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Can We Talk? Overcoming Barriers To Mediating Private Transborder Commercial Disputes In The Americas, Don Peters

Vanderbilt Journal of Transnational Law

This Article examines cognitive and cultural barriers creating the relatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges presented by transborder commercial litigation. It then presents 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, loss of outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights-based perspectives that obscure business interest-based solutions.

This Article next examines several cognitive biases that impair rational decision making …