Japanese Yearbook of International Law
Published in 2020, Volume 63, pp. 147-166
Introduction: There are many ways disputes in the commercial world can arise, and as many ways they can be resolved. Just as different methods of alternative dispute methods have attracted more and more attention.
The Queen Mary University of London and White & Case LLP 2018 International Arbitration Survey ("QMUL Survey 2018") findings reveal that "there has been a significant increase in the combination of arbitration with ADR. Nearly half of the participants to the 2018 survey preferred the hybrid approach, as compared to just 35 percent in the 2015 survey findings. This is unsurprising in view of the benefits of using mediation as a prerequisite to starting arbitration. The mediation step allows for a "cooling off" period for parties, thereby avoiding the escalation of disputes for adversarial resolution as an immediate recourse. It also has a filtering effect: only the "truly" contentious issues in dispute proceed for resolution by arbitration. Overall, thus, the mediation prerequisite increases the prospects of preserving the parties' commercial relationship. Indeed, the QMUL Survey 2018 findings support the general dispute-avoidance mentality of business parties. Within the in-house counsel sub-group, it is reported that there is "a clear preference" for the twinning of international arbitration and ADR (60 percent) over international arbitration as a stand-alone mechanism.
As the 2018 Pound Conference Report further reveals, there is now a global interest in using mixed mode of dispute resolution. Hybrid dispute resolution usually features a combination of mediation and arbitration into a dispute resolution framework with multiple stages. These multi-layered modes of dispute resolution can thus be called "multi-tier dispute resolution" ("MDR"). However, despite its widespread popularity, the development of MDR has followed different pathways around the world. This essay aims to provide a global survey of the development of MDR. The essay comes in four parts. Part I would first introduce the concept and procedure of MDR. Part II then explores how MDR is developed around the world from a regulatory perspective. Afterwards, Part III would turn to examine the specific situation in some of the world's most prominent legal jurisdictions in the East and West. Last but not the least, Part IV provides some comparative observations on the trend in the global future of MDR.