As mediation seeks to claim a larger slice of the international dispute resolution pie, an increasingly important question for lawyers is: where and according to which law would I choose to have the mediation of my clients matter conducted?
Say your client is a multinational corporation doing business with numerous organizations around the globe. Your advice is to insert a dispute resolution clause with mediation as a central component. Typically we select jurisdictions with which we are familiar to do business with. Smits explains the research that backs this up. This is sometimes referred to as the status quo bias. It might be our own jurisdiction or it might be another internationally we [...]
As the world of business develops at an unprecedented pace, we all are constantly facing new challenging situations which we must rapidly understand, find new solutions to and, in some cases, adapt ourselves to. A global net of co-operations, business opportunities, market resources and novel technologies has inevitable spanned across our world of business.
Along with any innovation and development comes a new challenge and with that a new method to deal with it. Unsurprisingly, the segment of dispute resolution is no different from the others and also needs to rapidly adapt to the fast paced developments in the world of international commerce. Globalized, multicultural and highly complex t [...]
Last year I posted 10 tips for participants, one of the most important being that mediation remains an oral sport, and the most effective counsel and parties in real life are those who have the confidence to come to mediation with little documentation but with a deep knowledge of both the dispute and their preferred pathway to resolution – so, not only have they prepped the legal case, they have also (and primarily) prepared for settlement.
This year, I would like to add just a couple more, but perhaps go into a little greater detail this time;
In a previous post, I shared Professor Stacie Strong’s call for blog readers to respond to her survey on international commercial mediation practice. Thank you to everyone you did.
While the final results are still pending, Prof Strong has released some preliminary results from the study.
The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” was written by Professor S.I. Strong of the University of Missouri and collected detailed data on 34 different questions from 221 respondents from all over the world. Surv [...]
For one more week only you have the chance to have your say on the enforcement of cross-border mediated settlement agreements. I encourage each and every one of you to offer your input.
Two surveys will be gathering input from dispute resolution professionals and others on the challenge of enforcing settlement agreements across borders.
The surveys are intended to provide empirical data to aid the decision making process for the proposed UNCITRAL settlement convention on the international enforcement of settlements reached in mediation.
Of course, parties who choose to resolve cross-border disputes by way of mediation are free to develop their own bespoke rules of engagement as they might in their domestic mediations via a comprehensive mediation agreement (ad hoc mediation) – however, and although there are cost implications, parties to international mediations usually perceive real benefits in adopting a tried and true process administered by a respected and often global ADR provider (administered mediation).
Many parti [...]
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 [...]
Last month, Al Jazeera carried a piece called “‘Mama Boko Haram’ grasps for peace in Nigeria”. It detailed the activities of Aisha Wakil (pictured above), a Nigerian lawyer who has become a de facto mediator between Boco Haram and the Nigerian government – often at considerable risk to herself.
“Mama Boko Haram”, as she has been dubbed, is now on the government-initiated Committee on Dialogue and Peaceful Resolution of Security Challenges in the North. She represents a powerful model of mediators who emerge from the community in which the conflict is located, rather than “outsiders”. For example, this is how she first developed her relationship with the then leader [...]
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 [...]
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 [...]