explore and re-examine how best to incorporate the benefits of arbitration and mediation into a process that can be a useful tool to the business community not just in Asia (where in many countries it is part of the business/legal culture in any event) but as a contribution to the global international dispute resolution practice.
I'd like to thank all my colleagues for their contributions to this special edition. There is excellent work here. I'd also like to thank the TDM publishers for the opportunity to publish this special.
Paul Hastings, Tokyo.