Abstract
Culture can profoundly affect a dispute resolution process. For indeed, far from merely a function of practical and procedural efficiency contemplated by disputing parties, the choice of a dispute resolution mechanism-whether mediation, arbitration or litigation- within the forum of a certain society is strongly influenced by the peculiarities of tradition, culture, and legal evolution of that society. Such is the case in China. A heightened awareness of the theoretical and practical issues found in cross-cultural negotiations and arbitrations has taken hold among legal practitioners and the business elite, as the worldwide community increasingly interacts through commercial globalization and economic integration, and diverse societies at variegated levels of legal development confront each other with commercial disputes. Especially in China, disputing parties from different cultures now face a critical balancing act, weighing the positives and negatives when deciding between mediation or arbitration. Of course, within the context of cross-cultural commercial dispute resolution, selecting a particular mechanism to resolve a dispute need not be an either-or choice. A blended approach (i.e., combining mediation and arbitration into one distinct process with two phases) can be a viable option for parties, depending on whether the lex arbitri or the institutional arbitration regime allows for such a blending. Allowing this blending to occur (and truly benefiting from it) will depend, inter alia, on the nuances of tradition, culture, and legal evolution.