Abstract
1. Why should mediation and MSAs be given preferential treatment over unassisted negotiation and traditional contracts?; and alternatively,
2. Why should mediation not be given special treatment? Would a system which enforced MSAs undermine the values and objectives of mediation? It is suggested that such a system would, in fact, further central values and objectives of mediation such as those of self-determination, consensuality and party autonomy. The article then suggests directions for future research and analysis. We (the international community) have two main options for the future. We can:
1. Maintain the status quo (with some MSAs being enforceable as contracts, some as consent court orders, some as consent arbitral awards, and some not enforceable at all); or
2. Create a new system for the enforcement of MSAs, a New York Convention style system which recognises and enforces MSAs as MSAs.
The first option will perpetuate diversity, a lack of uniformity and uncertainty in the use of mediation. The second option poses challenges, but we ought to strive to overcome them. The arguments in favour of creation of a new system for mediation are persuasive.
| Original language | English |
|---|---|
| Pages (from-to) | 87 |
| Number of pages | 118 |
| Journal | Contemporary Asia Arbitration Journal |
| Volume | 7 |
| Issue number | 1 |
| Publication status | Published - 2014 |
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Enforcing mediated settlement agreements : Critical questions and directions for future research. / Wolski, B.
In: Contemporary Asia Arbitration Journal, Vol. 7, No. 1, 2014, p. 87.Research output: Contribution to journal › Article › Research › peer-review
TY - JOUR
T1 - Enforcing mediated settlement agreements
T2 - Critical questions and directions for future research
AU - Wolski, B
PY - 2014
Y1 - 2014
N2 - This article discusses a range of critical issues and policy concerns involved in the ongoing debate about the status of mediated settlement agreements (or MSAs) reached in cross-border disputes. It examines current methods of MSA enforcement in various jurisdictions and it identifies their strengths and shortcomings. The article then focuses on two questions:1. Why should mediation and MSAs be given preferential treatment over unassisted negotiation and traditional contracts?; and alternatively,2. Why should mediation not be given special treatment? Would a system which enforced MSAs undermine the values and objectives of mediation? It is suggested that such a system would, in fact, further central values and objectives of mediation such as those of self-determination, consensuality and party autonomy. The article then suggests directions for future research and analysis. We (the international community) have two main options for the future. We can:1. Maintain the status quo (with some MSAs being enforceable as contracts, some as consent court orders, some as consent arbitral awards, and some not enforceable at all); or 2. Create a new system for the enforcement of MSAs, a New York Convention style system which recognises and enforces MSAs as MSAs.The first option will perpetuate diversity, a lack of uniformity and uncertainty in the use of mediation. The second option poses challenges, but we ought to strive to overcome them. The arguments in favour of creation of a new system for mediation are persuasive.
AB - This article discusses a range of critical issues and policy concerns involved in the ongoing debate about the status of mediated settlement agreements (or MSAs) reached in cross-border disputes. It examines current methods of MSA enforcement in various jurisdictions and it identifies their strengths and shortcomings. The article then focuses on two questions:1. Why should mediation and MSAs be given preferential treatment over unassisted negotiation and traditional contracts?; and alternatively,2. Why should mediation not be given special treatment? Would a system which enforced MSAs undermine the values and objectives of mediation? It is suggested that such a system would, in fact, further central values and objectives of mediation such as those of self-determination, consensuality and party autonomy. The article then suggests directions for future research and analysis. We (the international community) have two main options for the future. We can:1. Maintain the status quo (with some MSAs being enforceable as contracts, some as consent court orders, some as consent arbitral awards, and some not enforceable at all); or 2. Create a new system for the enforcement of MSAs, a New York Convention style system which recognises and enforces MSAs as MSAs.The first option will perpetuate diversity, a lack of uniformity and uncertainty in the use of mediation. The second option poses challenges, but we ought to strive to overcome them. The arguments in favour of creation of a new system for mediation are persuasive.
M3 - Article
VL - 7
SP - 87
JO - Contemporary Asia Arbitration Journal
JF - Contemporary Asia Arbitration Journal
SN - 1999-9747
IS - 1
ER -