Taiwan has had many legal provisions for multi-tier dispute resolution, including court-annexed mediation for civil disputes, family disputes and labour disputes. Based on the parties’ autonomy, the parties are free to choose their way of dispute resolution. If the parties explicitly agree in a contract to ‘first mediate, and then arbitrate’ or to arrange other multi-tier dispute resolution procedures, those clauses should be legally binding and enforceable. The multi-tier dispute resolution clauses could lead to a litigation or an arbitral proceeding as inadmissible. However, the effect of those clauses is not observed ex officio; a party has to raise the objection of non-compliance with the procedure. Since the performance of multi-tier procedural clauses does not affect the arbitral agreement and the jurisdiction of the tribunal, non-compliance with those clauses should not be a ground for setting aside the arbitral award.

In the USA, commercial contracts often include tiered or stepped dispute resolution schemes that comprise multiple, varied mechanisms for resolving conflict. Contractual relationships are particularly suitable for tiered processes that accommodate business priorities, although critiques raise issues regarding necessity, utility and enforceability. Where courts have found contractual negotiation or mediation provisions to be valid and enforceable, the manner in which they address non-compliance under such agreements varies. When a party to a multi-step process fails or refuses to participate in contractually required negotiation or mediation prior to arbitration, there may be issues as to whether the consequences should be addressed in court or via arbitration. Despite being conventionally disfavoured in the USA, many neutrals have experience with ‘switching hats’ – ie moving from being mediator to being arbitrator, or vice versa – in the course of resolving disputes. Guidelines for the use of multi-tier processes take into account the uncertainties associated with judicial handling of stepped agreements as well as their inherent complexities, while recognising potential benefits.

Multi-tier dispute resolution, a combination of mediation and arbitration or litigation, has recently been gaining in importance in international business transactions. While arbitration has the advantages of being confidential, professional and effective across borders owing to the 1958 New York Convention, mediation, geared towards amicable settlements, is time- and cost-efficient and supportive of preserving commercial relationships. Both methods can complement each other in ‘med-arb’, ‘arb-med’ or ‘arb-med-arb’. This chapter discusses cardinal issues surrounding multi-tier dispute resolution in Japan, particularly the enforcement of agreements to mediate as a condition precedent to arbitration or litigation, and the methods of combining mediation and arbitral procedures. At the same time, this contribution sheds light on recent developments and efforts being made in Japan to enhance international arbitration and mediation. This trend will soon bring about legislative reforms and may possibly result in the ratification of the 2019 Singapore Convention on Mediation.

This chapter provides a high-level comparative overview of how states around the world have regulated hybrid processes (med-arb or arb-med) involving the same neutral. Drawing on a database of national mediation and arbitration laws from 195 jurisdictions, it elicits broad regulatory patterns and seeks to determine whether they can be explained by reference to geographic region, legal tradition or a state’s level of development (measured by income level). The findings show that fewer than half of all jurisdictions surveyed legislate around same neutral hybrid processes. Of those that do, most are concentrated in Africa and Asia. Common law jurisdictions are less likely than civil law jurisdictions to regulate in this space, but when they do, they tend to be more thoughtful and innovative.

Although it is often said that combining mediation and arbitration using the same neutral is widely accepted in Continental European, Latin American, and Eastern Asian cultures, this is only somewhat borne out by national legislation. Assuming lawmaking mirrors culture, the study’s findings lend qualified support only to the idea that Eastern Asian cultures are receptive to same neutral arb-med.

Contributors to this book have discerned a welcome trend towards the greater use of multi-tier dispute resolution (MDR). But they have also identified the most problematic form of MDR as that where the same person acts initially as mediator and then, if mediation is unsuccessful, as arbitrator (‘med-arb’). Despite this, med-arb has significant advantages. It is likely to be cheaper than other modes of MDR and its mediation component enables parties to ventilate their genuine concerns and thereby tailor the resolution of their disputes to their real needs. This chapter considers ways of mitigating med-arb’s difficulties so that parties may fully reap its advantages. It discusses how to make med-arb agreements enforceable; how to balance the informality of mediation with the due process requirements of arbitration; and how to ensure that the outputs of med-arb, whether a mediated settlement agreement or an arbitral award, can be enforced.

Multi-tier dispute resolution, through which parties attempt to settle their disputes by combining non-adversarial with adversarial methods, can assist parties in resolving their disputes more efficiently. Recent surveys suggest that parties are increasingly interested in such methods but that the number of parties that actually adopt such methods does not reflect the growing interest. Drawing on over 1,000 disputes at the HKIAC, this chapter examines how common multi-tier dispute resolution clauses are, how they are drafted and in what types of dispute they appear. Attention is given to the 2018 HKIAC Administered Arbitration Rules, which are tailored for multi-tier dispute resolution methods. The chapter also explores broader regional and international developments that will impact movement towards mixed modes of dispute resolution, such as the Belt and Road Initiative, the Singapore Mediation Convention and the investment dispute mechanism agreed between the Hong Kong SAR and Mainland Chinese governments.

This chapter traces ADR’s rapid progress from the fringes to the centre of Canadian dispute resolution practice. Historically, Canadian lawyers and judges were suspicious of arbitration and mediation—mostly indifferent but sometimes outright hostile. Today, the landscape is radically different. Arbitration, mediation, and other forms of ADR are frequently chosen by parties and robustly supported by legislation and the courts; pre-trial mediation is even mandatory in four provinces (and encouraged in the others). The popularity of multi-tier dispute resolution agreements has correspondingly risen, and they are generally enforceable in Canada. The courts tend to interpret multi-tier agreements to limit jurisdictional hurdles and promote efficient resolution of disputes. Med-arb and other forms of mixed-method dispute resolution have a shorter history in Canada, and many practitioners remain skeptical of their propriety and efficacy. But they are starting to catch on, with new med-arb rules and a professional designation introduced in 2019.