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Abstract

Mediation offers enticing advantages over adversarial systems for the resolution of commercial disputes. Mediation preserves party autonomy by vesting process development and final-decision authority in the hands of the disputing parties. Despite these benefits, businesses underutilize mediation in international settings in part because of unpredictable enforcement practices predicated on varied national policies. This Comment considers the potential for enforcing mediated settlements as arbitral awards under the New York Convention. Enforcement under the New York Convention requires a series of modifications to mediation procedure. The Convention affects contracting, convening, caucusing, and the availability of creative solutions to disputes. Although waivers prove promising to resolve procedural challenges, substantive due process challenges present additional problems. Since the New York Convention was designed for immediate deployment, it fails to accommo¬date materially altered circumstances unlike contract and consent decree systems. These challenges illustrate the imperfect fit between mediation procedure and arbitration enforcement. Parties to a dispute must carefully weigh the loss in pro¬cedural efficiencies and public policy review against the relative certainty of international enforcement when deciding whether to pursue a mediated settlement under the Convention.

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