Mediation offers a party-driven approach to dispute settlement. The mediator's role is to facilitate the parties' negotiations, for example, by helping each party to identify its interests, overcome barriers to settlement, and develop possible settlement options with the parties. Mediation is entirely voluntary and typically based on a written mediation agreement between the disputing parties.
The concept of finding amicable solutions through negotiations is not new: it is found in many multilateral investment treaties, often referred to as the "amicable settlement period" or "cooling-off period". For example, Article 10.15 of the Central American Free Trade Agreement states that "the claimant and the respondent should initially seek to resolve the [investment] dispute through consultation and negotiation, which may include the use of non-binding, third-party procedures such as conciliation and mediation." Article 26 of the Investment Agreement for the COMESA Common Investment Area requires a six-month cooling off period, during which the parties "shall seek the assistance of a mediator", unless an alternative method of dispute settlement is agreed upon.
The mediation process is flexible, in order to adapt to the specific needs of the parties, the circumstances of the dispute, and possible involvement of non-disputing parties. It typically commences with a joint opening session, followed by written statements and meetings amongst the parties and the mediator(s) and/or separate meetings between the mediator and each party. The IBA Investor-State Mediation Rules provide a legal framework specifically designed for mediation in the investor-State context, offering a helpful starting point for parties interested in pursuing investment mediation.
Timing of a Mediation
Parties may choose mediation as a standalone process, or in connection with an arbitration, either prior to, during or following the arbitration proceeding. As noted above, a mediation procedure is required by some multilateral treaties prior to the institution of an arbitration proceeding. However, mediation may also be conducted in parallel with an ICSID arbitration proceeding, provided that the parties agree in writing. In practice, the arbitration is likely to be stayed pursuant to a party agreement while the mediation is ongoing. Hence, it is largely in the hands of the parties to decide at what point a mediation could assist in settling some or all aspects of their dispute.
Outcome of a Mediation
Unlike an arbitrator, a mediator does not resolve the parties' dispute through a binding decision. Instead, the mediator assists the parties in finding customized settlement options, which may involve the payment of compensation or other actions to be taken by the parties pursuant to their settlement agreement. Ultimately, the parties decide whether to enter into a settlement agreement, and define the scope of such settlement and its terms. Should the parties reach an amicable settlement through mediation, this may be incorporated into a tribunal award pursuant to ICSID Arbitration Rule 43(2). The settlement would then benefit from the simplified enforcement mechanism that is unique to the the ICSID Convention.
ICSID supports efforts by parties to resolve investment disputes through mediation at all stages of a dispute. It provides its facilities and administrative services, including a dedicated staff team which assists the parties and the mediator(s) throughout the process. ICSID administrative assistance may include identifying qualified mediators, facilitating communication between the parties and the mediator, handling all aspects related to the organization of joint or separate mediation sessions, and managing the finances of the process. ICSID is in the unique position to offer state-of-the-art conference facilities at the World Bank's offices around the world. Parties to mediation proceedings are free to select the services desired. For further information, please contact us at ICSIDsecretariat@worldbank.org.
As part of its efforts to increase knowledge about investor-State mediation, ICSID has co-organized a series of events on the topic, including a three-day course for experienced mediators and government officials aimed at providing the skills necessary to mediate investment disputes, and a conference on investor-State mediation "Perspectives from States, Mediators & Practitioners".
At a recent mediation training course, ICSID interviewed the trainers and asked them to outline some of the techniques used in mediation and the considerations parties should bear in mind when considering mediation. These interviews will be published online in the coming weeks.
Additional trainings on mediation are planned for 2018. Details will be made available on this page as they become available.
May 11, 2018
(Paris)Key Issues in Internationl Arbitration: Advocacy, Damage Calculation, Settlement and Cybersecurity
May 2, 2018
(Abu Dhabi)Investor State Dispute Settlement (ISDS) and the Development of Investor State (IS) Mediation (save the date)
February 27, 2018
Making Mediation Work for States and Investors
“Anna Joubin-Bret on investor-State mediation”
Making Mediation Work for States and Investors