Are mediation clauses binding and mandatory?

• Author: Miruna Constantinescu/Monica Simona Corchis
• Pages: 53-63

Are mediation clauses binding and mandatory?

Master student Miruna CONSTANTINESCU1

Master student Monica Simona CORCHIŞ2

Abstract

This study analyses the legal force of mediation clauses in the common law

systems and civil law systems with a main focus on the Romanian approach. F irst, the

introductory section illustrates the paradox between the concept of binding and mandatory

effect and the mediation mechanism, a voluntary manner to settle disputes.

Notwithstanding, the possibility to coerce the parties to eng age into a mediation, the

voluntary character of the process is illustrated by the parties’ freedom to decide whether

they settle or not. Second, the role of mediation clause is analysed and its advantages are

briefly described. Third, th e non-compliance of the prior mediation mechanism is

presented, the starting point of the discussion being represented by the manner in which the

parties drafted the mediation clause. A carefully drafted mediation clause, reflecting the

parties’ consent, can deter mine a court or an a rbitral tribunal to enforce such clause.

Fourth, the study ends by mentioning the approach adopted by different national courts,

emphasizing the Romanian legal perspective.

Keywords: mediation clause, mandatory, non-compliance, voluntary process.

JEL Classification: K12, K40, K41

1. Preliminary considerations

The question whether mediation clauses are binding and mandatory may

seem strange at first because mediation is essentially a voluntary method to settle a

dispute3 and its purpose is to avoid lengthy proceedings and even reduce the

number of iss ues that may eventually have to be decided by a state court or by an

arbitral tribunal4. Therefore, a few explications are necessary.

As with any other civil or commercial contract, the parties may be in

dispute about the existence or the length of their obligations that arise from t heir

agreement. In this case, it may be considered even natural to refuse to engage in a

mediation procedure once first negotiations between the parties have failed. In fact,

the only difference between an attempt of one of the parties to negotiate and

1 Constantinescu Miruna – MA, Criminal Sciences, Faculty of Law, University of Bucharest ,

Romania constantinescu_miru@yahoo.com

2 Corchis Monica – MA, International Economic Law, Paris I - Panthéon Sorbonne University,

France, monicacorchis@gmail.com

3 Hanks, Melissa, Perspectives on mandatory mediation , University of New South Wales Law

Journal, Vol. 35, No. 3, 2012, p. 929.

4 Laura-Dumitrana Rath-Boşca, Considerations on the development of mediation in Romania,

AGORA International Journal of Juridical Sciences, No. 4, 2015, p. 23.