Introduction: Why Dispute Settlement Matters in International Trade

When goods cross borders, risks follow. A late shipment, an unpaid invoice, or a disagreement over product quality can quickly turn into a costly conflict. This is why dispute settlement in international trade is a central part of doing business globally.

International trade involves multiple countries, different legal systems, and diverse business cultures. When disputes arise, they can disrupt supply chains, damage reputations, and result in financial losses. Knowing how disputes are resolved is essential not only for lawyers, but also for CEOs, business owners, and future lawyers preparing for careers in global trade.

There are four main mechanisms for dispute settlement in international trade: Negotiation, Mediation, Arbitration, and Litigation. Each has its advantages and challenges. Understanding them helps businesses choose wisely and students grasp the foundations of international commerce.

Why Do Disputes Happen in International Trade?

Disputes arise when expectations clash or agreements break down. The most common causes include:

• Non-payment: A buyer refuses to pay after delivery.
• Defective goods: Products don’t meet quality standards.
• Late delivery: Delays cause financial harm to the buyer.
• Regulatory issues: Customs or import restrictions block goods.
• Intellectual property disputes: Unauthorized use of brand or design.

Negotiation To Talk It Out

Negotiation is the simplest and most common form of dispute settlement in international trade. It involves direct discussion between the parties without third-party involvement.

Advantages: It is fast, inexpensive, and preserves long-term business relationships. Parties have complete control over the outcome and can agree on flexible solutions.

Disadvantages: The process has no legal guarantee of settlement. Success depends on the willingness of both sides to compromise.

Negotiation is always available, no matter what the contract says. It should be the first attempt before escalating further.

Mediation When A Neutral Person Helps

Mediation involves a neutral third party who helps both sides reach a voluntary agreement. The mediator doesn’t impose a decision but facilitates dialogue.

Advantages: Mediation is confidential, less confrontational, and usually cheaper than arbitration or litigation. It often preserves commercial relationships because the process encourages cooperation rather than conflict.

Disadvantages: A mediated settlement is not legally binding unless it is formalized in writing. More importantly, mediation only happens if both parties agree to try it, it cannot be forced by one side.

Arbitration Is The Global Favorite

International arbitration is a binding process where disputes are resolved by arbitrators chosen by the parties. International arbitration the most widely used method in dispute settlement in international trade, but only if the contract provides for it.

Advantages: Arbitration awards are binding and enforceable in over 170 countries under the New York Convention. Parties can choose a neutral forum, select arbitrators with expertise, and keep proceedings confidential.

Disadvantages: Arbitration can be more expensive and formal than mediation. Arbitration is only available if there is an arbitration clause in the contract, or if both parties later agree to arbitrate.  There also also complexity concepts in seat choice, and choice of laws including law of seat, law governing the arbitration agreement, law governing of the contract that practitioners need to master.

Litigation: Going to Court

Litigation means taking the dispute to national courts. In international trade, litigation is often used if the contract specifies courts, or if no arbitration agreement exists.

Advantages: Court judgments are backed by state authority and may allow for appeals. Courts can also handle issues beyond contracts, such as fraud or criminal claims.

Disadvantages: Litigation is usually slow and expensive. Foreign court judgments are often not enforceable internationally, which limits their usefulness in cross-border disputes. A company wins a case in its home country, but the losing party has assets abroad lead to the enforcement of such that judgment can be very challenging.

Additional Insight: Mediation and Arbitration Together

In reality, these methods are not always separate. Some contracts use tiered clauses, requiring mediation first, then arbitration if talks fail. This approach combines flexibility with enforceability.

This hybrid is sometimes called Med-Arb. It saves time and cost but raises concerns for instance statue of limitation, or if the same person acts as both mediator and arbitrator. One should understand this as an evolving practice in dispute settlement in international trade.

Comparing the Four Mechanisms in Practice

Although all four mechanisms are used worldwide, they differ in cost, speed, enforceability, and impact on business relationships.

• Negotiation is almost always the first step. It is informal, fast, and inexpensive, but carries no legal guarantee.
• Mediation adds a neutral third party to assist communication. It is less adversarial and protects relationships, but it only works if both sides agree to try it.
• Arbitration is the leading method in international trade, but only available if the contract includes an arbitration clause. It provides neutrality and enforceability, though it is more costly than mediation.
• Litigation is usually a last resort. It can be pursued when there is no arbitration clause, but international enforcement is uncertain, and proceedings can take years.

Taken together, the four mechanisms show that businesses must plan dispute resolution clauses carefully at the contract stage, because the options available later will depend on what has been agreed in writing.

Conclusion: What to Take Away

The four main mechanisms: Negotiation, Mediation, Arbitration, and Litigation form the backbone of dispute settlement in international trade. Each has strengths and weaknesses, and the right choice depends on cost, enforceability, and above all, what the contract allows.

This is the foundation of understanding how dispute settlement mechanism functions. For business owners, and international counsels, practitioners mastering these tools is essential to protect contracts and maintain trust in international markets.

Dispute settlement is not a simple ladder. Negotiation is always available, mediation requires consent, arbitration requires an agreement, and litigation applies if no arbitration clause exists. The key is in the contract.

Step-by-Step Guide to Dispute Settlement in International Trade

Step 1: Review your contract: See what dispute resolution clause is written (arbitration, court jurisdiction, or none).

Step 2: Attempt negotiation: This is always possible and often the most efficient first step.

Step 3: Check if mediation is possible: Only proceed if both parties agree, or if the contract includes a mediation clause.

Step 4: Use arbitration if agreed: If the contract specifies arbitration, or both parties consent later, initiate proceedings at the chosen arbitration center.

Step 5: Litigate if no arbitration clause: If the contract specifies litigation, or if no arbitration agreement exists, the dispute must go to court.

Step 6: Enforce the outcome: Whether arbitration award or court judgment, check if it is enforceable in the country where the other party has assets.

Frequently Asked Questions (Q&A)

Q1: Why is arbitration more common than litigation in international trade?

Because arbitration awards are enforceable under the New York Convention in over 170 countries, while court judgments are often not recognized abroad.

Q2: Can mediation really solve international trade disputes?

Yes, if both parties agree. Many disputes are settled through mediation, which saves time and money. But without consent, mediation cannot proceed.

Q3: What happens if the contract has no dispute settlement clause?

The parties must rely on national courts, unless they later agree to arbitration or mediation. This often makes disputes more costly.

Q4: What is Med-Arb?

It’s a hybrid process where disputes start with mediation and, if unresolved, continue to arbitration. It combines flexibility and enforceability but requires careful structuring.

Q5: How can businesses avoid disputes in international trade?

By drafting clear contracts with dispute resolution clauses, ensuring compliance with international standards, and maintaining good communication with partners.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

Source: https://antlawyers.vn/library/dispute-settlement-in-international-trade.html

The Changing Face of Cross-Border Disputes

In today’s borderless economy, trade and investment move faster than regulation. Contracts stretch across Asia. When conflicts arise, national courts often struggle to keep pace and traditional litigation would take long. The question of how to maintain fairness, enforceability, and efficiency across different jurisdictions leads naturally to one solution: dispute resolution through arbitration.

For decades, arbitration was seen as the tool of large multinationals. Now it has become the language of trust in Asia. Whether a manufacturing agreement, a trading contract, or a technology transfer, parties increasingly rely on arbitration to settle disputes privately, neutrally, and predictably.

For Vietnam, this transformation matters deeply. The country’s rising participation in regional trade under local and international frameworks means cross-border disputes are inevitable. Dispute resolution through arbitration offers a mechanism that fits both its reform trajectory and the region’s business expectations.

Why Arbitration Has Become the Standard

The attraction of dispute resolution through arbitration lies in three simple promises: neutrality, enforceability, and flexibility.

Neutrality: Arbitration allows parties from different countries to avoid the perception of home court bias. This neutrality is essential when investors from foreign countries partner with firms in Vietnam or other ASEAN countries.

Enforceability: The New York Convention ensures that arbitral awards are recognized in more than 160 countries. Across Asia, governments including Vietnam’s have embraced this framework, making enforcement of arbitral decisions more predictable than court judgments.

Flexibility: Arbitration allows parties to choose seat of arbitration, governing law of contract, governing law of the arbitration agreement, language, and procedures. In a region where legal traditions differ, this flexibility enables commerce to continue without friction.

In short, dispute resolution through arbitration is not simply a legal mechanism; it is the glue holding together Asia’s increasingly complex commercial web.

How Vietnam Aligns Within Asia’s Arbitration Landscape

Imagine Asia as a network of interconnected dispute resolution corridors which developed countries offer procedural efficiency or invest in modern arbitration frameworks or expands its cross-border cooperation; and Southeast Asian nations, including Vietnam, align their laws to international standards.

Vietnam is discussing on revising its Law on Commercial Arbitration to catch up international arbitration standard i.e., UNCITRAL Model Law to certain level depending on its specific unique situation.

Vietnam’s role is gathering momentum to harmonize with international standards and move toward direction to ensure its legal system supports dispute resolution through arbitration with predictability and fairness.

This alignment reflects Vietnam’s commitment to integration, transparency, and investor confidence.

Across Asia, a convergence is taking shape:

• Governments are updating arbitration laws to mirror UNCITRAL principles.
• Courts are increasingly supportive of arbitration agreements and enforcement.
• Regional businesses now insert dispute resolution through arbitration clauses in contracts as a matter of standard risk management.

This ecosystem of mutual recognition is to makes Asia a dynamic arbitration region and Vietnam an essential participant in its evolution.

Legal and Practical Realities of Cross-Border Arbitration

While the concept is elegant, the practice of dispute resolution through arbitration still faces challenges. Understanding these helps businesses prepare smarter contracts and avoid procedural pitfalls.

Choice of Seat and Governing Law

Selecting a neutral seat of arbitration is critical. The seat determines which national law governs procedural issues and how courts may intervene. For Vietnam related contracts, businesses often look to nearby Asian jurisdictions whose arbitration laws are internationally recognized. The goal is not avoidance, but complementarity ensuring enforceability both in Vietnam and abroad.

Recognition of Foreign Arbitral Awards

Even with the New York Convention, enforcement standards vary. Courts may review awards for public policy violations or procedural defects. Vietnam’s courts increasingly demonstrate restraint and consistency, signaling alignment with regional practices.

Cultural and Linguistic Gaps

In dispute resolution through arbitration, communication matters. Misunderstandings about language, document production, or witness examination can affect fairness. Parties should specify language, translation procedures, and evidence standards clearly in their arbitration clauses.

Public Policy and Arbitrability

Certain matters such as land, employment, consumer rights may be non-arbitrable in some Asian jurisdictions including Vietnam. Understanding these boundaries before drafting arbitration clauses prevents later surprises.

Technology and Virtual Hearings

The pandemic accelerated digital transformation. Many Asian arbitrations now take place entirely online. Vietnam and its neighbors are adapting to electronic submissions, e-signatures, and virtual hearings, trends that make dispute resolution through arbitration faster and more cost-effective.

Step-by-Step Guide to Using Arbitration in Cross-Border Transactions

Businesses and investors across Asia can follow these practical steps to incorporate dispute resolution through arbitration effectively:

Step 1: Map Your Contractual Relationships

Identify which agreements involve foreign parties or multi-jurisdictional obligations. Any cross-border contract is a candidate for arbitration because litigation may be slow or unenforceable abroad.

Step 2: Draft a Clear Arbitration Clause

Arbitration clause should include details on:

• The agreement to arbitrate
• The seat and governing law
• The language
• Number of arbitrators and method of appointment
• Scope i.e. all disputes arising out of or relating to the contract

Step 3: Choose a Neutral Seat

Selecting a neutral Asian seat encourages mutual trust. The seat determines the level of court support and procedural rules. Neutrality ensures no party feels disadvantaged.

Step 4: Decide on Governing Law

Governing law affects interpretation of rights and obligations. Choose one consistent with commercial expectations, not necessarily the law of either party’s home country.

Step 5: Anticipate Enforcement

Ensure that the jurisdictions of both parties are signatories to the New York Convention so arbitral awards can be recognized and enforced.

Step 6: Prepare for Procedure and Evidence

Decide early on rules for discovery, witness statements, and electronic submissions. Agree on digital confidentiality standards when sharing data across borders.

Step 7: Engage Arbitration Counsel

Counsels with training in cross-border dispute resolution through arbitration can bridge cultural and procedural gaps, ensuring the process runs smoothly.

Step 8: Use Mediation as a Pre-Arbitration Step

Many Asian contracts now include a tiered clause: negotiation, mediation, arbitration. This approach preserves relationships and can reduce cost.

Step 9: Manage Costs and Timelines

Arbitration can be more efficient than court litigation, but it requires careful management. Set realistic timeframes and budgeting expectations from the start.

Step 10: Enforce and Comply

Once an award is rendered, prompt compliance protects reputation and future business opportunities.

By following these steps, companies operating between Vietnam and other Asian economies can navigate dispute resolution through arbitration confidently and efficiently.

The Future of Arbitration in a Connected Asia

The future of dispute resolution through arbitration in Asia is defined not by rivalry but by interconnection. The region’s legal systems are learning from one another, blending civil and common law traditions, and adopting international best practices.

For Vietnam, integration means harmonizing procedures, recognizing regional awards, and nurturing professionals skilled in transnational law. The goal is to make arbitration not an exception, but a standard part of doing business in Asia.

Looking ahead:

• Digitalization will reduce the cost and time of arbitral proceedings.
• Cross-border cooperation among Asian courts will enhance enforcement reliability.
• Cultural diversity will enrich, not complicate, arbitral practice as Asian lawyers and arbitrators gain global prominence.

In this ecosystem, Vietnam stands as a practical bridge, connecting Southeast Asian dynamism with East Asian maturity, grounded in a shared commitment to fair and effective dispute resolution through arbitration.

Frequently Asked Questions (FAQ)

Why is arbitration preferred for cross-border disputes in Asia?

Because it provides neutrality, confidentiality, and enforceability across national borders. With diverse legal systems in Asia, dispute resolution through arbitration ensures parties can rely on a predictable process and outcome.

Can arbitration awards be enforced in Vietnam and other Asian countries?

Yes. Most Asian jurisdictions, including Vietnam, are parties to the New York Convention, which facilitates recognition and enforcement of foreign arbitral awards.

Is arbitration more expensive than litigation?

It depends on case complexity and counsel fees. While arbitration may seem costly initially, it often saves time and reduces long-term uncertainty, key in cross-border dispute resolution through arbitration.

What types of disputes are suitable for arbitration?

Commercial, technology, shipping, and investment disputes are typical.

How can Vietnamese companies prepare for arbitration?

By drafting precise arbitration clauses, training in procedural awareness, and engaging professionals experienced in dispute resolution through arbitration across Asia.

Are virtual hearings accepted in Asia?

Yes. Post-pandemic, most jurisdictions now recognize virtual hearings and electronic filings as valid, further improving access to dispute resolution through arbitration.

How does arbitration benefit foreign investors in Vietnam?

It assures that disputes can be settled impartially and enforced internationally, making dispute resolution through arbitration a key factor in investor confidence.

Trust Beyond Borders

Asia’s rise is not only about trade volume but about legal maturity. As cross-border commerce expands, dispute resolution through arbitration has become the region’s unifying language of trust.

Vietnam, positioned at the heart of ASEAN and engaged with all major Asian economies, represents this quiet transformation. It neither competes for dominance nor isolates itself, it aligns, harmonizes, and participates.

Through consistent reform, openness to global practices, and recognition of arbitral awards, Vietnam contributes to a shared regional goal, which is a future where disputes are resolved with fairness, efficiency, and mutual respect.

In that future, dispute resolution through arbitration will remain not just a mechanism of law, but a symbol of Asia’s collective commercial confidence.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

Source: https://antlawyers.vn/library/dispute-resolution-through-arbitration.html

  Cross border data flow is the fuel of Asia’s digital economy and the foundation for Vietnam’s long term digital success.

Data has become Asia’s most valuable infrastructure. Every algorithm, transaction, and online service depends on it. As information moves across borders, laws collide. Different rules on privacy, cybersecurity, and artificial intelligence (AI) are creating a new generation of technology disputes in Asia.

For Vietnam one of the region’s fastest-growing digital markets, these disputes are not distant issues. They directly influence how the Vietnam digital economy develops, attracts investors, and builds public trust. The future of growth lies not only in connectivity, but in how well countries manage the legal flow of data.

The Regional Movements

Across Asia, governments are racing to regulate the digital world.

Some countries enforce strict data export controls and national security reviews. Others promote innovation under accountable, flexible privacy rules. While some are rewriting its data protection framework to more localization.

These differences create overlapping obligations that often lead to technology disputes in Asia from access to cloud stored data to disagreements over algorithmic bias or cyber breach liability.

For foreign companies operating regionally including Vietnam, the challenge is how to maintain data protection in Vietnam while exchanging data lawfully with partners abroad.

Vietnam’s Legal Readiness

Digital Ambition

Vietnam’s National Digital Transformation Program and AI Strategy to 2030 target a digital-economy contribution of 30 percent of GDP. Achieving that goal requires seamless, trusted cross-border data flow the backbone of fintech, logistics, and online services.

Fragmentation Leads to Disputes

When laws differ, conflict follows. A Vietnamese company storing data on a regional cloud may face privacy obligations from two or three countries at once. If an AI partner misuses customer data, both firms may face enforcement from different regulators. Such scenarios drive the rise of technology disputes in Asia, increasing legal uncertainty and cost.

Vietnam’s Direction of Reform

Vietnam’s Law on Data 2024 establishes the national framework for managing, sharing, and exploiting all forms of data, while the upcoming Personal Data Protection Law will focus on individual privacy and cross-border data transfers. Together with the Science, Technology and Innovation Law, which introduces sandboxes for emerging technologies, and the Cybersecurity Law, which protects national networks, these statutes form the backbone of Vietnam’s trusted data governance, balancing control with openness.

Why This Acceleration Matters for Vietnam

Vietnam’s rush to enact data, AI, cybersecurity, and virtual-asset laws is deliberate. Several forces are driving it:

Economic Transformation: The country is moving from manufacturing to a Vietnam digital economy centered on data and services. Growth now depends on legal clarity for data and AI.

Regional Obligations: Under ASEAN, RCEP, and CPTPP agreements, Vietnam must align its digital trade standards with regional partners to stay competitive.

Investor Confidence: Foreign investors demand clear compliance frameworks before transferring or processing data in Vietnam.

Dispute Prevention: Early regulation helps avoid the costly wave of technology disputes in Asia seen elsewhere.

Global Positioning: Amid geopolitical tech tensions, Vietnam can present itself as a neutral, trusted data hub bridging East and West.

Timing: Most new laws will take effect around 2025 and 2026, aligning with global shifts in digital supply chain investment.

Vietnam is not just reacting to technology, it is building legal trust as an economic asset.

International Arbitration As A Practical Solution

Because data and AI transactions span multiple countries, court litigation can be slow, public, and uncertain. Businesses increasingly prefer arbitration in a neutral seat renowned for efficiency, confidentiality, and enforceability under the New York Convention.

There is a need to use an arbitration seat country which promote arbitration to ensure:

• Expert panels familiar with digital technology evidence,
• Procedures that protect sensitive data, and
• Awards enforceable across most Asian jurisdictions.

For enterprises trading or partnering regionally including Vietnam, such clauses are a proven safeguard against jurisdictional conflict and rising technology disputes in Asia.

Step-by-Step Guide on How To Reduce Technology Dispute Risks

Reducing exposure to technology disputes in Asia requires more than just good intentions. It calls for disciplined preparation and proactive compliance. Vietnamese companies expanding their digital activities can follow these seven practical steps to stay ahead of legal and regulatory risks.

Step 1: Map your data flow.
Begin by identifying where customer, employee, and operational data is stored, processed, and transferred. Many Vietnamese firms use regional or global cloud services without realizing that each data location may trigger a different national law. Mapping your data flow helps clarify which jurisdictions, and therefore which obligations apply to your business.

Step 2: Review all technology and cloud contracts.
Every agreement that involves technology, AI, or data sharing should clearly specify the governing law and a neutral arbitration seat. Doing so prevents confusion about which court has authority and ensures that disputes are resolved efficiently.

Step 3: Adopt internal data policies.
Internal rules should align with Vietnam’s emerging Personal Data Protection Law and the broader Law on Data. These policies demonstrate to regulators and partners that your organization values compliance, transparency, and trust, critical ingredients for long-term growth in the Vietnam digital economy.

Step 4: Audit your third-party vendors.
Digital supply chains are only as strong as their weakest link. Verify that external partners, especially those handling data or AI functions, follow equivalent privacy and cybersecurity standards. Auditing vendors reduces shared liability and strengthens your overall data governance framework.

Step 5: Train employees on AI ethics and data risk.
Technology compliance is not only a legal matter, it is a people matter. Regular training enables staff to recognize privacy risks, improper data collection, or algorithmic bias before they escalate into costly disputes. Early awareness is the most effective safeguard against internal data incidents.

Step 6: Engage legal counsel early.
Consult lawyers familiar with both Vietnam’s technology regulations and regional data frameworks before launching new products or partnerships. Early advice can identify potential conflicts, prevent regulatory breaches, and save significant resources that would otherwise be spent on dispute resolution.

Step 7: Monitor regional digital policy developments.
Asia’s legal landscape is evolving rapidly. Keep an eye on ASEAN Digital Masterplan 2025, and national updates in partner markets. Staying informed allows companies in Vietnam to adapt compliance programs quickly and avoid unexpected exposure to new legal requirements.

Taken together, these steps provide a structured roadmap for Vietnamese businesses to manage technology related risk. By embedding compliance into operations, companies not only prevent technology disputes but also build the credibility and trust that underpin Vietnam’s role in the regional digital economy.

The digital economy is built on data, and data depends on trust. When information moves freely and safely, innovation accelerates. When it is blocked or mishandled, technology disputes multiply.  Vietnam’s strategy of modernizing data protection in Vietnam, aligning with ASEAN standards, and encouraging arbitration for cross-border contracts positions it for sustainable digital growth.

The lesson is that economic competitiveness now depends as much on legal readiness as on technology itself.

Frequently Asked Questions on Technology Disputes in Asia

Q1. Why are Technology Disputes in Asia rising?
Because countries regulate data and AI differently. Companies operating regionally face conflicting obligations on storage, transfer, and consent.

Q2. How do such disputes affect the Vietnam digital economy?
They slow cross border projects, raise compliance costs, and discourage foreign digital investment.

Q3. What role does the Personal Data Protection Law play?
It defines how personal data is collected, stored, and transferred abroad, improving data protection in Vietnam and aligning with regional norms.

Q4. Why is arbitration in developed and neutral country preferred?
It offers neutrality, confidentiality, expert arbitrators, and enforceable awards under the New York Convention, ideal for complex tech disputes.

Q5. Can Vietnamese companies include foreign arbitration clauses?
Yes. Parties may freely agree to arbitrate outside Vietnam, provided the contract clearly states the seat of arbitration and governing law.

Q6. How can harmonized data rules reduce disputes?
When countries share compatible standards, companies face fewer conflicting requirements, lowering risks of involving in technology disputes in Asia overall.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

Source: https://antlawyers.vn/update/technology-disputes-in-asia-and-vietnam.html

  A Global Skill Arriving in Vietnam

“Mediation briefs” may sound unfamiliar to most future legal practitioners in Vietnam, but in the United States this term has become an essential part of professional mediation practice. It refers to a structured written document that helps both the mediator and the parties understand the facts, issues, and interests in dispute before the mediation session begins.

Through the initiative supported by the Weinstein International Foundation (WIF), the concept of mediation briefs is being introduced to Vietnam as part of the international mediation writing and advocacy competition.

Now we will together explore why it matters, and how it helps mediators, advocates, and disputing parties communicate more effectively.

Where Mediation Briefs Come From

The concept of mediation briefs evolved alongside the professionalization of mediation in the United States during the late 20th century. As mediation developed into a mainstream alternative dispute resolution (ADR) method, professional mediators began requesting written summaries from parties to understand key issues in advance.

Esteemed mediators such as Judge Daniel Weinstein, a co-founder of JAMS, emphasized that effective mediation depends on discipline, preparation, and trust-building. A well prepared mediation brief embodies those principles by providing structure and clarity to the discussion.

Similarly, Bruce Edwards and Susan Edwards of Edwards Mediation Academy have explained that mediation briefs serve as a communication bridge between counsel, clients, and mediator.

Why Mediation Briefs Matter

A mediation brief is more than a summary, it is a tool for understanding. It allows the mediator to grasp the factual background, the commercial context, and the parties’ interests before they meet.

Good mediation briefs:

• save time by reducing repetition during sessions,
• help mediators focus on key issues, and
• improve mutual understanding by revealing what truly matters to each side.

In essence, mediation briefs make mediation faster, clearer, and more human.

Mediation Briefs Around the World

Although the name “mediation brief” is mainly used in the United States, similar documents exist globally:

In the United Kingdom, mediators use “mediation submissions” or “case summaries”

In Singapore, mediators receive “position statements”

In other countries, parties exchange “mediation statements”

Whatever the label, the purpose is identical, to prepare all participants for a constructive and informed conversation.

Who Writes a Mediation Brief and When

In professional practice, mediation briefs are typically drafted by the parties’ lawyers or mediation advocates.

The mediation brief should primarily address the mediator, not the opponent. It is not a legal argument, but an informative narrative.

Usually, mediation briefs are sent several days before the session, allowing mediators to study them carefully. Some mediators encourage exchange of briefs between parties, while others request a confidential version.

There are a shared brief, presenting key facts and desired outcomes; and a confidential brief, sharing candid thoughts or negotiation ranges only with the mediator.

What a Mediation Brief Should Cover

A professional mediation brief is concise, of length normally between 5 to 10 pages, and includes:

Case overview: what the dispute is about.

Background facts: key events, agreements, or obligations.

Issues in dispute: what remains unresolved.

Interests and priorities: what each party values most.

Previous negotiations: what has been offered or discussed.

Desired outcomes: possible settlement ideas.

Attachments: relevant documents or data.

As one said, a mediation brief should enlighten, not argue. It should show how the party’s position aligns with fairness and practicality, not just with law.

Mistakes to Avoid

There are times people misunderstand the purpose of mediation briefs. The errors include:

• Treating the brief like a court pleading or memorandum.
• Writing too long, too legalistic, or too emotional.
• Ignoring the mediator’s need for neutrality and balance.
• Failing to highlight underlying interests and human factors.

Remember that, a good mediation brief uses the tone of cooperative and credible, not combative nature.

AI and Mediation Briefs: The Intersection

In recent years, artificial intelligence (AI) have started to influence how legal professionals draft documents.

According to JAMS’ 2024 article “Revolutionizing Resolution: The Transformative Impact of AI on ADR” AI tools are beginning to support mediators and lawyers in tasks such as summarization, preparation, and procedural coordination, but it cannot replace the human capacity for empathy and judgement.

The Benefits of Using AI in Mediation Briefs

AI can serve as a useful assistant when preparing mediation briefs for the purpose to:

• structure sections logically,
• improve clarity and tone, and
• summarize lengthy documents or correspondence.

When used responsibly, AI allows writers to focus more on the human and strategic aspects of the dispute.

What Are The Drawbacks of Using AI?

There are, however, important cautions:

Loss of critical thinking: Over reliance on AI may weaken a writer’s ability to analyze facts, prioritize arguments, and exercise professional judgment.

Perception and credibility risks: Mediators or judges may view AI generated documents as impersonal, overly generic, or lacking sincerity, especially in a field like mediation where tone and empathy matter most.

Best Practices in Using AI Wisely

Writers of mediation briefs should view AI as a supporting assistant, not a substitute for their own insight.

• Keep the strategic, emotional, and interest framing parts fully human.
• Rely on local knowledge, cultural nuance, and empathy, things AI cannot replicate.
• Always verify and correct any AI generated content for potential errors or bias.
• Ultimately, every writer must make their own choice whether to use AI, but if they do, it should remain an assistant, not an author.

Overall, mediation advocacy lawyers are encouraged to treat the mediation brief as an opportunity to demonstrate:

• clarity in explaining complex facts,
• balance in tone, and
• creativity in proposing settlement options.

Whether written entirely by hand or supported by AI tools, what matters is thoughtfulness, how the brief reflects understanding, empathy, and professionalism.

About VEMC, a Mediation Center in Vietnam

Vietnam Effective Commercial Mediation Center (VEMC) is a a Non-Profit Organization that Promote Mediation as Alternative Dispute Resolution in Vietnam, Provide Training and Mediate Disputes. The idea of mediation is to offer a different way of handling disagreements as compared to litigation proceedings. At VEMC, we pride ourselves on having a team of highly qualified and experienced professionals dedicated to the vision and mission of the center. Contact us to exchange ideas for cooperation in dispute resolution, work with us, or request services.

Source: https://vietnamadr.com/mediation-briefs-their-role-how-to-write/