Can We Talk? Overcoming Barriers to Mediating Private Transborder Commercial Disputes in the Americas
This Article examines cognitive and cultural barriers creating the relatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges presented by transborder commercial litigation. It then presents and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method, suffers from many of litigation’s disadvantages including excessive expense and delay, loss of outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights-based perspectives that obscure business interest-based solutions.
This Article next examines several cognitive biases that impair rational decision making regarding dispute resolution method selection in transborder commercial disagreements. Analyzing selective and partisan perception, egocentric and optimistic overconfidence biases, and fixed pie and win-lose assumptions, the Article integrates empirical research and anecdotal data to support the claim that these cognitive biases encourage arbitration and discourage mediation. This Article also analyzes ways that American business and legal culture encourages cognitive biases, which leads disputants toward adjudication and away from mediation, and how other cultural differences generate misunderstandings that contribute to the frequent choice to arbitrate rather than mediate private transborder commercial disputes.
This Article then suggests several strategies for overcoming these cognitive and cultural biases and analyzes how these proposals mirror techniques mediators commonly use to help disputants negotiate effectively. The Article concludes by explaining the currently minimal role in consensual dispute resolution played by formal trade regimes in the Americas and suggests how these provisions could encourage mediation and the effective outcomes this process often produces.