
Feb 1, 2025
The role of mediation in dispute resolution
The ICC Arbitration and ADR Commission plays a pivotal role in shaping global dispute resolution standards, ensuring businesses have access to efficient, fair, and enforceable solutions. As international trade grows increasingly complex, ICC’s dispute resolution services—including arbitration, mediation, expert determination, and dispute boards—help companies navigate conflicts without resorting to lengthy court proceedings.

One of the fastest-growing areas in dispute resolution is mediation, offering businesses a cost-effective, time-efficient, and collaborative approach to resolving disputes. To explore the latest trends, challenges, and opportunities in mediation, we spoke with Jeremy Lack, a leading expert in the field.
The role of mediation in dispute resolution
In the arena of dispute resolution, there are several ways to resolve commercial disputes. The three most commonly discussed are litigation, arbitration and mediation.[1] Of these three methods, litigation in national courts is the most common and most traditional method. Arbitration is next. This method is popular in international disputes due to its flexibility and enforceability since the New York Convention on the recognition and enforcement of arbitral awards has been signed by 173 countries. Mediation is the least used even though it is considered by many as being considerably more effective in resolving cross-border disputes due to three crucial factors: it is faster, cheaper, and allows for better control over key drivers.
In order to better understand the subject of mediation, we contacted dispute resolution expert Jeremy Lack. Jeremy works closely with disputing parties to create tailor-made dispute resolution processes. Besides operating his law firm Lawtech, he is a door tenant with Quadrant Chambers in London, counsel to the Swiss law form Helvetica Avocats, and the founder of InnovADR, a company that offers bespoke Appropriate Dispute Resolution services.
Reflecting the complexity of the subject, we have divided the interview into two parts. So watch out for part two in next month’s newsletter.
Can we start with a broad definition of mediation?
A mediation is a facilitated negotiation conducted by a trusted person, who is neutral, impartial and independent. If we go into more detail, I think there are a lot of cultural differences regarding questions such as: does the mediation process have to be confidential or not? Do you have to have joint sessions or can you meet separately with the disputants? And what is the precise role of the mediator: can they be evaluative and provide an opinion or make a settlement proposal? The answers to these questions vary surprisingly from country to country, and depending on the school of mediation a mediator was first trained in.
What’s the definition of a successful mediation?
The success of a mediation depends on the parties’ primary goals, which once again can be a moving target culturally. The Anglo-Saxon definition of a successful mediation is often: did you get a deal done? An Asian approach is often: did you manage to maintain or create harmony? This may or may not require an agreement; it looks more to social impact. The Germanic approach to mediation is often to focus on: did the disputants have a meaningful dialogue? That’s another metric of success, which often directs away from separate meetings in caucus. And then if I look at a French Cartesian approach: this is often about following a four-step process. In that philosophy, whether or not there is harmony, whether or not there is an outcome, whether or not you were able to discuss things in depth, it was a successful mediation as long as you struck to the process. The truth is that disputants often have a mix of different objectives, including all of the ones mentioned above, so how you measure success really needs to be decided in terms of their primary goals, which can vary case-by-case.
So what happens when you are mediating between two different cultures?
It’s not always a ‘simple’ two-party case; I recently had a case with at least five parties in it, involving different cultures from around the world. Mediation is not viewed or practised the same in every country. For example, a comparative analysis of how 60 different countries defined mediation written in a book by Manon Schonewille and Fred Schonewille in 2014, soon after the EU directive on cross-border commercial mediation took effect, showed that no two of those 60 countries shared a common practice of mediation. Even within the EU, where the directive was intended to harmonize practices, it turned out to be very differently defined, taught and regulated country-by-country. Therefore, when dealing with cultural differences, it is crucial to understand the parties’ assumptions, expectations and procedural needs before starting a mediation, including those of the mediator. This is why I believe appropriate process design is a crucial first step for any international dispute.
How do you design a mediation process that ensures that all the parties are on the same wavelength?
Often you have to mediate procedural issues first, focusing on what the parties’ primary goals are, realising that it may be a combination of getting a deal done, creating social harmony, improving personal relationships and ensuring a mutually acceptable process was conducted. This often requires a diagnostic step first. I have seven key drivers that I discuss with parties to do so. The first is the timing: what’s the deadline; are there any time pressures? The second is costs: it’s important to stay within the parties’ budgets and what is cost-effective. Relationships is the third driver. To what extent do certain relationships need to be preserved or improved? Will the parties continue working together in the future? Are they interested in working collaboratively or competitively to resolve the matter? Is there a risk of the conflict escalating if certain personal issues are not addressed? Another issue is control on procedural matters: to what extent do the parties want to keep or give control on procedural issues to the mediator. For example, what discovery or evidence needs to be provided? Who will get to speak and when? Will lawyers be required? Will there be a need to provide written submissions, interrogatories, position papers or a summary of concerns, needs and interests that need to be resolved? Some mediators have very specific requirements that others don’t. Some require copies of contracts, pleadings and witness statements, whereas others don’t wish to receive anything at all in advance. The fifth driver is control of outcome: to what extent to the parties want to give or keep control over the outcome? Do they want the mediator to give an opinion, make a proposal or work with another dispute resolution professional (e.g., an arbitrator or an expert) to provide a binding decision? For some professionals, this creates the difference between a competitive negotiation and a collaborative negotiation. Confidentiality is the sixth driver. This determines to what extent that the existence of the dispute, the mediation process itself, or any information exchanged should be confidential. Does confidentiality apply to the external world, or even to other people within each party who may not be attending mediation meetings? Should everything said in caucus be kept confidential and not repeated to another party or does the mediator have discretion to use what they think could be helpful? Does the settlement agreement reached need to be kept confidential? Enforceability is the seventh driver. This is especially important for international disputes: parties sometimes need to have formal reassurances that the solution they have reached is going to be respected and applied, and that there can be ways of ensuring specific performance or certain obligations.
Would you say that mediation is more flexible than litigation?
Mediation is incredibly flexible, which can be viewed as both a weakness and a strength. It’s a strength because you can design a process to exactly meet the parties’ needs. But it’s a weakness insofar as you cannot assume that mediation has got to mean one thing, and that the mediator’s approach will be the one you want (e.g., facilitative as opposed to evaluative). This is different to litigation, where each court has its own formalities and rules of procedure. Lawyers are usually the only ones to speak, and there is a rigid series of events that have to take place, which the judges will rule on and decide. In litigation the parties have usually given up all control over the process and the outcome.
Where does arbitration fit into the dispute resolution mix?
It is particularly popular for cross-border commercial disputes. In recent years, there have been concerns regarding its costs and speed. An important point to remember, however, is that mediation and arbitration can be combined for more cost-effective, faster and optimal results. Such ‘mixed mode’ dispute resolution processes are particularly appropriate for complex (e.g., investor-state) or multi-party disputes. Depending on the number of parties, the complexity of the case, the disputants’ future business needs and objectives, the cultural needs of the parties, their budgets and deadlines, you can combine mediation and arbitration to provide highly tailored results that fit all these requirements, also providing greater enforceability through the combined application of the New York Convention and the Singapore Convention.
Keeping in mind the potential benefits of mediation – being faster, cheaper, and allowing for better control over key drivers – how is it viewed by the traditional legal system?
There is still a long way to go. Despite mediation being increasingly considered by commercial lawyers in the last two decades, it is seldom used and if so, only very late in litigation or arbitration proceedings (e.g., on the eve of a trial), when the parties’ positions have become entrenched and relationships have already deteriorated. It only seems to be taking off in jurisdictions where courts have actively promoted it or even sanctioned parties for not trying it. A few years ago I coordinated the Global Pound Conference series. This involved collecting data from a broad range of dispute resolution experts – judges, lawyers, in-house counsel, business executives, people from ministries of justice and academics – approximately 5,000 people in 28 cities from 24 countries. In addition to discovering that not only are there huge differences in attitudes to mediation country by country (and sometimes within countries), the fascinating thing was that, in all countries and cities, all of these experts (judges and lawyers included) were unhappy with access to justice in their country. They felt it is often too expensive, takes too long, too restrictive, destructive in terms of relationships, or a combination of these problems. That is why there has been increased interest in mediation by judges, calls for mediation as a compulsory first step prior to proceeding to litigation, and significant shifts in forum shopping. While mediation will become more common, it is unlikely to surpass arbitration or litigation, even if technically it ought to. This is due to cultural and psychological differences that are difficult to overcome. A willingness to mediate is often misinterpreted as a sign of weakness if made by a party, whereas it is a different thing if it comes at the request (or even as an order, subject to cost sanctions) from a judge or arbitrator. Lawyers often believe that if they could not settle a dispute through negotiation, a mediator is unlikely to be of additional value and is only likely to delay and create additional costs for the parties. They are unaware that all international commercial mediation centres report settlement rates higher than 70%, within less than 6 months. This is a complex and challenging paradox – but one that offers huge benefits for lawyers and disputants willing to use it much earlier on, and more strategically in combination with litigation or arbitration.
Part two of this interview will cover subjects such as:
How to deal with confidentiality in mediation?
How to create an environment of trust and collaboration in mediation?
Psychological barriers in mediation
Where does conciliation fit into this?
How can findings from neuroscience help mediators and mediation lawyers?
How to select mediators and what makes a good mediator?
[1] Conciliation is a fourth, distinct form of dispute resolution, but is not discussed in this paper.