Mediator Ricardo Cata Published in International Law Quarterly
Mediator Ricardo J. Cata's article "International Commercial Mediation: A Supplement to International Arbitration" has been published in the fall 2015 issue of the International Law Quarterly, produced by the International Law Section of The Florida Bar.
Mr. Cata is developing this innovative practice area, both on his own and Upchurch Watson White & Max's behalf. He sees the advantages to parties who add mediation to the process when engaged in arbitrated cross-border disputes as four-fold:
- Mediation in concert with arbitration saves time and money.
- International mediation can preserve business relationships beyond the resolution of the dispute.
- Mediation makes limitless remedies and settlement conditions possible.
- Mediation, in which the parties determine the outcome, reduces risk for all of the parties.
His carefully researched position includes several recommendations:
- Include an agreement to mediate in an international commercial contract as part of a comprehensive, escalating dispute resolution clause, or agree upon aspects of mediation during the dispute. The role and authority of the mediator, the mediation rules to be followed, the mediation method and the language to be used during mediation are among the factors to be considered and decided.
- "Before attending a cross-border mediation, make sure to investigate, anticipate and prepare for cultural factors. A person’s culture and legal training (i.e., common law versus civil law) and the 'legal culture' of his or her practice experience is very likely to have an impact (positive or negative) on that person’s approach and attitude toward the mediation process, as well as during the mediation conference."
- "The best time to mediate a dispute otherwise subject to arbitration would be after the appointment of the arbitrator ..." and when "the parties reach a good factual and legal understanding as to the basis for and amount of the damages sought in the dispute."
- If a great deal is at stake or the dispute is complex, consider "mediating selective components or issues of the dispute and arbitrating fundamental issues of law that may be involved, or the more complex components of the dispute."
For a more complete discussion of how and why to incorporate mediation into international arbitration, please see Mr. Cata's complete article here, beginning on Page 10.
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