A Call for a Harmonized Approach to Agreements to Mediate

by Maryam Salehijam

Abstract

(Addendum June 2018) Commercial parties increasingly agree to submit their current or future disputes to mediation in an attempt to resolve disagreements in an efficient and amicable manner. Agreements to mediate, however, can have opposing affects due to the persisting uncertainty regarding their binding nature. There are a growing number of instances in which the parties dispute about whether a party may ignore the agreement to mediate and proceed directly to binding mechanisms such as arbitration, the content of the obligations therein, as well as the forum that may address these legal question. The current risk associated with agreements to mediate adversely affects the advancement of mediation as risk averse parties avoid concluding such agreements. This article in providing an analytical perspective of the various approaches to the validity and enforceability of such agreements argues for regulation thereof in the UNCITRAL Working Group II's proposed instrument on conciliation/mediation.

Presented at the Center for International Legal Studies (CILS) "International Mediation Symposium" which was held in Salzburg, Austria, 8 - 11 June 2017. Chair: Mr. Hon. Ken Fields. More information www.cils.org

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