CAN WE TALK: OVERCOMING BARRIERS TO MEDIATING PRIVATE TRANSBORDER COMMERCIAL DISPUTES IN THE AMERICAS Don Peters

This article examines cognitive and cultural barriers creating the comparatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges of transborder commercial litigation. It then develops and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method , suffers from many of litigation’s disadvantages, including excessive expense and delay, sacrificing outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights based perspectives which obscure business interest-based solutions.

This article next examines several cognitive biases that impair rational decision-making regarding dispute resolution method selection. Analyzing selective and partisan perception, egocentric and optimistic overconfidence biases, and fixed pie and win-lose assumptions, the article integrates empirical research and anecdotal data to support the claim that these cognitive biases encourage arbitration and discourage mediation. The article also analyzes ways that American business and legal cultures encourage and reinforce cognitive biases leading disputants toward adjudication and away from mediation, and how other cultural differences generate misunderstandings that contribute to the frequent choice to arbitrate rather than mediate these disputes.

This article then suggests several strategies for overcoming these cognitive and cultural biases, and analyzes how these proposals mirror techniques mediators commonly use to help disputants negotiate effectively. The piece concludes by analyzing the currently minimal role played by formal trade regimes in the Americas and suggests how these provisions could do more to encourage mediation and the effective dispute resolution outcomes this process often produces.