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A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy

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 [...]

Recommendations to develop International Commercial Mediation in Singapore

So, dear Readers,
This time last year I was telling you about new mediation initiatives in Hong Kong. Well, this year I hope to send you into the festive season with some very exciting news from Singapore.

On 3 December 2013, Singapore’s Ministry of Law unveiled key initiatives to transform and develop its international commercial mediation sector. Based on recommendations of a Working Group established in April 2013 by Singapore’s Chief Justice and the Ministry, the recommendations include the establishment of two new independent mediation entities: a new professional mediation body (the “Singapore International Mediation Institute”), and a new international mediation service provi [...]

Chief Justice of Samoa launches Mediation rules

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 [...]

A Short History of New Zealand

While these mediations are commercial at heart, they beat with a cultural pulse and there is a sense of majesty as the Crown sits down to kōrero with Iwi … gather around, for the history of the real Middle Earth is not one of hobbits and magical rings, but of a people struggling to coexist in a far flung corner of the New World.

treaty

 The Treaty of Waitangi was a written agreement made in 1840 between the British Crown and more than 500 New Zealand Māori chiefs. After that, New Zealand became a colony of Britain and Māori became British subjects.

Today the Treaty is considered to be New Zealand’s founding document.

It was drafted in English and then translated into Māori and it was pre [...]

ADR in Portugal: Hopes for the Future

The Law No. 29/2013, which entered into force on 20 May 2013, lays down the general principles applicable to mediation in Portugal. There are many reasons to believe that mediation could develop faster than before on the Europe’s West Coast. Fans of fado (a distinctly Portuguese music genre, well known for its artistic refinement and emotiveness) will agree that there are not too many nations that are able to express their feelings in a comparable way. Some historical examples of peaceful confict resolution in Portugal (to start with the Treaty of Tordesillas) are also unique. Therefore despite the current economic crisis, there are hopes for a brighter future, with a greater role for ADR.

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The Need of a “Quiet Revolution” in Brazil

Ever since I started Law School, and for some years throughout my legal career, I was trained to work with the Win-Lose negotiation approach. Our legal culture glorifies the winners, but lacks conciliation alternatives. It provides no other alternative rather than seeking victory at the expense of the other parties.

However, as soon as I joined the legal team of a Brazilian aircraft manufacturer, I was presented an article entitled “The Strategic Lawyer” .

Undoubtedly,it had an immediate impact in the way I viewed my legal thought and behavior. Interestingly, this article was presented to me by an engineer, not a lawyer.

For those who haven’t had the opportunity to read it yet, the [...]

Penalties for the non participation in mandatory report sessions on the mediation benefits

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 [...]

Latest mediation development in Geneva, Switzerland: hope for (better) future ?

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 [...]

The New Hong Kong Mediation Ordinance: Much Ado About Nothing?

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 [...]

Innovative practice with lessons for us all: the Scottish Legal Complaints Commission

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 [...]