In a world where the borders of the global community are fluid, and
where disputants manifest increasingly diverse attributes and
needs, mediation-for decades hovering at the edge of dispute
resolution practice-is now emerging as the preferred approach, both
in its own right and as an adjunct to arbitration. Mediation
processes are sufficiently flexible to accommodate a range of
stakeholders (not all of whom might have legal standing) in ways
the formality of arbitration and litigation would not normally
allow. Among mediation's many advantages are time and cost
efficiencies, sensitivity to cultural differences, and assured
privacy and confidentiality. This book meets the practice needs of
lawyers confronted with cross-border disputes now arising far
beyond the traditional areas of international commerce, such as
consumer disputes, inter-family conflicts, and disagreements over
Internet-based transactions. The author takes full account of
mediation's risks and limitations, primarily its lack of finality
and uncertainty in relation to enforceability issues which will
persist until the advent of appropriate international regulation.
Among the aspects discussed and analysed are the following: - the
emerging and significant new wave of global disputants; - need to
resolve disputes on the basis of factors other than law; -
increasing tendency of disputes to defy specific legal categories;
- dispute prevention systems drawing on mediation principles, such
as project management mediation, partnering, and alliancing; -
mediation compared to others forms of dispute resolution; -
referral to mediation; - mediation and multi-tiered dispute
resolution (MDR) clauses; - the duties of mediators, lawyers and
parties; - confidentiality and its implications; - enforceability
of mediated settlements; and - the impact of mediation on legal
rights and remedies. While the book draws on examples from around
the world, six primary jurisdictions (the United States, Australia,
England, France, Germany, and Austria) are selected for several
reasons, including comparison of legal traditions, significant
volume of mediation-related case law, and the existence of
mediation-related legislation and implementation requirements.
Cross-border legal instruments examined include the European
Directive on Mediation, UNCITRAL's Model Law on International
Commercial Conciliation (MLICC), and the Uniform Mediation Act
(UMA) in the United States. In the 21st century mediation is at the
forefront of contemporary social and legal development and is
finding a place in both physical dispute resolution forums and
worldwide electronic-based communities. International and
Comparative Mediation, with its deeply informed insights into
emerging international trends and the diversity of mediation
regulation applicable to international disputes, shows conflict
management practitioners how to create a forum culturally
acceptable to each specific group of participants, with a view to
agreeing on appropriate norms for the regulation of future
relationships. It will be welcomed by lawyers working in a wide
range of cross-border practice. Professor Nadja Alexander holds
appointments at City University Hong Kong, Murdoch University in
Australia and University of the Witwatersrand in South Africa. Her
books on dispute resolution have been published internationally and
her work has appeared in English, German and Russian language
versions.
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