ALL AT SEA
Convention) is the key instrument in facilitating cross-border arbitral awards. The New York Convention has more than 145 signatory countries and imposes an international obligation on state courts of signatory countries to refer parties to arbitration in lieu of state court proceedings and to grant recognition of awards arising out of such agreements. However, there is no comparable cross-border instrument governing mediation proceedings or their outcomes.
In the future, however, mediation is bound to feature more frequently because of the regulatory requirements in the UK and European Union (EU). The English Civil procedure rules of 1999 introduced the concept of “active case management” which is defined as encouraging parties to use an alternative dispute resolution procedure. The power of the court goes as far as to order adverse costs despite a litigant being successful at trial, because they had unreasonably refused to follow the court’s suggestion to mediate the dispute.
This approach was demonstrated in the case of Dunnet v Railtrack.
Court-mandated mediation is also a part of other common law jurisdictions including Australia and Singapore. The EU has also issued directives in terms of cross-border mediation and consumer mediation, which compels each member state to deal with mediation in national legislation.