Introduction

Arbitration is the most preferred Alternative Dispute Resolution (ADR) method to settle a
dispute while mediation is the other preferred option. There are some disputes also combine
the use of arbitration and mediation such as med-arb or arb-med but using them in combine
is quite rare1. Hence, modifying the structure of arbitration and mediation could have the
possibility of improving the reliability of dispute outcomes, and when both of the resolution
methods are being used in combine the satisfaction of the result can also be improved. In
arbitration, disputes are agreed by both parties to submit to an individual of whom the
judgement can be trusted by them2. Each of the party presents their case to the appointed
arbitrator, then the arbitrator listens to the parties, analysing the facts and the debates, and
then come out with a decision. The final decision is then bind on the parties because the
parties have agreed with that, not due to any state’s coercive power.3 On the other hand,
mediation is a non-binding process, which means although parties agreed to submit their
debate to mediation, they are not required to comply with the mediation process after the
first meeting. Therefore, the parties can always remain their control in mediation and the
continuation of the procedure will depend on whether the parties would like to continue to
accept it. As the process of mediation is non-binding, it could also mean that a decision will
not be imposed on the parties, unless the parties voluntarily agree to accept a settlement
and conclude the mediation process. The mediator can not come out with a decision, unlike
arbitrator, they can only assist the parties to reach a decision to settle their dispute. 4 Both of
the resolution methods are having different structure, advantages and disadvantages. Thus,
the topic of the work is modifying the structure of arbitration and mediation to develop the
reliability of a dispute outcome and thus the possibility of the combine used of them could
also be increased. The intent of this research proposal is to develop and validate the
possible modification which can be done to improve the ability of arbitration and mediation in
resolving disputes and produce an outcome of better reliability. When the reliability of a
dispute outcome has been improved, either settling through arbitration or mediation, the
combine used of the two dispute resolution methods is likely to be more considerable by
parties also.

Positioning Statement
Arbitration is the most preferred ADR method but the global community has begun to feel
discourage with the delays, costs and the associated procedural formality of contemporary
arbitration. In relation, there are some institutions and individuals started to look for another
better way to resolve “cross-border commercial disputes”.5 Among other available options,
mediation has been established as the most preferred alternative option for both
international commercial arbitration and transnational litigation. 6 In the international business

1
Dilyara Nigmatullina, ‘The Combined Use of Mediation and Arbitration in Commercial Dispute Resolution:
Results from an International Study’ (2016) Journal of International Arbitration, page 75-76
2
Blackaby N, Partasides C, Redfern and Hunter on International Arbitration (Oxford University Press 2015) page
1
3
Ibid
4
World Intellectual Property, ‘Mediation: Frequently Asked Questions’
https://www.wipo.int/amc/en/mediation/guide/index.html#differ accessed 11th December 2020
5
SI Strong, ‘Increasing Legalism in International Commercial Arbitration: A New Theory of Causes, A New
Approach to Cures’ (2013) 7 World Arbitration and Mediation Review 117, 117-18.
6
John M Barkett, ‘Avoiding the Costs of International Commercial Arbitration: Is Mediation the Solution?’ in
Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers
community, there has been increasing support for mediation. There are multinational
corporations have adopted the use of early dispute resolution strategies and the obvious
corporations involved are Siemens and General Electric. Aside from multinational
corporations, there is a range of intergovernmental actors has increased in using global
mediation also, such as United Nations Commission on International Trade Law (UNCITRAL)
and World Bank.7 As a summarization, arbitration is the most preferred choice of resolution
method but the community also concerns about its disadvantages. Therefore, there is an
increase use of mediation. However, mediation procedure is of non-binding nature and
hence the unstructured nature of mediation could be a concern to parties as well due to the
reason of their dispute could remain unsettled. As both arbitration and mediation have
advantages and disadvantages, if the structure of these two resolution methods can be
improved, the final decision of a dispute could have the chance to be enhanced. In relation,
more parties will consider the combine used of arbitration and mediation also, such as med-
arb or arb-med. There are quite a number of people recognized the advantages of the
combined use of arbitration and mediation as the combination has the ability to save
business relationship, faster and save the cost of dispute resolution in comparison to only
arbitration, even professionals also recognize the advantages of the combined use of
processes 8 . However, in fact not many parties adopt the combination of arbitration and
mediation to resolve their disputes.9 Thus, if the disadvantages of arbitration can be reduced,
and the outcome of mediation can be more enforceable on the parties, arbitration can still
remain as the most preferred ADR method, and it is likely that more parties will also consider
the combined use of arbitration and mediation to increase the benefits of their dispute
outcome. Basically, the gap is between the structure of arbitration, mediation and the
benefits of parties can gain from using arbitration only or use arbitration and mediation in
combined. The gap is an important concern because parties who seek to use arbitration or
mediation only or combine the used of them are typically looking forward to have satisfying
dispute outcomes without any delay, over costs and to avoid trial.

Literature Review
In regards of modifying the structure of arbitration and mediation to develop the dispute
outcome reliability and hence there could be a rise in the combined use of the two dispute
resolution methods also, there were some existing works can be used to provide certain
supports. A scholar named S.I. Strong, has pointed out the view in one of his works that it is
essential for law and policymakers not to overlook the necessity to take account of “high-
level structural” problems, as both empirical research and experience recommended that
incompetent in appreciating how mediation can fit into international dispute resolution
system has been one of the main reasons why mediation did not manage to thrive in the era
of post-World War II10. Moreover, every State also need to determine whether they have the

2010 (Martinus Nijhoff Publishers 2010) 359, 364; Jacqueline Nolan-Haley, ‘Mediation: The “New Arbitration”’
(2012) 17 Harvard Negotiation Law Review (2012) 61, 66-67 (Nolan-Haley, Mediation).
7
United Nations Commission on International Trade Law, Working Group II (Dispute Settlement), Sixty-eighth
Session, Annotated Provisional Agenda, 2-4, UN Document A/CN.9/WG.II/WP.204 (22 November 2017)
(UNCITRAL, Provisional Agenda) (outlining historical consideration of international mediation (conciliation) by
UNCITRAL).
8
Ibid 1
9
Ibid 1
10
S.I. Strong, ‘Applying the Lessons of International Commercial Arbitration to International Commercial
Mediation: A Dispute System Design Analysis’ (2018) Social Sciences Research Network Electronic Paper
Collection page 33-36
intention to position international commercial mediation on the equal level as international
commercial arbitration and prove why the decision is deemed right. S.I. Strong has
emphasized the concept of comprehensive structural considerations could affect the use and
development of international commercial mediation. 11 Another scholar named Dilyara
Nigmatullina, has stated in her work that the combined use of mediation and arbitration, in
whatever sequence and despite whether the dispute resolution is managed by different or
same neutrals, in international commercial dispute resolution, the combination has been
adopted on a relatively low extent. Furthermore, arbitration institutions almost never
recommend parties to consider the combined use of mediation and arbitration, regardless
there is a high demand on the combined use in fact, and almost every participant of her work
realized some advantages of the combined use of mediation and arbitration. 12 In addition,
the scholar named Ellen E. Deason had suggested using the same neutral for the
combinations of mediation and arbitration to save costs, and discard the need of identifying
and appointing another neutral. However, there are certain risks of using the same neutral
as well and hence party has the right to decide whether to use the same neutral before
starting the arbitration process.13
In relation to the existed works, the research on modifying the structure of arbitration and
mediation to develop the reliability of a dispute outcome and thus the possibility of the
combine used of them could also be increased is fit because structural consideration could
affect the use of each of the dispute resolution method. The gap between the structure of
arbitration, mediation and the benefits that parties can gain from using one of them or both of
them in combined should be positively reduced. Although there are already existing works
concerning on the structural issues of mediation by suggesting to apply a binding global
instrument to facilitate agreements’ enforcement to involve in cross-border commercial
mediation and it is agreeable that the structure of mediation needs to be developed, the
structure of arbitration also need improvement to reduce the parties’ concerns. Cost is one of
the concerns as parties will need to pay the fees and expenses of the arbitrators, may need
to pay the “administrative fees and expenses of an arbitral institution”, and appointing a
secretary or administrative assistant to administer the proceedings may also be necessary.
Moreover, to run an arbitration, parties will need to rent rooms for hearings and meetings
instead of utilising the public facilities of the courts of law. 14 To reduce costs, it is
suggestable for parties to include an arbitration clause about the hearing of arbitration
should be conducted in the nation where the party resides or does business as international
arbitrations can generally be conducted in a ‘neutral’ country. However, it is still unknown
that how many parties will actually include the arbitration clause during the agreement
formation stage, and if there is a prescribed arbitral institution, would they inform the parties
to do so. Delay is another main concern of parties in arbitration. The concern at the
beginning is about the time may need to constitute an arbitral tribunal and thus the arbitral
procedure can begin to move forward. While at the end of the arbitration, the concern is
about the time of some arbitral tribunals needed to make their award, it could be months, a
year or more. Even though there are some established arbitral institutions aware of this
problem and require the arbitral award to be delivered within six months from the last

11
Ibid
12
Ibid 1 page 74-75
13
Ellen E. Deason, ‘Combinations of Mediation and Arbitration with the Same Neutral: A Framework for
Judicial Review’ (2013) Volume 5, Arbitration Law Review, page 2019
14
Ibid 2 page 36
signature to the reference terms 15 , there are still some other arbitral institutions do not
actually provide an exact time period for the arbitral award be delivered to avoid
unnecessary delay or expenses.16 For example, the International Chamber of Commerce
(ICC) has included an arbitration rule of a six months’ time limit from the last signature to the
reference terms where the arbitral tribunal must provide its final award 17 , the Stockholm
Chamber of Commerce also included similar arbitration rules by having a set time limit of six
months from “the date of the case was referred to the Arbitral Tribunal” for the final award to
be made18, while for other institutions such as the London Court of International Arbitration
(LCIA), has simply only provide that the final award should be made “as soon as reasonably
possible” counted from the last submission date19, there is no set time limit. In order to avoid
delay, parties are advised to choose an arbitral institution with institutional rules of setting a
time limit to deliver an award and it is also examinable whether the community would wish to
have all arbitral institutions to have a set time limit to deliver arbitral award. Last but not least,
it is also worth determining whether there are more parties would prefer to have procedural
formality in their dispute resolution as the procedural formality associated with contemporary
arbitration is also one of the concerns of parties in arbitration but the possibility of dispute
could remain unsettled is a concern in mediation as well.

Proposed Methodology
The first proposed method of this research proposal is doctrinal research to prove the
structural issues on arbitration and mediation is a main concern and there are still rooms of
improvement for both dispute resolution methods. The issues of arbitration could be the
costs, delay and associated procedural formality. While the problem of mediation could be
that the dispute may remain unsettled as this dispute resolution method is of non-binding
nature. The term “doctrine” is obtained from “doctrina” which is a Latin noun, and it means
knowledge, instruction or learning. Doctrinal research consists of legal ideas and principles
of all types such as cases, statutes, and rules20. “A synthesis of rules, principles, norms,
interpretive guidelines and values” is basically the definition of the word “doctrine”. As part of
a bigger law system, the definition “explains, makes coherent or justifies” a law segment.
This method of research is the heart of any task of a lawyer as the research procedure is
applied to “identify, analyse and synthesise” the law content21 and the method is also the
usual method of research of every law student.
The second proposed method is quantitative data collection via questionnaire. Create a set
of questions on the background of the questionnaire participants, whether the community will
usually include an arbitration clause of arbitration should be held at the place where they
reside or does business during the agreement formation stage, whether the participants
agree there should have rules required all the prescribed arbitral institutions to inform the
parties to include the arbitration clause as in general, international arbitrations can be
conducted in a ‘neutral’ country. Next, questions regarding whether the community agree

15
Victoria Clark, ‘Time limits for awards: the danger of deadlines’ (Thomson Reuters, 3 August 2016)
http://arbitrationblog.practicallaw.com/time-limits-for-awards-the-danger-of-deadlines/ accessed 13
December 2020
16
Ibid 13 page 37
17
International Chamber of Commerce (2021 Arbitration Rules), Art 31
18
Arbitration Institute of The Stockholm Chamber of Commerce, Art 43
19
The London Court of International Arbitration, Art 15(10)
20
T. Hutchinson and N. Duncan, ‘Defining the Doctrinal’, Deakin Law Review 17(1), 2012, 84.
21
Ibid
that all established arbitral institutions should set a time limit to deliver the arbitral award are
going to be included as not all arbitral institutions have done so and this could prolong the
whole arbitration process for the parties who are not aware of finding the arbitration
institution with a set time limit at the beginning. In regards of mediation, the questionnaire is
going to include questions on whether the community agree to have certain procedural
formality in this dispute resolution method to reduce the possibility of the dispute remain
unsettled. Lastly, there will be questions on whether the community agree if the structure of
arbitration and mediation have been improved, there will be better dispute outcomes and will
also have more parties considering the combined use of arbitration and mediation.

Time Frame
The work will be divided into to two parts, one part is doing doctrinal research and writing,
another part is creating the questionnaire, distribute to participants and analyse the data
collected. The dissertation is going to last for eight months. Estimate first three months will
be used to do doctrinal research and writing, the following two months will be for creating the
questionnaire, distribute to participants, then the next three months will be used to analyse
the data collected and complete the writing.

Conclusion
In conclusion, the implication of this research studies is to modify the structure of arbitration
and mediation to resolve the current structural issues of these two dispute resolution
methods in order to improve the reliability of a dispute outcome and thus there will be more
parties going to consider the combined use of arbitration and mediation also. The scope of
this research is within international commercial dispute resolution, the perspectives on
international commercial arbitration and mediation. While the limitation of this research could
be the participants involved, as it is not definite that every participant would have used
arbitration or mediation or both dispute resolution in combined before.