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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 [...]

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 [...]

Ontario Decision Highlights Settlement Related Issues in Mediation

The recent Ontario Superior Court decision of Healy J. in Southlake Regional Health Centre v. Beswick Group Properties touches on a number of issues arising from settlement at mediation.

Briefly, this was a landlord and tenant dispute relating to a Medical Arts Building and other development lands. The full factual background can be read by linking to the decision above. Basically the landlord and tenant sued each other in 2011 alleging various breaches of a development agreement and lease. Those disputes went to mediation with Larry Banack, a well known and highly respected Ontario mediator, in September 2013 and a settlement was reached. The mediator drafted the Settlement Agreement which [...]

Reflections on Cologne University’s Summer Academy in Mediation

Each September for the past 11 years, Cologne University, under the auspices of CENTRAL (the Center for Transnational Law: http://www.central.uni-koeln.de), and in Association with the German Institution of Arbitration (DIS: www.dis-arb.de) has hosted a Summer Academy in International Commercial Arbitration. More recently – 8 years ago – an academy on mediation was added, to run alongside that arbitration programme. I’ve been fortunate enough to be involved with the mediation programme for the past four years, facilitating the first two days of the four-day programme.

Each academy attracts a range of young participants – it is aimed at “emerging” professionals hoping to kickstart their dispu [...]

Part 3 – Empowering the Growth of International ADR

This is the final posting of a 3-part series. Previous posts in the series noted the gathering tempest being whipped up by opacity in ADR practice. How can structural change help the ship steer towards modernity?

User demand for more information and higher professional standards in ADR is unequivocal.

An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes. That institution should preferably not be a service provider.

Ideally it should be a new entity, without an historical footprint, established as a collaboration of the demand and supply sides of the arbitra [...]

Part 2 – Empowering the Growth of International ADR: Cries for change

Part 1 of this post touched on rumblings for more transparency in arbitration. But there is more than the distant sound of thunder, and it’s coming closer.

As arbitration and mediation are both highly competitive and fragmented fields, it is hard for providers to act collectively. Yet they must. The only forums where arbitration organizations come together at an international level conferences of the ABA Section of Dispute Resolution, the Institute for Transnational Arbitration (ITA) and the International Council for Commercial Arbitration (ICCA). Mediation providers have the annual UIA World Forum of Mediation Centers. Industry change to address user demand rarely gets discussed at [...]

Resolving – and avoiding – construction disputes: notes from the ICC-FIDIC conference

On 25th and 26th June, the ICC and FIDIC (International Federation of Consulting Engineers: http://fidic.org/) hosted their annual conference in Paris. While most of the discussion was, understandably, concerned with either arbitration or adjudication – the latter involving primarily Disputes Boards (http://www.dbfederation.org/) acting under FIDIC contracts – mediation made an appearance at a number of points. The principal issues concerning arbitrators, contractors, and lawyers include, at least: the international and cross-border relevance of contractual forms that are primarily “Anglo Saxon”, the assurance of due process or procedural fairness standards, the recognition and enforcement o [...]

India International ADR Association off to an Exciting Start

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 [...]

How is med-arb regulated in Hong Kong?

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 [...]

Mediation confidentiality: limitations and a proposal

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 [...]