This month of May witnessed the launch of the India International ADR Association (IIADRA). And what a blast it was! Judicial luminaries, leading lights of the legal profession, business leaders and politicians all descending upon the gorgeous port city of Kochi on the southwestern Indian coast in the state of Kerala.
At first glance Kochi might be the first place you would think of to be the home of the India International ADR Association. I mean, why not the major international Indian centres of Mumbai or Delhi? Interestingly, Kochi although better known today as a tourist destination, has a rich and colourful history with periods of Portuguese, Dutch and of course British occupation. Koch [...]
In a previous posting I looked at Hong Kong’s new Mediation Ordinance, which came into force on 1 January 2013. This legislative activity comes hot on the heels of a major revision of the Hong Kong Arbitration Ordinance which came into effect in 2011.
Given the increasing interest in multi-tiered dispute resolution (MDR) processes such as med-arb and arb-med-arb, I thought it would be useful to consider the application of these two ordinances to MDR practice in Hong Kong.
The Arbitration Ordinance (AO)
One of the underlying intentions of the revised AO was to encourage the use of:
• med-arb where a mediator is appointed to try to resolve the dispute before arbitral proceedings are comme [...]
To paraphrase Jane Austen, it is a truth universally acknowledged that mediation is confidential. Go on any training course, listen to any mediator’s opening speech, and the secrecy/privacy of the process will be affirmed and reaffirmed. In the commercial mediation arena, and these days most other practice areas, you will also sign a contractual undertaking about confidentiality. Article 7 of the 2008 EU Directive on Cross Border Mediation states that “mediation is intended to take place in a manner which respects confidentiality”. It is simply assumed that this is desirable, even essential, for mediation to take place. When mediation confidentiality is challenged, as it has been recentl [...]
On June 1, 2012, the revised version of the Swiss Rules on International Arbitration entered into force (see the recent following posts on the Kluwer Arbitration Blog: http://wolterskluwerblogs.com/blog/2012/05/31/revised-swiss-rules-of-international-arbitration-enter-into-force/ and http://wolterskluwerblogs.com/blog/2012/06/01/entry-into-force-of-the-revised-swiss-rules-of-international-arbitration-%E2%80%93-1-june-2012/).
These new Rules (see text of the Swiss Rules at https://www.swissarbitration.org/sa/en/rules.php), based on the UNCITRAL Arbitration Rules, were initially enacted in 2004 in order to harmonize the arbitration rules of six of Swiss Chambers of Commerce (Basel, Bern, Gene [...]
The quiet child of the legal brood is the transactional lawyer. They are a group that offer hidden wells of future development for mediation. This group of lawyers has extensive and close ongoing relationships with the individuals clients–the people who work in corporate, government and commercial clients. Transactional lawyers are the ones who document their clients’ new and optimistic contracts, leases purchases or other agreements. They design agreements and arrangements to keep their clients out of trouble, keep the agreement on the rails, and productive to the parties throughout the life of the agreement. It is the transactional lawyer who inserts dispute resolution clauses in the agr [...]
In a previous post I had noted the absence of better inter-connection between the ICC ADR Rules (available at http://www.iccwbo.org/court/adr/id4452/index.html) and the new ICC Arbitration Rules (available at http://www.iccwbo.org/court/arbitration/id4424/index.html) although the latter now open the door, at an early stage of the arbitration proceedings (i.e. the Case Management Conference: Art. 24 para. 1 of the ICC Arbitration Rules), for considering the possibility to settle the dispute other than by a decision of a judicial nature.
It is worth pointing out here again that ICC arbitration is generally considered as independent and distinct from mediation. In its Foreword, the ICC ADR Rule [...]
Promotion and legislation on mediation in The Netherlands
Machteld Pel, Pelmediation
I would like to present an update about the promotion and legislation on mediation in the Netherlands and the possible influence of promotion and regulation on the use of mediation.
Since the end of the nineties, the promotion of ADR has been an active part of the Dutch judicial policy. The four main goals in promoting ADR were: out-of-court resolution of disputes; attaining the best quality or the most effective way of settling disputes; the realisation of various forms of access to justice that make the parties primarily responsible for dispute resolution; and, lastly, less pressure on the judicial system. [...]
Quality standards for the mediator?
What conditions are needed for the successful outcome of a mediation? Without parties’ commitment to really resolve the conflict and settle the case, no success is possible. So commitment of the parties is a sine qua non.
Still, we must also look at the mediator, who may be essential for helping the parties and their lawyers overcome roadblocks and resistance so they can resolve their conflict or dispute. So perhaps we must state that – for parties who were unable to resolve their conflicts before mediation – the quality of the mediator is crucial in getting them to talk with each other and in getting a mediated result that suits both parties as mu [...]
The recent decision in Gao Hai Yan & Anor v Keeneye Holdings Ltd & Others  HKEC 514, (the “wining and dining” mediation case) has generated a considerable amount of interest in the murky depths of the Arbitration-Mediation (“Arb-Med”) facility. Practitioners and academics are still engaged in deep discourse nearly two months after the case was concluded in the Hong Kong Court of Appeal and some are even questioning whether the Arb-Med facility should be available at all. However, the Arb-Med provision has been seldom used in Hong Kong – and on this basis some critics complain that all of the surrounding fuss really is not warranted. Is the Hong Kong Arb-Med debate much ado about [...]
Before you answer yes, consider the following questions:
1. A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? (Alternative version for those who prefer both a different sport and currency: “A cricket bat and a ball cost £1.10 in total. The cricket bat costs £1.00 more than the ball. How much does the ball cost?”)
2. If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?
3. In a lake, there is a patch of lily pads. Every day, the pat [...]