The most recent White & Case Queen Mary University of London (QMUL 2025) survey reported that 87% of respondents chose international arbitration to resolve cross-border disputes; 48% of those respondents chose to combine arbitration with other ADR processes (mechanisms such as mediation, expert determination, and dispute boards). While 48% is a significant number, it is a slight drop from the 59% reported in the 2021 QMUL survey. Why the decline? The QMUL 2025 survey cites cultural differences as a possible explanation—noting that Europe favors standalone arbitration, while the Asia-Pacific region shows a preference for a more collaborative approach. The survey also notes that "ADR has not yielded as positive an experience" for some and suggests this may reflect concerns about the "efficiency of specific ADR processes rather than calling into question the overall value of collaboration itself.”[1]
With respect to mediation, it is being used with increasing frequency: more parties are including mediation requirements in their contracts, arbitral institutions are adding mediation options to their rules, and courts around the globe are either encouraging the use of mediation or mandating it through specific programs. This active partnership in resolution between the courts, arbitral institutions, and mediation is a positive development. However, from a practitioner’s viewpoint, these choices are often still viewed through an "either/or" lens—seeing these options as competitive routes rather than parts of a collaborative package.
As a neutral, I have seen mediation opportunities wasted. Words of "good faith" are often uttered while actions indicate a "check the box" agenda, whether to satisfy a contractual or court-ordered obligation. I have also seen participants rush to mediation with the intention of saving time and money before the matter (or the parties) were actually ready. Conversely, I have seen parties who required an adjudicatory determination on a specific issue spend years and significant capital arguing over peripheral matters that could have been easily resolved in mediation. These shortcomings can be solved with better planning.
Those who have worked with me know that I take a "holistic" approach to dispute resolution. Before I became a panel member of the AAA-ICDR, I applauded its rules for embracing a combined approach to resolution. For the 2024 and 2025 Paris Arbitration Weeks, I created and moderated panels of experienced international mediators, arbitrators, practitioners, and educators on this very subject. A holistic approach encourages the consideration of all resolution tools—sometimes in combination—in a manner that best suits the circumstances and the client’s goals. In my professional opinion, the 11% decline in the QMUL 2025 survey stems from a lack of holistic planning; mediation was likely used at a less-than-optimal time, or there was no pre-mediation conference with the mediator, leading to frustration. Mediation is a vital tool in the dispute resolution toolbox, but its effective use requires deliberate process design and preparation.
While not exhaustive, the checklist below is intended for use when a dispute arises to assist counsel in determining if, when, how, and to what extent mediation should be used. Review this list and discuss these considerations with your client. If mediation would be additive to the resolution of the dispute, consult a qualified mediator about timing, process design, and your client’s specific interests. Discuss with the mediator the checked boxes in this list. Remember, success lies not only in having the tools available, but in knowing how (and when) to use them.
I. IS MEDIATION REQUIRED: CLAUSES, ARBITRATION RULES, OR COURT REFERRAL
No → Go to Section II.
A. Dispute Resolution Clause
🔲 Does clause identify a trigger for a mediation? 🔲 Is there a deadline /window for compliance? 🔲 Is mediation a condition precedent to litigation /arbitration? 🔲 Does the clause define when the mediation requirement has been fulfilled? 🔲 Are there consequences for failing to mediate (e.g., inability to collect attorney fees)? 🔲 Is the statute of limitations tolled during mediation? (If not, can the parties agree to toll the statute of limitations during mediation?)[2]
🔲 Did the opposing party initiate an adjudicatory proceeding without mediating? If yes → What is the jurisdictional authority regarding the enforcement of the mediation obligation?[3] 🔲 Specific enforcement? 🔲 Stay or dismissal of adjudicatory proceeding? 🔲 Can you stipulate to stay adjudicatory action pending mediation?
🔲 Is the matter ready for mediation? (See, Sec. III, below) If no → 🔲 Can you stipulate to mediate at a specified later date/after a specific event? 🔲 Mediate discrete issue(s) now? 🔲 Conduct mediation in stages?
B. Court referral requiring mediation
🔲 Is there a time frame for compliance? 🔲 Is the matter ready for mediation within that time? (See, Sec. III, below) 🔲 If no → 🔲 Can you stipulate to continue compliance date? 🔲 Mediate discrete issue(s) now? 🔲 Conduct mediation in stages?
C. Despite the mediation requirement, are there any reasons mediation may not be appropriate?
🔲 Subject matter (e.g., administrative interest, government party, public officer?) 🔲 Client competency (e.g., cognitive impairment) 🔲 Other statutory or ethical rule prohibits mediation?
II. STRATEGY: SHOULD MEDIATION BE CONSIDERED?
If no obligation exists, use the following drivers to determine whether the dispute/conflict should be mediated. For example, where parties need a flexible or creative resolution or would like to preserve or repair a relationship, those considerations suggest mediation should be explored.
A. Party’s interests/needs
🔲 Preservation, rehabilitation of business (or personal) relationship, interests that need to be considered. 🔲 Restructuring of existing obligations to fit current needs. 🔲 Goodwill between parties or in the community. 🔲 Financial considerations. 🔲 Is the collectibility of the award/ judgment a concern? 🔲 Bankruptcy concern (for any party)? 🔲 Need for financial flexibility of any payment obligation?
Beyond attorney’s fees, other concerns/costs to consider. 🔲 Reputation (personal/business). 🔲 Use of human resources (personal/business). 🔲 Liquidity concerns. 🔲 Supply/construction loan/financing deadlines. 🔲 Investor/board/shareholder or other third-party pressure. 🔲 Future sale/merger. 🔲 Accounting issues? 🔲 Personal issues (family, health). 🔲 Impact on third parties. 🔲 Reputation or confidentiality concerns. (e.g., trade secrets/financials) 🔲 If in litigation, is filing under seal a possibility? (consider costs and time).
Emotional driver(s) beyond financial considerations. 🔲 Relieve guilt. 🔲 Personal accountability. 🔲 Change of policy/behavior. 🔲 Create communication/dialogue. 🔲 Opportunity to privately right a wrong.
🔲 Time is of the essence. 🔲 Is the matter ready for mediation? 🔲 If there is an arbitration clause, do the rules provide for expedited arbitration or early determination for manifestly unmeritorious claims?
🔲 Need for interim relief /order. 🔲 Could parties mediate interim relief? 🔲 If there is an arbitration clause, is the tribunal constituted with power?
🔲 Is the party interested in public vindication or creating public awareness? 🔲 Is there a need for transparency? 🔲 Is a state entity involved, and/or a confidential proceeding may pose a problem? 🔲 Is the party interested in publicly rehabilitating its reputation? If yes to any → Litigation may be preferable. 🔲 Can arbitration proceedings be “open to the public” or is a redacted award possible?
B. Precedent or principle
🔲 Is there a need to change/interpret the law/set a precedent? 🔲 Do parties require a ruling? (i.e., ownership issue, contractual interpretation, public policy). 🔲 Question of morality or principle? If yes to any → Litigation or arbitration may be preferable; however, explore the underlying reasons/needs with a mediator.
🔲 Is there a benchmark concern? (e.g., settlement in would affect other pending matters) 🔲 Is there a standard contract clause or company policy at issue? If yes to either→ Could a confidentiality clause in a settlement remedy this concern? If no → Litigation or arbitration may be preferable.
🔲 Are there other issues that can be mediated? (e.g., damages, accounting or discovery issues)
C. Relief sought
🔲 Injunctive relief necessary? 🔲 Can parties agree to do/refrain from an action in mediation (e.g., construction, neighbor disputes). If yes → Mediation may be possible. (Consider relationship, party interests, and possible enforcement issues.) If no → adjudicatory proceeding may be necessary.
🔲 Non-monetary relief sought (e.g., services, a press release, other contracts/business) 🔲 Creative solutions would be beneficial (e.g., structured settlement, creative financing, etc.) If yes → consider mediation.
D. Is there a power imbalance?
🔲 Authority/power/financial imbalance? 🔲 Educational/mental/cognitive or health concern? 🔲 Is a party self-representing? 🔲 Does the opposing party have third-party litigation funding (TPLF)? If yes to any→ Discuss with a mediator the imbalance and the concerns it raises.
E. Enforcement /breach considerations.
Should you need to enforce a settlement/ judgment /award, what would that look like?
🔲 Domestic action? What is the law regarding enforcement? 🔲 Cross-border dispute? (See, Sec. IV.D, below).
III. READINESS: IS THE MATTER RIPE FOR MEDIATION
Use the following drivers to determine if the matter is ready for mediation.
A. Information and analysis
🔲 Are parties missing information they need to evaluate their case and that of the other side? 🔲 Expert reports or third-party consultations needed? 🔲 Appraisal or accounting needed? 🔲 Deposition or witness statements needed? 🔲 Construction, patent, or complex business dispute? 🔲 Are parties unable to conduct a risk analysis at this time? 🔲 Do you have a solid evaluation of your client’s likelihood of success at trial/arbitration? 🔲 Do you understand the vulnerabilities of your client’s case? 🔲 Do you understand the strengths and weaknesses of your opponent's case? 🔲 Dispute board decision needed? 🔲 ENE? 🔲 Expert determination?
If any boxes are checked → Speak with a mediator. Discuss the missing information with a mediator. An effective mediator can facilitate the exchange of information/documents and/or the creation of a process to use a jointly selected appraiser (as one example). This can save the parties time and money.
B. Emotional commitment
🔲 Are the parties emotionally committed to mediation, including being willing to listen? If no → 🔲 Will the passage of time create readiness? 🔲 Will an event / certain information encourage a party to be more amiable to mediation?
🔲 If tempers are high, can something be done to bring down the emotional temperature? 🔲 Is a public entity, state, or governmental agency involved, and is there hesitation to decide in mediation?
C. Leverage readiness
Is mediation preferable after a shift in leverage? 🔲 Jurisdictional award? 🔲 Denial /granting of demurrer, motion to strike, motion for summary judgment? 🔲 Injunctive relief? 🔲 Appointment of receiver or accountant? 🔲 Appeal or award? 🔲 In arbitration, early determination for manifestly unmeritorious claims? 🔲 In arbitration of less complicated matters, expedited arbitration procedures? 🔲 External factors that may affect leverage. (strike, change in law, etc.)
D. Is there a need to file an adjudicatory action prior to mediation?
🔲 Contractual requirement? 🔲 Protection of legal right? 🔲 Statutory requirement? 🔲 Statute of limitations issue? 🔲 Preserve enforceability under the New York Convention? 🔲 Inability to obtain the other party’s attention or cooperation? If yes to any → can you mediate, in whole or in part? Should you stay with adjudicatory action, or are the pressures of adjudicatory deadlines/obligations helpful to mediation?
E. Other financial concerns relevant to timing
🔲 Calculate the present attorney’s fees and costs. 🔲 Calculate estimated attorney’s fees and costs to bring the matter to judgment/award. 🔲 Consider the use of human resources and disruption to business. 🔲 Consider personal factors of the client (relational, health).
IV. PROCESS DESIGN: HYBRID & CROSS-BORDER CONSIDERATIONS
Use the following drivers for process design and the optimal use of mediation.
A. Scope of mediation
🔲 Mediate the entire matter. 🔲 Mediate the entire matter in stages 🔲 with or 🔲 without an adjudicatory proceeding. 🔲 Mediate certain issue(s) or procedures to mitigate costs/preserve the relationship/bring down emotional temperature, and adjudicate remaining. 🔲 Mediate partial substantive matters (i.e., jurisdiction, liability, damages) and adjudicate remaining. 🔲 Mediate post-award or judgment.
B. Hybrid processes: same neutral
Is this a matter in which using a single neutral (“double-hatting”) would be beneficial?
More efficient re: time/costs/finality? 🔲 Small(er) dispute/limited budget? 🔲 Have parties established trust with the neutral? 🔲 Neutral qualified to act as an arbitrator and mediator? 🔲 All parties represented by counsel? 🔲 Parties are informed of issues posed by using the same neutral (due process/compromise of confidentiality/compromise of award)? 🔲 Can risks/concerns be alleviated with informed consent? 🔲 Does waiver (of due process and other possible challenges) meet jurisdictional requirements? 🔲 Parties have opt-out option re: consent?
Order of processes (same neutral):
MED-ARB: Mediation conducted completely in joint session? If no → 🔲 are there be protections to assure due process (e.g., mediator provides assurances s/he will not use confidential information to influence/decide award) 🔲 Can mediator remain unbiased in arbitration process with the information s/he obtained in mediation? 🔲 What assurances? 🔲 Will a later arbitration affect how you/ your client negotiates/behaves in mediation? 🔲 Will you/your client hold back information from the mediator? 🔲 Could parties use a mediator's comments to improve their case in arbitration? 🔲 Could baseball/last offer arbitration be used? (Arbitrator decides using the last/best offers of parties; variations) 🔲 Could the award be challenged on due process or public policy reasons?
ARB-MED: 🔲 Can an arbitrator issue a sealed award before mediation? 🔲 Is the mediator’s neutrality compromised? Would a neutral (unknowingly) influence or coerce a settlement based upon an undisclosed award? 🔲 Party self-determination compromised? 🔲 Jurisdictional encouragement of arbitrator to attempt settlement proceedings?
ARB-MED-ARB: 🔲 Confidentiality issues? 🔲 Due process issues? 🔲 Can parties waive challenges to the award? 🔲 Could baseball/last offer arbitration be used? 🔲 Need consent award/ award on agreed terms? 🔲 Cross-border dispute? (See, Sec. IV.D, below)
C. Hybrid process: separate neutrals (consecutive or concurrent proceedings)
In addition to your analysis under Section III, above, consider the following drivers to ascertain when to mediate the matter with an adjudicatory proceeding, and to what extent:
🔲 Is the matter ripe for mediation?
🔲 Scope and goal(s) of mediation defined?
🔲 Are there issues that need to be decided in arbitration or litigation?
🔲 Should mediation be consecutive or concurrent with adjudicatory proceedings, given goals/needs?
🔲 What is the optimal timeframe for mediation?
🔲 Stay of adjudicatory proceeding during mediation, or is the time-pressure of adjudicatory proceeding beneficial?
🔲 Can partial mediated resolution be used or shared in an adjudicatory proceeding? 🔲 Can mediated resolution be converted to a consent judgment or consent award? 🔲 Cross-border: preserve enforcement under the New York Convention? 🔲 Preserve enforcement under the Singapore Convention?
D. Cross-border disputes
For cross-border disputes, use the following enforcement drivers to determine whether either the New York Convention or the Singapore Convention is applicable. (This may impact when and how you mediate).
🔲 Is enforcement jurisdiction a signatory to the New York Convention, or 🔲 Singapore Convention, or 🔲 both?
Consent awards. 🔲 What is relevant law on consent awards/award on agreed terms? 🔲 Has jurisdiction adopted UNCITRAL or have legislation which supports consent awards or awards on agreed terms? 🔲 Could there be a basis for a due process challenge under Article V of the New York Convention, given the hybrid approach used? 🔲 Can challenges be waived with informed consent? 🔲 What is informed consent?
International Mediated Settlement Agreements (iMSA). 🔲 Can you enforce the iMSA under the Singapore Convention? 🔲 Did the parties opt out of the Singapore Convention? 🔲 Has the enforcement state ratified the Singapore Convention? 🔲 Are there any exceptions or changes to state ratification? 🔲 Does iMSA meet the requirements of the Singapore Convention? 🔲 International ?🔲 Result of a mediation? 🔲 Assistance of a third party with no authority to impose a solution? 🔲 Was the mediator also the arbitrator? If yes → Singapore Convention may not apply 🔲 Is iMSA recorded and enforceable as an “arbitral award” as analyzed from the perspective of where relief is sought? If yes → Singapore Convention is not applicable.
🔲 Other enforcement considerations that affect process design
[1] Queen Mary University of London, & White & Case LLP. (2025). 2025 International Arbitration Survey: The Path Forward. https://www.qmul.ac.uk/arbitration/research/2025-international-arbitration-survey/
[2] The limitation period may not be tolled or suspended pending mediation proceedings in some jurisdictions.
[3] This depends on how the pre-arbitration mediation obligation is classified - “admissibility” or “jurisdictional”— and if the request is made before a court or arbitral tribunal. The majority of international authorities and commentators view pre-arbitration obligations as a question of “admissibility”, not jurisdiction.