If I look back 10 years ago I can notice that mediation has had an evolution which at that time, we could but hope for. From the random pilot projects and the search “laboratories” of this activity, in the year 2013, mediation has become a freestanding profession and even a social and professional phenomenon.
Mediation is a conflicts resolution method and humanity has begun to become more and more aware of its efficiency. This process has determined remarkable progress at the legislative, institutional, and professional construction level. We can notice that mediation has been integrated by Governs, corporations or by people in their own conflicts resolution policies.
Pursuant to artic [...]
In previous posts I had pointed out how difficult it is in my area to make mediation taking off and despite the fact that Switzerland has been known as a “neutral” country with a long standing practice of promoting peace in the settlement of dispute, at least viewed from an international perspective.
A figurehead of the Swiss History, Nicolas de Flue, was influential in bringing peace through mediation at the time when the people from the Swiss Confederation were fighting between themselves for religious reasons.
Nowadays, it has been the express intent of the Swiss Federal Council (the Swiss Government) to promote amicable dispute resolution (ADR) within the Judiciary. When enacting the (fi [...]
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 [...]
Mediation is often portrayed as a useful vehicle for disputes between equals, where parties can be expected to speak for themselves and neither has significant power over the other. Critics, and even supporters, become more sceptical when it comes to less symmetrical situations. Complaints against professionals are one such category. The professional is seen to have power, status, authority and, usually, cash while complainers lack the substantive knowledge to hold professionals to account: they don’t know what they don’t know.
And yet one of the more interesting innovations in Scotland has been the embedding in legislation of just such a scheme. The Legal Profession and Legal Aid (Sco [...]
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 [...]
On Friday 22 June 2012, the National Council of Bhutan unanimously enacted the Alternative Dispute Resolution Bill. As a result, the Kingdom of Bhutan joined the group of jurisdictions with a mediation/ADR-friendly regulatory framework.
Bhutan is a small country, located on the southern slopes of the eastern Himalayas, populated by only approx. 700,000 people. Bhutanese tradition is deeply steeped in its Buddhist heritage. In recent decades the country has made impressive gains in human development (UNDP’s Report), and was even rated by Business Week the happiest country in Asia and the eighth-happiest in the world. Bhutan completed the transition from absolute monarchy to constitutional [...]
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 [...]
On December 15, 2011, the Act for the Promotion of Mediation and other Procedures of Extrajudicial Conflict Settlement (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was passed in the “lower chamber” of the German parliament (Deutscher Bundestag).
The adoption of the Act was based on the recommendation of the Legal Committee (Beschlussempfehlung und Bericht des Rechtsausschusses), which – as stressed in the official release – was made unanimously by all five political factions in the Bundestag (i.e. in a truly mediation-like manner!). The Committee agreed on a number of amendments to the original draft presented in April 2011 (1 [...]