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3 - Agreements for Future Mediation

Published online by Cambridge University Press:  01 September 2022

Ronán Feehily
Affiliation:
University of Canterbury, Christchurch, New Zealand
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Summary

Commercial contracts frequently contain mediation clauses requiring parties to mediate as part of a sequence of dispute resolution methods, where they progress from consensus to evaluative methods until resolution is reached. Careful drafting is required to ensure such clauses are effective and enforceable. The primary issues relevant to the enforceability of mediation clauses include severability, certainty, completeness, attempts to oust the court’s jurisdiction, additional policy considerations, certainty, waiver and remedies for breach of mediation clauses. While compliance with mediation clauses is not easy to determine, only the narrowest of requirements has proven workable in practice. Regional and international instruments covering mediation tend not to provide for the enforcement of mediation clauses. There is an international trend towards obligating legal advisors to discuss with their clients whether their commercial disputes are suitable for mediation, and policy in many jurisdictions is moving towards penalising parties where mediation is not given due consideration. Similar to mediation clauses, agreements to mediate require careful drafting to ensure enforceability.

Type
Chapter
Information
International Commercial Mediation
Law and Regulation in Comparative Context
, pp. 53 - 82
Publisher: Cambridge University Press
Print publication year: 2022

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  • Agreements for Future Mediation
  • Ronán Feehily, University of Canterbury, Christchurch, New Zealand
  • Book: International Commercial Mediation
  • Online publication: 01 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781108869423.005
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  • Agreements for Future Mediation
  • Ronán Feehily, University of Canterbury, Christchurch, New Zealand
  • Book: International Commercial Mediation
  • Online publication: 01 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781108869423.005
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Agreements for Future Mediation
  • Ronán Feehily, University of Canterbury, Christchurch, New Zealand
  • Book: International Commercial Mediation
  • Online publication: 01 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781108869423.005
Available formats
×