Following our “Masterclass Mediation” session for in-house lawyers, in collaboration with CEDR`s co-founders and experienced mediators, Eileen Carroll and Karl Mackie in January 2020, a number of topics related to mediation in the past, present and future are reflected in the 2020 updates of the CEDR`s standard documents, which address four key themes: the agreement creates a framework in which mediation agreements will be able to ensure cross-border implementation in the signatory countries. This could be important for the commercial parties, because it can introduce a level of appeasement that has not been appreciated so far, especially in legal systems where mediation is still in its infancy. The question remains to what extent the Convention will be useful (and used) in practice. In our experience, non-compliance with the terms of a negotiated transaction agreement is rare – the parties have put in place enough goodwill to settle a case, conditions are generally met and contractual safeguards, such as payment, are a precondition for liquidation, which strongly encourages compliance. While it is customary for the parties to strictly apply escalation clauses in arbitration proceedings, on pain of challenging the jurisdiction of an arbitral tribunal, it is a welcome reminder that escalation clauses that provide for a court of last resort after mediation are applicable in the same way and are applied by the court if they are sufficiently clear. In a press release (available here), the CEDR noted that the signing of the Singapore Agreement in August 2019, the need for a comprehensive approach to the standards expected by mediators, the new importance of the REL trigger clauses and the need to ensure best practices after the mediation end were the main factors of updating. The provisions now explicitly authorize contact with a mediator during this period, if agreed, and provide that the terms of the mediation agreement continue to apply. As part of our non-profit mission, CEDR proposes standard Alternative Dispute Settlement (ADR) clauses in more than 20 languages that can be downloaded free of charge to reflect the best practices and changing requirements of mediation. We use our knowledge of the 3,000 disputes we handle each year for all ADR processes, particularly the 400 “Major Case” mediations, where the average cost of each claim is well over $1 million. This contributes to the design of these valuable models, widely used in the field of commercial mediation. Several of the following ADR clauses in the model stipulate that the form of the AsD to resolve the dispute must be mediation. If another form of ADR is chosen, the clause may be amended and referred to that process.

Courts have recently seen examples of parties challenging the applicability of carefully crafted dispute settlement clauses (z.B. Ohpen Operations UK Ltd/Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC)]. In Ohpen, the parties were instructed to refer potential disputes to mediation as soon as they reached a certain stage. In the clause formulated, it was expressly stated that the mediation procedure to be used was the CEDR type mediation method. Citing “a clear and strong public policy in favour of the application of alternative dispute resolution provisions and the encouragement of parties to settle disputes before litigation,” the Tribunal held that the judicial proceedings should be suspended until the attempted mediation, in accordance with the clear and enforceable escalation clause. “If a dispute arises under this agreement, the parties agree to mediate in good faith to resolve such a dispute and will do so in accordance with the CEDR type mediation procedure.