Are mediation clauses binding and mandatory?
Master student Miruna CONSTANTINESCU1
Master student Monica Simona CORCHIŞ2
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 ,
2 Corchis Monica – MA, International Economic Law, Paris I - Panthéon Sorbonne University,
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.