Abstract

In Europe, mediation has historically taken a facilitative approach. It is therefore no surprise that Med-Arb – a hybrid dispute resolution mechanism combining elements of mediation and arbitration – is not high on the agenda of European politicians, academics and practitioners.
As a result of this (apparent) lack of interest in Med-Arb, it remains unclear to what extent contractual clauses referring parties to Med-Arb (“Med-Arb Clauses”) and arbitral awards resulting from a Med-Arb procedure (“Med-Arb Awards”) are compliant with European standards on due process of law.
It is this void this article seeks to fill. It will discuss the American experiences with Med-Arb and the pros and cons of Med-Arb forwarded in that context (Section 2). Against this background, the feasibility of Med-Arb from the perspective of European standards on due process of law is assessed. It is concluded that from a European perspective, no overriding concerns of law exist that should call a halt to Med-Arb. Parties must, however, discount certain specific EU standards when agreeing on and conducting a Med-Arb procedure.