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Are mediation clauses binding and mandatory?

Author

Listed:
  • Miruna Constantinescu

    (MA, Criminal Sciences, Faculty of Law, University of Bucharest, Romania)

  • Monica Corchis

    (MA, International Economic Law, Paris I - Panthéon Sorbonne University, France)

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. First, 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 engage 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, the 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 determine a court or an arbitral tribunal to enforce such clause. Fourth, the study ends by mentioning the approach adopted by different national courts, emphasizing the Romanian legal perspective.

Suggested Citation

  • Miruna Constantinescu & Monica Corchis, 2017. "Are mediation clauses binding and mandatory?," Juridical Tribune - Review of Comparative and International Law, Bucharest Academy of Economic Studies, vol. 7(1), pages 53-63, June.
  • Handle: RePEc:asr:journl:v:7:y:2017:i:1:p:53-63
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    More about this item

    Keywords

    mediation clause; mandatory; non-compliance; voluntary process.;
    All these keywords.

    JEL classification:

    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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