In 1994, a French client I had been advising for about twenty years was entangled through its US subsidiary in a commercial dispute with a US customer which was then pending before the US District Court for the Eastern District of Pennsylvania.

The likely outcome of the case was bleak, and insurers were involved which made it even worse.

I persuaded the chairman of the board of the client that mediation was worth trying and we then proceeded to secure the cooperation of the US Counsel to the US subsidiary.

Then a potential mediator had to be selected, which proved to be easy, because both litigants trusted an Irish businessman who used to have extensive business dealings as a middleman for both.

Although he was not technically independent, this was no problem as the fact was known and accepted by both sides.

Opposing counsel and me decided to use a particular set of mediation rules (the then current ICC Conciliation Rules) but without making any actual reference to the ICC secretariat to save costs, so this was in effect an ad hoc mediation.

A letter was drafted, which the US lawyers jointly signed and sent to the mediator, asking him to agree to mediate the dispute on the terms stated in that letter, and to confirm his agreement to do so by returning to all parties a copy of the letter signed by him.

The Irishman had no previous experience as a mediator, but he learned quickly on the job, and again this did not create any problem.

The proceedings in the US District Court were stayed, and the mediation meeting took place in December 1994 in New York.

It lasted for one and a half days and resulted in a written and signed settlement agreement which broke a serious deadlock and saved my client a lot of pain, aggravation, and fees.


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