Mediating International Commercial Disputes: Differences in U.S. and European Approaches

Spain provides a good European example of established experience with conciliation and lack of experience with mediation. For a long time in Spain there was a requirement to attend a compulsory conciliation hearing prior to continuing with litigation. Many Spanish commentators complained that the conciliation process was useless. Parties to a dispute went through it as a mere formality in order to be able to continue with their litigation. The major overhaul of Spanish civil procedure in 2000 retained a weak obligation to make an effort at conciliation at the parties' first appearance before the judge, but made no mention of "mediation." Few arbitration institutions in Spain offer mediation services, and of those that do, the practice is to select mediators from the list of arbitrators. The result is that Spain has a moribund practice of conciliation. Since it has taken virtually no steps towards developing a mediation culture in the modern sense, there is little understanding there of the techniques of mediation.6

Therefore, one could view conciliation in one of the following ways: (i) as well established in continental Europe; (ii) as representing a hopelessly outdated set of ideas by U.S. standards, or (iii) often regarded as synonymous with mediation in the modern U.S. sense. Thus, there is an immediate potential for a serious cultural misunderstanding if a U.S. party and its continental European counterpart enters into a discussion about the possibility of using mediation or conciliation. These parties probably believe they are discussing the same thing but actually have quite a different set of assumptions and procedures in mind.

Over the past decade, European conceptions of mediation have advanced and, in certain respects, closed the gap with U.S. practice. Europeans have moved away from the antiquated concept of conciliation as either a mere formality or a mini-arbitration. They have begun to understand that mediation involves a new set of ideas and techniques and requires practical training and experience. The Proposed European Directive, if adopted through legislation by Member States, should accelerate this understanding. The Proposed European Directive will require Member States to create a uniform, predictable legal framework for recourse to mediation.

This framework will require effective quality control mechanisms for providers of mediation services and training programs for mediators. In addition, courts will be authorized to refer cases to mediation, and standards will be developed for the confidentiality of communications made in the course of a mediation, the suspension of limitation periods, and the recognition and enforcement of mediation settlement agreements.

The Proposed European Directive should introduce some much-needed uniformity to the piecemeal legislative initiatives to promote mediation, such as recent initiatives in France,7 Austria and Italy.8

Since the mid-1990s, there have also been some private initiatives to encourage mediation in continental Europe. The Centre de Mediation et d'Arbitrage de Paris (CMAP) and the Netherlands Mediation Institute were both established in 1995. In 1996 the CPR Institute for Dispute Resolution, which recently changed its name to the International Institute for Conflict Resolution and Prevention, published Model European Mediation Procedures, and in 2004 initiated a European Business Mediation Congress. The ICC replaced its 1988 Rules of Optional Conciliation with the ADR Rules effective July 1, 2001, which cover a range of dispute resolution techniques, including mediation, neutral evaluation, mini-trial, and other settlement techniques or combination of techniques agreed by the parties. The American Arbitration Association has opened an office of the International Centre for Dispute Resolution in Dublin, Ireland, which offers international arbitration and mediation services. In addition, the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center in Geneva has been actively promoting mediation for international dispute resolution, and regularly offers workshops for mediators with distinguished U.S. teachers. WIPO's mediation caseload is larger than its arbitration caseload, mediation predominating due to its success in eliminating the need for arbitration."