Neutrality and Impartiality in Out-of-court Mediation

Mia Pedersen & Lasse Hansen

Student thesis: Master thesis

Abstract

For many years the civil courts have been the traditional dispute resolution in Denmark. However, for a long time mediation has been a recognized alternative to resolving commercial disputes in other countries. The reason for the international success is probably due to the fact that the dispute resolution is much cheaper, quicker, flexible and less formal and leaves the dispute resolution to the parties themselves.
However, regulation is necessary for the future success in out-of-court mediation. The parties in commercial disputes do not have the necessary certainty to the process yet, which is why this thesis will try to ensure out-of-courts mediator’s neutrality and impartiality.
This thesis will examine how best to ensure out-of-court mediator’s neutrality and impartiality, as this is considered to be one of the reasons for the lack of out-of-court mediation in commercial disputes.
There is currently no legislation governing the neutrality and impartiality of out-of-court mediators. It is therefore examined how such legislation can be adopted based on the regulation of neutrality and impartiality for respectively; courts, in-court mediation, arbitration and the Government administration.
In addition, this thesis will examine whether such legislation will affect the behavior of the respective parties, as well as increase out-of-court mediation as a dispute resolution.
How the respective parties use of out-of-court mediation is, as a dispute resolution is examined through a game theoretical perspective, in which the parties’ payoff is compared to continuing cooperation and termination of the parties’ cooperation.
This thesis concludes that if out-of-court mediation is to be used in commercial dispute, regulation of out-of-court mediator’s neutrality and impartiality is a necessity. Such regulation is shown to increase the parties’ certainty when assessing the outcome in out-of-court mediation.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2017
Number of pages123