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Washington and Lee Law Review Online

Abstract

Scholarly debate is meant to improve the legal community’s understanding of both the value and the limitations of a particular strand of research. While it is useful to identify areas of principled disagreement, there are times when criticism is not based on different interpretations of law or theory but instead on a misapprehension of the underlying facts or the context in which the initial analysis is placed. In those types of situations, it is necessary for the original author to provide a formal response to keep errors from entering into the legal literature.

This Article provides just such a response to a review of an empirical study of the use and perception of international commercial mediation. While the review in question identifies a number of concerns that are well-taken at the theoretical level, the manner in which those concerns are applied to the original research reflects a number of misconceptions about the nature of the underlying study as well as the realities of international commercial law and practice.

Interestingly, many of the issues raised in the review are typical of the kinds of apprehensions and arguments enunciated by specialists in domestic dispute resolution. As a result, this Article not only sets the record straight with respect to a number of criticisms levelled at the original research but also provides a useful discussion of how the law, practice, and study of international commercial mediation differ from that of national mediation. As a result, readers will be better able to gauge the validity of the underlying empirical study and engage with the field of international commercial mediation going forward.

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