Mediation plus is the combination of known dispute resolution devices in an effort to circumvent the morass of litigation and arbitration, while still retaining the useful features of each.
Mediation plus, while it may use more people than pure mediation, provides a less expensive avenue to settlement than typical expensive North American litigation. Formal arbitration, some observers feel is cumbersome, almost as expensive as litigation, and provides no reliable safeguard against an unjust or ignorant decision.
Necessity of Good Faith
International dispute resolution depends heavily on the good faith of the parties. The objective is to avoid months and years of arguments which create unwelcome expense and impede the order of business.
The procedure for mediation plus is simple and straight forward. The parties must agree on an activist mediator who will guide the parties as they set out on their journey to compromise. The mediator is vested with no power other than that of persuasion. The mediator's job is to clarify and illuminate issues as the process moves along. After a preliminary session, the mediator will know whether the case requires an arbitral panel with technical competence. The mere formation of this informal panel to be on stand-by may assist in settling the case. The prime objective is to eliminate expensive litigation and to provide a reasonable expectation of a practical, just and fair result within a reasonable time.
The arbitration panel, while more costly than a single mediator, is still far less expensive if hired by the parties or by the mediator. They would be expected to charge only an hourly rate plus expenses for their efforts. As they are an advisory, unauthorized arbitral board, there should be no other fees and no appeal or other procedural actions at the conclusion of their activity.
If the combination of mediator and arbitral body is skillfully used, the parties can be confident that the facts will be found by knowledgeable professionals without running the risk of a final unfair arbitration decision which is virtually unappealable.
Non-binding arbitration may result in an unenforceable judgment but provides an escape. The escape is from interminable litigation resulting in a blind judgment reached by someone who is not an expert in the international field in which the parties carry on business. Even those arbitrators who speak the same native language as the parties may view a dispute differently.
The Advantage of Mediation
Mediation prior to arbitration can lend itself to a clear understanding of the dispute. For instance, the mediator can suggest that each side submit in confidence 5 or 10 questions they would most want answered by the other side. This procedure arms the mediator with the issues to focus on. Neither side need know exactly what their adversary really thinks or what evidence in the view of their opponent is most probative. The mediator can then, with the participation and sometimes the assistance of the parties, draft focused issues for a previously selected informal arbitration panel to consider.
When this panel reports its findings, it may provide a valuable and realistic look into the future. It should never be forgotten that the parties to mediation plus retain the option to walk away at any time.
Mediation plus helps to reduce the polarity which poisons most formal proceedings. Parties who are unfamiliar and skeptical of traditional juries can find comfort in a procedure which allows full understanding of each side's contentions. Future beneficial contact can be encouraged and the case disposed of as a problem solved by the parties acting in good faith rather than a bitter partisan struggle. Discovery disputes and wrangling over document production and deposition testimony can be avoided.
Skill of the Mediator
The cornerstone of the dispute resolution process is an efficient and patient mediator who can lead rather than command. Skillful use of the informal panel can provide focus on evidence which both parties agree is valid and relevant. Elimination of crucial disputed issues will pave the road to compromise.
As an example, an arbitral panel could be particularly useful when an issue of future lost profits is confronted. The assistance of competent testimony by respected industry witnesses as well as experts could be extremely valuable to those who make the final settlement decisions. The panel's findings can also be used by the mediator to persuade stubborn members of either party to entertain a compromise. Findings of an informal arbitral panel would be by agreement inadmissible in any subsequent litigation as would any other mediation evidence or material.
A unique advantage of an informal arbitral panel is that they are forewarned that their rulings may be questioned, and they may be asked to explain what evidence they relied upon. If the arbitrators did not understand the evidence, it can be clarified or supplemented. In this situation, where all sides hear the basis for the findings, a second look at compromise is not only advisable, but justified. The arbitrators can also provide the mediator with their reasoning and assessment of their evidence to assist them in reaching an agreement.
Conclusion
A procedure which has all the advantages of mediation but which can also provide a credible assessment of technical issues through the offices of an informal arbitral body can come closer to reaching the proper decision than more formal methods.