Are mediation clauses binding and mandatory?

• Main Authors: Constantinescu Miruna, Corchis Monica
• Format: Article
• Language: English
• Published: Bucharest University of Economic Studies 2017-06-01
• Series: Juridical Tribune
• Subjects: mediation clause; mandatory; non-compliance; voluntary process.
• Online Access: http://tribunajuridica.eu/arhiva/An7v1/5%20Constantinescu,%20Corchis.pdf

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.