Exploring research regarding mediation party preferences and mediation within commercial arbitration

• Date: 01 June 2020
• DOI: http://doi.org/10.1002/crq.21278
• Published date: 01 June 2020

RESEARCH ARTICLE

Exploring research regarding mediation

party preferences and mediation within

commercial arbitration

Rebecca Storrow

1

| Harold Coleman Jr

2

1

American Arbitration Association,

Miami, Florida

2

American Arbitration Association, Los

Angeles, California

Correspondence

Rebecca Storrow, American Arbitration

Association, Commercial Vice President,

Miami Regional Office, American

Arbitration Association, 100 SE 2nd

Street, Ste. 2300, Miami, FL 34997.

Email: storrowr@adr.org

Abstract

Mediation is a valued alternative dispute resolution

process in commercial business disputes. When used

prior to arbitration or litigation, mediation is helpful in

narrowing disputes and supporting settlement. When

included as a supplemental step within other processes,

mediation has additional benefits. It is worthwhile to

explore the barriers and benefits counsel cite regarding

mediation. We will consider participants' underlying

assumptions surrounding how and when to mediate using

American Arbitration Association

®

(AAA) User Surveys

and data from 2,814 AAA cases closed in 2018. Practice

and extant literature indicate that early mediation reduces

the financial, emotional, and relational costs of business

disputes.

1|INTRODUCTION

Mediation is a valued alternative dispute resolution process in commercial business disputes.

Though often used prior to arbitration or litigation, mediation, when done well, can be a help-

ful process in narrowing and even settling disputes when included as a supplemental step.

Given the benefits of mediation, it is worthwhile to explore the barriers counsel cite for not

choosing to mediate so mediation practitioners may improve their process. One barrier is the

assumption that substantial discovery must be exchanged for mediation to be productive. This

is despite the axiom within the mediation field that mediation is most effective when conducted

early and often. However, this assumption is not the only barrier.

Counsel may also raise cost or security concerns, for which alternatives such as online medi-

ation and other technology are not yet accepted as systematically viable options. Especially

when there are power imbalances or entrenched disputes between parties, mediation can

Received: 2 October 2019 Revised: 22 February 2020 Accepted: 25 February 2020

DOI: 10.1002/crq.21278

Conflict Resolution Quarterly. 2020;37:289–303. wileyonlinelibrary.com/journal/crq © 2020 Wiley Periodicals, Inc. 289