supplementary information brought to our attention. We talk to our advisors about each applicant and make sure that their qualifications meet our criteria and are arbitrators that we think would meet our user’s expectations for a list that the AAA-ICDR would prepare for a particular life sciences dispute. What are some of the attractive features of the ICDR’s rules for international cases? Martinez: Before addressing that, let me say that, in the international context, we find mediation to be a really great tool to incorporate in your alternative dispute resolution process. You see it in escalation clauses, where the parties may decide to negotiate for a period first, then they go to mediation for a set period and then go to arbitration. We would like to see an increase in the use of mediation because it really is a win-win. At the end of the day in mediation, the parties have to agree to a settlement. You don’t have to risk an arbitration award going against you. You are actually participating and have control over the eventual settlement. I have found that in
the international context, where parties may be really far apart and angry at each other and not seeing past their own interests, that mediation offers them an opportunity to hear the other side’s particular views on the case. With experienced mediators, whether they take an evaluative or a facilitative approach, they can have the parties now talking to each other, exploring the strengths and weaknesses of each of their respective cases. If they don’t reach a full settlement, they may settle some of the elements of the dispute, leaving less for the arbitration. It’s always been a win-win. And if they do reach a settlement, they just saved a tremendous amount of time and costs and perhaps preserved a valuable business relationship. That’s why when we did our last revision of the term rules that went into effect March of last year, we started off with revising the mediation rules and we changed the presumption. It used to be we offered mediation in all cases. Now the presumption is that mediation will take place concurrently with the arbitration. Once an arbitration is filed, we point to the rule that says the mediation will in fact take place. If the parties are not interested, they have to opt out of the mediation. We think that making it an obligatory part of the process has really helped. No side has to fear, “If I offer mediation, perhaps the other side will think my case is weak; that it’ll put me in a negative position,” because everybody’s going into the mediation. To your question about the international rules, we revised the international mediation procedures to make mediation more attractive, such as new language to help with enforcement of mediation awards. International arbitration rules follow international practice, which is different from commercial practice and the courts. For example, you don’t have discovery per se. Remember, these are cases that could involve parties from common law and civil law countries. The exchange of information through discovery as used in US courts is not considered appropriate for cases pursuant to the international rules. Requests for documents must be narrowly tailored and limited to documents you believe to exist. There are no phishing expeditions and the exchange of documents must be conducted in the most economical manner.
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