St. John's Law Review

Teaching Comparative Perspectives in Mediation: Some Preliminary Reflections

By: Jacqueline Nolan-Haley

As international law and trade grows more complex, mediation is being viewed as an increasingly viable method of dispute resolution.  This increase in status is reflected in the recent promulgation of policy proposals and model codes such as the Green Paper, the Model Law on International Commercial Conciliation, and the Mediator Code of Conduct.  While this seems to indicate a growing consensus on the use of mediation and its standards, mediation in practice still varies greatly, and thus there remains a need for further comparative analysis on how and why mediation differs from country to country.

This paper encourages the use of mediation as a way to solve cross-border disputes, and discusses the importance of, and problems associated with, teaching comparatives perspectives in mediation.  Mediation is only newly institutionalized in legal cultures and varies by jurisdiction or country.  Lawyers who seek to master mediation as a tool for solving transnational disputes will thus benefit from increased academic study. 

This paper briefly discusses the challenges involved in such comparative analyses, including the scarcity of literature, the need to account for the cultural characteristics of individual countries, and even the basic problems of terminology.  In addition, it proposes several foundational questions and areas of comparison for future comparative assessments of mediation.