Combined mediation and arbitration mechanisms in the resolution of disputes relating to cross-border commercial operations

Abstract

This contribution has two objectives, addressed with different methodologies. Firstly, from a descriptive perspective, the combined arbitration and mediation formulas —ARB-MED, MED-ARB, ARB-MED-ARB— developed in the practice of international business as MASC/ADR are analyzed as mechanisms to achieve the best of both dispute resolution systems. Secondly, from a critical point of view, the reception of these hybrid mechanisms in the Spanish legal system is addressed, taking into account the general prohibition established in our arbitration legislation: Unless the parties agree otherwise, the arbitrator may not have intervened as a mediator in the same conflict between them (article 17.4 of arbitration law 60/2003).