Commercial Mediation - A comparative review

A review of the availability and process of mediation in 21 jurisdictions across the Americas, South Africa, Asia-Pacific and Europe

Welcome to the third edition of Commercial Mediation – a comparative review, in which we look at the place of mediation across the globe. This fully updated edition includes chapters from 17 Linklaters’ offices, as well as from our alliance and associate firms across the globe, Allens, Webber Wentzel and Widyawan & Partners. The full report, Commercial Mediation: A review of the availability and process of mediation in 21 jurisdictions across the Americas, South Africa, Asia-Pacific and Europe jurisdictions across Europe, the Americas and Asia-Pacific is available here.

Mediation, in which an independent professional assists parties to work towards a negotiated settlement, is an increasingly popular and accepted method of resolving disagreements across the international business world. It is principally used by parties locked in a dispute which must otherwise be fought out in litigation or arbitration and is particularly useful where the parties wish to continue a business relationship which could be damaged by aggressive court or arbitral proceedings. Building on the effectiveness of the process, commercial contracts now often include an obligation on parties to attempt to solve any disputes by mediation before launching proceedings.

Although mediation is generally recognised throughout the commercial world, there remain differences in how the process is operated in different jurisdictions and, in particular, in how far the legislature or court system will go to compel parties to mediate. This comparative review considers how mediation works across 21 jurisdictions. It asks, for each jurisdiction, the following questions:

  • What is the status of mediation in this jurisdiction?
  • How is a mediation conducted?
  • Is there any obligation on litigants to mediate?
  • Does the court have powers to support a mediation?
  • Does failure to mediate attract adverse cost consequences?
  • Are mediations confidential? How are settlement agreements enforced?
  • Is there a system of accreditation and/or regulatory body for mediators?

Linklaters has a strong interest in mediation and we consider using mediation and its techniques to assist our clients. We hope you find this review helpful – we are keen to spread the word that mediation is a cost effective and commercial approach to resolving disputes.