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Global Currents: Trends in Complex Cross-Border Disputes

In February 2014, the Litigation and Arbitration Practice of international law firm Hogan Lovells announced the findings of a survey they conducted among 146 senior lawyers and executives from among the world’s largest companies in 18 industries to assess how cross border disputes have affected the legal landscape. The survey’s findings reveal some interesting perspectives, and hint at the scale of opportunity for mediation.

Respondents to the survey indicated that 73% of international corporate contracts included a provision selecting arbitration as the dispute resolution mechanism – though only 29% said their cross-border disputes involved arbitration. This dichotomy is left unexplained in [...]

What Movie Do You Want To Make?

The arc of a litigated case has many narratives, particularly when it comes to settlement opportunities. While some cases fall into standard, often repeated formulas, others cannot be scripted. Yet, there are moments in the cycle of a case where some litigators simply react to events as they unfold rather than actively creating the settlement drama. The drama of a case is like storytelling in a trial, where events unfold in front of an audience of people who are in a position to evaluate and put a price on the story. Knowing what scripts are available in advance will assist in being less reactive and more resilient in achieving a better process and successful resolution.

To learn about creat [...]

A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy

The recent publication of a study conducted for the European Parliament on Mediation, “Rebooting the Mediation Directive,” has contributed to the ongoing debate about effective mediation policy. I am the coordinator of that Study, whose results were based on 816 questionnaires completed by respondents from the 28 member states of the EU.

The Study determined that mediation in the EU is still the “Sleeping Beauty” I first heard about when I decided to enter this field 20 years ago. Despite many decades of stagnation, renewed enthusiasm and repeated efforts to revive her, the consensus seems to be that our princess is more than just asleep. The Study concluded that unless “elements o [...]

Nudging cross-border mediation forward

How do you get people to eat more fruit and less junk food?

How do you get more people to agree to donate their organs?

How do you get more people to engage in cross-border mediation?

I’ll come back to food and organs shortly. Let’s stay with mediation for a minute.

Within Asia, Hong Kong, Singapore and other centres are positioning themselves as regional leaders in cross-border mediation. Statistically though, there is not an enormous amount of cross-border mediation going on. International arbitration remains the process of choice.

At mediation conferences and other get-togethers, mediators and other ADR advocates ask themselves, why?

Some say it’s the lack of an international lega [...]

The Launch of 谈判 (Tan2 Pan4)

Author’s Note: For those readers who do not speak or read Chinese, the words and numbers in brackets indicate how to pronounce and intonate the Chinese characters indicated

I was recently given the honour of launching 谈判 (Tan2 Pan4): The Chinese-English Journal on Negotiation at the 3rd Asian Mediation Association Conference held in Hong Kong on 3-4 April 2014. This journal was a themed edition titled “Who says you’re a mediator?”

Not having launched anything (apart from paper aeroplanes) in my life, I was initially at a loss for what to say. As I thought about this journal and what it hoped to achieve, I realized that there was quite a fair bit to say. I would like to introduce this j [...]

‘Is that, like, a mediation fight?’ Catch 22 for Mediators

Chicago March 2014

Lots of talk about ADR competitions on this blog, so I’ll throw my hat in the ring. Last month I took a team of students to the INADR International Law Student Mediation Tournament in Chicago (http://www.inadr.org/tournaments/law-school-tournament). This was the 13th competition and it was truly international, with 52 teams representing 17 US institutions and 22 from the rest of the world: India, Sri Lanka, Russia, Ukraine, Lithuania, Germany, Australia, England, Ireland, Scotland, Northern Ireland and Canada. This competition’s distinctive feature is that students act as mediators as well as clients and advocates.

I need to be clear about one thing – Chicago is a gas. It’s a c [...]

In Youth We Trust

On the day when the finals of the world’s largest ADR student competition starts, I could not think of any better topic for my blog posting. I have been teaching and coaching students for the last eleven years, and it has become an important part of my life and a highly rewarding experience. Consequently, I have no doubt that there is no better way of promoting ADR than bringing it closer to people in the form of reality-based simulations, exercises and role-plays. Students enjoy learning by doing, and welcome their “moot” experience enthusiastically. The competition teaches them to how to think out of the box and work together as a team.

The Willem C Vis International Commercial Arb [...]

Sorry is the hardest word…

The last few weeks have seen a failure to apologise result in a political crisis, a senior police official being forced to resign, and our Minister for Justice’s already wobbly pedestal threaten to give way entirely beneath him. The coming weeks and months will tell whether the “Minister for Borrowed Time” as he has become known, will survive this latest scandal, but the damage that, among other issues, the failure to issue an apology to two Whistleblowers, who have been vindicated and lauded as heroes by other members of Government, has done the reputation of the Minister enormous damage.

Why, then, do people find it so difficult to apologise? As mediators, we all know the power of an [...]

Reflections On Neutrality

Recently my good friend Canon Andrew White (aka “the Vicar of Baghdad”, as he is the Anglican priest at St George’s Church, Baghdad) convened a meeting of religious certain leaders from Iraq and Israel, bringing together senior Iraqi Muslim and Israeli Jewish figures in Cyprus for several days of talks about peace. It was by all accounts a great success. Aside from the content (and the concluding announcement of the meeting that “Fear is cancelled”!) it set me thinking about mediators and neutrality.

In all sorts of ways, you could say that Andrew is not “neutral” – at least, not in the way that mediators often think of neutrality. In the field of Middle East religion [...]

An Asian Switzerland, Expectation and Regret

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Having last week returned to New Zealand from Singapore where I was honoured take part in the launch of the ICC Mediation Rules, I saw first hand the support for mediation in Singapore from powerful institutions like the Singapore Judiciary and the Ministry of Law.

Singapore, and my guess is Asia in general, is in the grip of a trade boom – from my hotel window it showed. I counted well over 100 large ships at anchor in the bay awaiting their turn to come along side the container  port.  This amazing country, lacking in land and natural resources of its own, unloads raw materials and later exports them after refining, value adding and reshaping them. In this way, Singapore has become th [...]