INTRODUCTION

This chapter is devoted to connections between mediation and arbitration. The main points of contact are as follows.

(i) Multi-tier dispute resolution clauses render mediation an obligatory step prior to arbitration or litigation; in England it is possible for the innocent party to seek a stay of premature litigation to create the opportunity for mediation to be pursued, if the opponent, in breach of such a multi-tier dispute resolution clause, has wrongly commenced litigation before conducting mediation (1.59 ff); the leading English decision is Cable & Wireless case (2002).

(ii) Occasionally the English court might recommend mediation to try to resolve an impasse; this can arise when the parties have litigated in different jurisdictions in order to determine whether they should be arbitrating; this was Colman J's response to a jurisdictional wrangle concerning a disputed arbitration agreement in C v. RHL (2005) (2.07).

(iii) Mediation might be voluntarily attempted by the parties even aft er arbitration has begun (2.08).

(iv) Parties might clothe an arbitrator as a mediator (‘med-arb’, that is, ‘intraarbitral mediation’); here the arbitrator is required, if necessary, to perform the successive roles of mediator and arbitrator; but this ‘chameleon’ style of dispute resolution is controversial; nevertheless, there has been commercial interest in expansion of this consensual method of ‘med-arb’ (2.09 ff). The problems here are: