According to our regulations, mediation is the “means of dispute resolution, whatever its name, in which two or more parties voluntarily attempt to reach an agreement by themselves with the intervention of a mediator.”
But today we wonder how a mediation procedure is initiated when the conflict is cross-border. This will occur because the parties have their domicile or residence in different States or because the parties' agreements have to be executed in States other than that of the parties' domicile.
A common assumption: start with prior agreement
The first scenario for the start of mediation, and perhaps the simplest, is that mediation has an agreement prior to the conflict, normally in the international contract itself.
In general, it is interesting to introduce the mediation clause in the contract itself at the time of signing it. However, nothing prevents the decision to go to mediation from being adopted a posteriori, even when there is already controversy. In this case, it is advisable to leave a written record of the agreement to submit to mediation as well as its scope.
What can the prior agreement consist of?
If optional mediation has been agreed in the contract, the party that wishes to settle
A difference may invite the counterparty to mediation. In other words, you can call consultations to see if mediation is appropriate. The optional mediation clause has the value of good offices, but does not commit anything.
On the contrary, if there is a commitment in the clause to first discuss and consider mediation, the party that wants to resolve a difference is obliged to invite the other party to consider mediation, as a consultation. The counterparty must also value and consider this mediation. But none of them is obliged to accept recourse to mediation. Therefore, mediation cannot yet be activated until the agreement is finalized.
Finally, if mandatory mediation has been chosen in the contract as a form of conflict resolution prior to any other, the party that wants to resolve a difference may now initiate the mediation procedure itself, without the need to
consult the other party.
In any case, the mediation procedure will be the one chosen by the parties, whether ad hoc or institutional. For example, in the case of the International ADR Center of the International Chamber of Commerce (ICC), the form of activation would be through a request that must be forwarded to all parties. The deadlines begin to count on the date of acknowledgment of receipt of the application by the Center, or of the payment of the registration fee, if this is later.
And if there is no prior agreement, how does mediation begin?
The second scenario for initiating a mediation procedure, and perhaps more complex, is when there is no prior agreement for cross-border mediation, before the dispute arises.
You must then go through a previous phase: invitation and acceptance or rejection of the resort to mediation. Mediation is usually initiated by one party inviting the other party to resort to mediation.
In that invitation, a deadline is usually given to respond. The UNCITRAL Model Law on international commercial mediation proposes acceptance of the invitation within 30 days of the invitation, unless a different period has been included. If there is no response within the deadline, the invitation to mediation is deemed rejected.
In mediations managed by institutions, the centers usually collaborate to reach the mediation agreement that allows the procedure to begin. Taking the CCI as an example, the interested party must send a request to the Center with all the relevant data and paying the corresponding administration costs.
Once received, the Center informs the other parties of the proposal and can help consider it. If, finally, there is an agreement to resort to mediation, the procedure begins on the date on which the Center sends confirmation of the agreement.
An attempt to resort to mediation is understood to be frustrated when the parties do not reach an agreement within a period of 15 days from the date of receipt of the request.
What are the effects of starting mediation?
The beginning of mediation has three fundamental effects.
First, the most obvious, an activation effect: the mediation procedure will be launched.
Secondly, an interruption effect: in many legal systems the start of mediation interrupts the statute of limitations and expiration periods of judicial actions.
And, thirdly, a blocking effect: in some state legislation, arbitration courts or jurisdictional bodies will not be able to hear lawsuits and claims while mediation is taking place. Only when mediation is unsuccessful and a settlement agreement is not reached, judicial or arbitration proceedings would be open.
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