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The Race towards a New York Convention for Cross-border Mediated Settlement Agreements: the Fable of the Tortoise and the Hare Revisited?

Tortoise-Hare-new-version

In his recent posting for the Kluwer Arbitration Blog, Michael McIlwrath picks up on what I affectionately refer to as the NYC4M (New York Convention for Mediation) theme, that is the debate about whether an international convention for the enforcement and recognition of cross-border mediated settlement agreements would assist the development of, and promote the use of, cross-border mediation. It’s a theme that Geoff Sharp of this Blog has also pursued. Moreover, the International Mediation Institute and the International Bar Association have recently announced a joint Taskforce to pursue an NYC4M.

While the idea seems at first glance like a no-brainer, an obviously attractive proposal t [...]

When mediation isn’t mediation at all…

At the risk of being accused of being too much of a purist, I just have to have a little grumble about the latest misappropriation of the term mediation. All involved in promoting and encouraging the use of mediation know how one of the largest barriers to people availing of this process is the lack of understanding of its key principles and how it really works. The fallout from Garth Brooks’ plans to rock Dublin over five consecutive nights this month has, very publicly, confused the issue once again.
Mr. Brooks, in fairness, was not at fault here, merely deciding to bow to the begging of his fans and put on five shows in a row. These shows are (were) to be held in Dublin’s largest stad [...]

Lessons in Life for Mediators?

I am interested in convergence – of ideas, of behaviour, of trends, of different disciplines. The more I read, the more common themes I discern in the arts, science, spirituality, leadership and in what we do as mediators. A reflection of this is found in the African concept of ubuntu, “the profound sense that we are human only through the humanity of others.” These are the words of Nelson Mandela. Ironically, one of the finest books I have come across recently which encourages this idea of convergence is Mandela’s Way: Lessons in Life, by Mandela’s biographer, Richard Stengel.

In fifteen short chapters, Stengel captures the essence of what made Mandela special – and each one of [...]

Contrasting mediations….richness awaits…..

I write here about two contrasting experiences which have, for me, underscored the richness of the mediation process.

In one mediation, involving business partners with an ongoing management issue, one of the protagonists (A) suggested bringing in another partner (D) who was not perceived to be a part of the present problem, simply to observe, be a resource to the participants and help balance numbers as A, a more junior partner, felt outnumbered by B and C who held senior positions.

D made clear at the outset that he did not wish to say much and that he did not wish to become embroiled. However, a private meeting with him elicited much information that seemed helpful going forward. Rather [...]

Unsettlement

“Have patience with everything that remains unsolved in your heart. Try to love the questions themselves. . . Do not now look for the answers. . . At present you need to live the question.” Rainer Maria Rilke, Letters to a Young Poet

At the heart of the idea of mediation is the aim of settlement – the amicable resolution of the issues in contention between parties. As some of the previous entries in this blog series have also indicated, the idea of settlement itself can be contentious: “settlement” assumes the primacy of party autonomy and choice, which can be set against the expectations of public norms and the consistency of principles. Part of the early (left wing) critique of med [...]

Singapore Development – The Primary Justice Project

This post seeks to provide readers an update of a recent development in Singapore – the launch of the Primary Justice Project. While the Primary Justice Project does not relate specifically or solely to mediation, its goals are the same: the amicable resolution of disputes.

During the State Courts Workplan 2013 (1 March 2013), the Chief Justice of Singapore Sundaresh Menon announced the introduction of the Primary Justice Project.

The idea was to provide parties to a dispute an intermediate step between self-help and the commencement of legal proceedings in Court so that they would have the opportunity to resolve their disputes expediently, cheaply and amicably.

In the words of the Chief [...]

Mind the Gap: Mediation and Justice

Justice Scales

Intellectual life is beset by ‘gap’ problems. Philosophers wrestle with the ‘mind-body problem’: the gap between material and non-material aspects of human existence. All science can be construed as an attempt to bridge the gap between what is and what we can imagine: an inductive corrective to deductive supposition. Roger Cotterrell describes law’s gap problem in these terms: “What is the relationship between law and social reality?” (Roger Cotterrell, Living Law: Studies in Legal and Social Theory. Farnham: Ashgate, 2008, p.21)

The field of conflict resolution has its own gap problem: the alleged gap between mediation and justice.
“[Mediation] does not contribute to su [...]

What can mediators learn from crisis negotiators?

Next week I am going to interview one of Hong Kong’s leading police negotiators, Dr Gilbert Wong, Commanding Officer of the Police Negotiation Cadre (PNC). When I first emailed with Gilbert, I was struck by the signature line of his email: “Who Cares Wins”. While it could be a mediator’s tagline, it is in fact, the motto of the PNC.

As the South China Morning Post reported this month, most of Gilbert’s negotiations are with people who are so emotionally distraught and without hope that they are threatening to commit suicide. Now, in anyone’s book, that’s a tough negotiation.

So what is the key to crisis negotiating? According to the SCMP, it’s first about identifying what’s important for [...]

Falling Upward?

I have been reflecting recently on the individual and collective professional journeys we all undertake – and on the different stages we reach. My reading has taken me to a thought-provoking book by theologian Richard Rohr, entitled Falling Upward.

Rohr’s thesis, put very simply, is that there are two stages to life. The first, necessary, stage involves building up a career with an identity, fulfilling ambition, acquiring material things, seeking security and achieving status. The second stage, which not everyone reaches, incorporates and transcends the first as we achieve a certain peace, appreciate the important things, accept things as they are and subordinate the ego. It involves unlea [...]

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 [...]