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 [...]
The “Italian mediation explosion” attracted a lot of attention from the international mediation community. The mediation explosion came to a sudden halt in December 2012, when the Italian Constitutional Court ruled that the provisions had been unconstitutional. Just recently, on September 20, 2013, a new regulation came into effect, again opting for mandatory mediation, but with several important modifications.
The history of this program dates back to 2009, when the Italian legislature implemented Law No 69/2009. The Law delegated a mandate to the Government to introduce a regulation of civil and commercial mediation. The Government fulfilled it by legislative decree 28/2010, which int [...]
From the Samoan Observer 28 August 2013
Chief Justice, His Honour Patu Tiava’asue Falefatu Sapolu yesterday launched Samoa’s Mediation Rules 2013 during a gathering at the Samoa Tourism Authority (STA) fale.
Prime Minister Tuilaepa Sa’ilele Malielegaoi was among Cabinet Ministers and senior government officials present. Also present was the Speaker of the House, La’auli Leuatea Polata’ivao as well as members of the judiciary. His Honour Patu said the launch yesterday was a significant milestone for Samoa.
“Mediation is something very new but very old in Samoa,” he said. “Mediation has many similarities with the traditional Samoan way of settling disputes through the village [...]
In June 2012 the Hong Kong Legislative Council passed the Mediation Ordinance (MO), the first piece of legislation on mediation in Hong Kong SAR. The MO was a much awaited and highly anticipated law and some mediation advocates have been disappointed in what they see as much ado about nothing. After all the MO appears as a very thin document containing only 11 provisions.
However the MO must be seen as part of Hong Kong’s broader mediation landscape. As a member of the Mediation Taskforce that was responsible for the content of the MO, I can report that the Ordinance was the subject of serious international research and deliberation. It forms the pivotal piece of a broader legal landscape [...]
The Czech Republic joined the EU Member States that have put the necessary rules in place to transpose the Directive 2008/52/EC on mediation in civil and commercial matters. The new Mediation Act (Act No. 202/2012 Coll., “the Act”) became effective on 1 September 2012. Whereas the Directive’s implementation was significantly delayed (Article 12(1) required Member States to complete it before 21 May 2011), the Act belongs to the most comprehensive and detailed mediation laws in Europe.
While mediation has been by no means unknown in the Czech Republic, the Act aims to establish a proper legal framework and thus significantly increase the amount of cases settled through mediation. Until [...]
Many have tried but all have failed to implement a definitive single enforcement mechanism for cross-border mediated settlement agreements.
This lack of any coherent method of enforcement is widely seen as a major impediment to further globalisation of mediation, the argument being how can we expect parties involved in large international commercial disputes to embrace mediation if there is a risk that any outcome might be, to all intents and purposes, unenforceable. Why would international parties not simply default to arbitration where the New York Convention of 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards with its 146 member states ensures the enf [...]
Finally, after a long parliamentary struggle, the German Mediation Act (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was signed into law by the President of the Federal Republic (Bundespräsident) on July 21, 2012. Four days later it was published in the Federal Gazette (Bundesgesetzblatt) BGBl. I, 2012, S. 1577, and came into force on July 26, 2012.
When I reported in early January that the law was passed in Bundestag, it might have appeared that just a couple of weeks are needed to finalize the legislative process. However it soon turned out that the Mediation Act required the Mediation Committee (Vermittlungsausschuss) of the upper [...]
In a previous post, I had briefly described how mediation is now embodied in the Swiss legislation and whether this may contribute to its development in Switzerland.
Regarding mediation within the Judiciary, I had mentioned the lack of significant development in this field. I identified two main causes.
The first one is the principle of party autonomy established in the Swiss Code of Civil Procedure (Art. 216 CCP: see text in French at http://www.admin.ch/ch/f/rs/c272.html) pursuant to which mediation is considered as being independent from the Courts (Court ordered mediation being thus not known in Switzerland) and does only vest with the free will of parties interested therein.
Second, ju [...]
In the Romanian Parliament there has been submitted a draft to amend the legislative framework regarding mediation.
Thus, according to the draft, prior to referring the case to the court of law or the criminal pursuit body, Parties or any of these are bound to try and settle the conflict by mediation, under penalty of prematurely filing the lawsuit or the precursory pursuit.
The interested Parties and/or the interested Party, as the case may be, are bound to provide evidence of the fact that they had tried to settle their litigation by mediation within conflicts arisen in the following fields:
a) In the field of consumers’ safety, if a consumer claims damages as result of having purchased [...]
Picking up where I left off last post, I want to discuss what I consider to be a major problem with the Ontario Commercial Mediation Act, 2010 (OCMA) relating to the admissibility of evidence of what occurred during a mediation.
Generally (with some exceptions) at Common Law anything said or done in mediation is inadmissible in subsequent proceedings. This “mediation settlement privilege”, as it is sometimes referred to, is understood to be critical to the success of the process because it permits frank and open discussion at the mediation.
However this concept has been seriously eroded the Province of Ontario, Canada, by the enactment of section 9(3) of the OCMA which says, “Informati [...]