Originally published in the February 13, 2012 edition of THE RECORDER.
When mediating a dispute in Asia, or with Asian companies in the U.S., lawyers and mediators cannot expect the mediation process to be “business as usual.” Mediation is not an established practice in most Asian countries. Attitudes in regard to mediation are akin to those in California 30 years ago.
The adage that success in life can be achieved by “just showing up” does not apply to mediation of cross-border disputes. A well-designed process is a must.
There is a high cost to failure with crossborder mediations. While international arbitration is a reasonably familiar dispute resolution technique, mediation is not. The failure of one poorly planned mediation often creates a viewpoint that “mediation does not work” and sends the parties back to the courtroom for good.
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