In: International Commercial Mediation

Author: Anna Howard (Centre for Commercial Law Studies, Queen Mary University of London)

Mediating is, in the end, service. Humility is its fertile soil.” Bill Marsh in “David Richbell – Lessons in Life and Mediation”

The last couple of months have offered a collection of compelling posts on the Kluwer Mediation Blog. From the analysis of court decisions in Canada and Singapore on the enforcement of mediated settlement agreements, to insights into key developments on online dispute resolution, and onto a number of pieces on the increasing number of mandatory mediation initiatives across the globe –  there is something for everyone. You will find below a brief summary of, and a link to, each of the posts on the Kluwer Mediation Blog in November and October.

In “The Politics Of Being Polyanna”, Geoff Sharp considers the essential role played by mediator’s optimism. Geoff explores how mediators can be authentic and transparent yet be optimistic when they are not. Drawing on the words of Bernie Mayer, Geoff explains that the mediator’s job is to “effectively hold the tension between being both optimistic and realistic.

“David Richbell – Lessons In Life And Mediation” – in this moving piece, Bill Marsh reflects on what made his close friend and colleague, the late David Richbell, such a good mediator. The many qualities identified include David’s ability to understand what too few mediators do – that enabling people to understand each other will usually bring about resolution, whereas simply pursing resolution will often not bring about understanding.

In “Ontario Court Enforces Settlement Agreement”, Rick Weiler examines the recent decision of the Ontario Superior Court of 455 Gordon Baker Holdings Limited et al. v. Toronto Transit Commission, 2018, which demonstrates the approach a judge will take when a party calls into question the enforceability of a settlement agreement. Rick notes that, generally, the courts will have little patience with the phenomenon known as “settlers remorse.”

In “Communication For Online Negotiation”, Andrea Maia explores the barriers to, and the opportunities for, communication in online negotiation. Andrea considers techniques which can be used to improve communication and identifies innovations which may enhance online communication.

In “Public Policies In The Field Of Mediation: Between Appearance, Necessity and Opportunity”, Constantin-Adi Gavrila and Marin Padeanu describe the project “Mediation – Effective Public Policy in the Civil Dialogue” in Romania which aims to explore options for a public policy in Romania in the field of mediation. Constantin-Adi and Marin explain that the policy paper resulting from this project aims to transform mediation into an instrument which will contribute to the development of a culture of dialogue in Romania. They also identify the challenges and opportunities associated with this project.

In “Singapore Case Note Part 2: What Happens When A Party To A Mediated Settlement Agreement Has A Change of Heart?”, in the second of a series of posts on the Singapore High Court case of Chan Gek Yong v Violet Netto, Nadja Alexander and Shou Yu Chong focus on two of the plaintiff’s claims in her attempt to set aside the mediated settlement agreement and pursue her case through litigation. Nadja and Shou Yu draw on the comments of the High Court of Singapore to identify a number of takeaways for mediators.

In “To Compel Or Not To Compel: Is Mandatory Mediation Becoming Popular?”, Rafal Morek identifies the increasing number of countries where mandatory mediation has been implemented, or is being explored, including Greece, Romania, India and Turkey, and provides a very useful summary of such initiatives.

In “Ethics in Mediation II: Of The Poor Man And The Lizard”, Martin Svatos explores the importance and challenges for mediators in remaining impartial and independent. Martin also shares guidance on how parties may identify and address potential conflicts of interest, including Warren Buffet’s front-of-the-paper test.

In “Triggering The Narrative – The Power Of Narrative Hooks”, Rosemary Howell demonstrates the power of narrative triggers and explains their relevance for mediators as they seek constantly to assess the dynamics unfolding during mediations, considering whether and how to intervene. Rosemary draws on a recent, challenging mediation to describe how she innovatively introduced a new narrative into the mediation which then enabled the parties to resolve their dispute.

In “Listen – Please Listen”, Greg Bond identifies the recurrent theme in all of the mediations in which he has been involved: each party wishes that the other would listen more.  Greg explores why there is so little listening and considers how we might become better listeners.

In “Reading the Virtual Landscapes of Disputes: The Expanding World Of Digital Justice”, Ian Macduff identifies the key themes which emerged in the recent 2018 Forum on Online Dispute Resolution at the Centre for ICT Law and School of Law in Auckland. In particular, regarding the topic of innovation, Ian identifies the themes of the growing significance of digital technology in the courts, and the potential for automation in access to legal information and resources. As regards the topic of impact, Ian notes that the discussion centred on the challenges of ethics and digital technologies and, more fundamentally, on the question of trust.

In “A View from Frankfurt”, John Sturrock considers how our engagement as mediators can make a difference. Drawing on the variety of work in which John is involved, John identifies a recurring theme which can be summed up in the following words which he heard yet again very recently: “I wish we had talked about this two years ago.” John emphasises that mediators are called to help people to talk – and to listen to each other, and in so doing they help them in turn to listen to – and hear – each other.

In “Against Mediation Regulation”, in the third of a series of blogs on the “Mediation Moves” Conference recently held at Viadrina University in Frankfurt, Tatiana Kyselova draws on her involvement in one of the conference’s workshops to explore a number of reasons against mediation regulation. In so doing, Tatiana draws on a refreshingly wide range of contexts and countries.

In “Mediator Engagement And Politics – And Other Things We Care About”, John Sturrock shares insights from another workshop from the Viadrina conference which explored the extent to which mediators can or should disclose or express their views when engaged in politically-related mediation work – or more generally. Drawing on the work of Ken Cloke and Bernie Mayer, and exploring difficult and important questions, John’s post provides much food for thought.

In “Enabling Access, Enhancing Capabilities”, Ian Macduff explores how the notable advances in digital technology offer significant new options for disputants and dispute resolution providers, thereby widening the scope of access to justice. Importantly, Ian notes that “access” needs to be expanded to “accessibility” in order to capture the further steps that need to be taken to meet the promise of the access to justice movement for those whose disabilities are not catered for by digital pathways.

In “Mediation Moves – A Conference, A Workshop, A Movement”, in the first of a series of posts on the “Mediation Moves” conference recently held at Viadrina University, Greg Bond  shares the original way in which the preparatory workshop opened. In his thoughtful reflections on that experience, Greg identifies that being able to talk about our own vulnerability and to listen to the vulnerability of others makes a difference, and not only to our mediation practice.

In “Compulsory Mediation – the Australian Experience”, Alan Limbury provides a detailed summary of the mandatory mediation provisions in Australia and draws on research to demonstrate their positive impact.  Alan also shares the courts’ reasoning, in a number of key Australian cases, for ordering mediation which captures and conveys the inherent value of mediation.

In “Singapore Case Note: What Happens When A Party To An MSA Has A Change Of Heart?”, Nadja Alexander and Shou Yu Chong, provide a detailed summary of the recent case of Chan Gek Yong v Voilet Netto. In particular, Nadja and Shou Yu focus on the Singapore High Court’s treatment of allegations made by one party that the mediators pressured that party to sign off on the MSA. Nadja and Shou Yu also identify the lessons which those interested in mediation can take away from this case.

In “Greece: Mediation Going Compulsory. The Sequel”, Haris Meidanis explores the latest developments regarding mandatory mediation in Greece. Following the postponement of the mandatory mediation provisions in the recent mediation law until September 2019, Haris considers and responds to the reasons for the resistance to these provisions on mandatory mediation.

In “Mediation Navigation Beacons”, Rick Weiler draws on his nearly 30 years of experience in mediating to identify certain core principles which he comes back to in every case he mediates. These are, as Rick describes them, his mediator’s navigation beacons to which he turns and which he teaches to his law students. They include the principle of high expectations which Rick describes as: “My experience in the mediation process (and, frankly, life beyond) has been that people and events rise or fall to meet your expectations. We must model that sense of high expectations in every interaction during the mediation.”

In “How Many Shades Of Grey?”, against the backdrop of Colin Woodward’s work on the relationship between the objectives of individual freedom and the common good in American politics, Charlie Woods considers how the entrenchment of positions in the political context reflects some of the ideas behind the concept of a zone of probable agreement (ZOPA) in a negotiation. Charlie then identifies factors which influence the chances of falling within the ZOPA.

In “The Cultural Factor And Universal Business Practice”, Antonietta Marsaglia draws on her recent experience as a co-mediator in a cross-border dispute to consider the value of co-mediation for such disputes while also exploring the universal business language and values which transcend cultures.

In October, we reported on a recent case from the Singapore High Court: Chan Gek Yong v Violet Netto. In that post, we examined the High Court’s attitude towards parties who have had a change of heart after agreeing to conclude a Mediated Settlement Agreement (‘MSA’) and wish to challenge its validity. Last month we focused on one of the plaintiff’s (Mdm Chan) allegations, namely that the co-mediators put pressure on her to sign the MSA. As readers will recall, the High Court found there was no evidence to substantiate this claim. However this was not Mdm Chan’s only argument!

In this post, we look at another two of the unrepresented plaintiff’s claims in her quest to set aside the MSA and pursue her case through the litigation route. We draw on the observations of the High Court in Violet Netto to identify a number of takeaways for mediators.

What happened in Violet Netto?

The facts of Violet Netto have been outlined in last month’s post. Readers will recall that Justice Tan considered the extent to which there was evidence to suggest that Mdm Chan signed the MSA whilst:
1. under duress from the co-mediators;
2. incapacitated; or
3. not fully comprehending its terms.

This post deals with the second and third points.

Mdm Chan alleged that she signed the MSA whilst feeling unwell and under the influence of medication taken before the mediation session, which made her drowsy (at [15]). In effect, she argued that she was labouring under some form of incapacity or intoxication, which sapped her of her ability to agree to the terms of the MSA. She further claimed that one of the co-mediators from the Singapore Mediation Centre was aware of her condition, as he “noticed that she was anxious” (at [41]).

Secondly, Mdm Chan claimed that she was incapable of understanding the terms of the settlement agreement as she is not a lawyer (at [69]), even though the terms of the MSA were explained to her by the mediators before she signed it. In effect, she pleaded the defence of non est factum. It is noteworthy that she did not claim that the terms agreed at the negotiation table were inaccurately represented on the drafted settlement agreement which she and the defendants signed.

What did the Court decide?

The High Court dismissed Mdm Chan’s challenges to the validity of the MSA.

First, Justice Tan opined that she failed to prove that she was “so mentally incapacitated that she could not understand the general nature of the mediation and the Settlement Agreement which she signed” (at [46]). His Honour took into account evidence from the mediation which indicated that she was capable of comporting herself during the negotiations, and found that she “was an active participant in the discussions that took place during the mediation session” (at [44]).

Secondly, Justice Tan ruled that her allegation against the co-mediator, who had apparently allowed the mediation to proceed even though he was aware of her condition and took notice of her anxiousness, was unfounded, observing (at [47]), “It is natural that parties feel anxious during court proceedings and mediation as each party will try to get the best deal for himself.”

Finally, Justice Tan ruled that no one at the mediation except for Mdm Chan and her supporters knew of her infirmity, as she “admitted [in Court] that she did not inform the defendants and their lawyers that she was suffering from giddiness and drowsiness” (at [47]).

In respect to the defence of non est factum, Justice Tan reiterated that “it is trite law that a person of full age and understanding is normally bound by his signature on a document, whether he or she reads or understands the document or not[…] The defence of non est factum should only be allowed in exceptional situations to rectify injustice and unfairness” (at [62]). Mdm Chan’s plea for the defence failed, for it would not matter whether she understood the MSA once she had signed it. It was the Court’s opinion that the onus should have been on her to have taken the initiative and reasonable care to understand all terms enshrined within the draft MSA before she endorsed it with her signature and she had every opportunity to do so. Moreover, the terms of the draft MSA had been explained to her by the mediators before she endorsed it.

Takeaways for mediators

1. Normalise the experience of working through conflict. Mediation is hard work, and not just for mediators. Parties may be understandably anxious as they sit face to face with their adversary, loaded with the responsibility for making decisions that will lead to the resolution of the dispute in which they find themselves. Skilled mediators can normalise this situation by recognising what parties are going through and acknowledging their emotions and experiences as a ‘normal’ part of the iterative push and pull of mediation. This technique can help parties shift from a feeling of isolation to one of being connected (albeit tenuously) with others in similar situations, and invites feelings of anxiety to transform into hope.

2. Ensure that parties have the opportunity to bring advisers and support people to the mediation.

3. Be continually on the look-out for signs that parties might be fatiguing or otherwise disengaging from negotiations. As mediation processes may continue for many hours or even days, and may run into the evening, be on the lookout for signs of physical or mental fatigue, which may impact parties’ decision-making ability as they inch closer to a breakthrough and a final agreement.

4. Where you become aware of any party infirmity, for instance, if a party discloses that they feel unwell, it is prudent to reschedule the mediation session if the party’s condition cannot be otherwise adequately addressed e.g. where the party is able to access their medication and resume the mediation.

5. Where parties reach a settlement, there are differing views as to the extent to which mediators are responsible for explaining the meaning of its terms to the parties to ensure that they are all on the same page. Where both parties, or as in this case, one party is not legally represented, mediators need to consider the best way to deal with the MSA and be cognizant of the potential risks involved in advising parties on settlements as the Australian case (from the Supreme Court of Victoria) of Tapoohi v Lewenberg has shown. At the end of the day, the onus remains on the parties to study the terms of a contract for themselves before they sign off on it.

6. If it’s not already part of your practice, consider integrating separate pre-mediation meetings with each of the parties into your practice. Many of the points discussed here can be addressed, or at least begin to be addressed, prior to the first mediation session.

Author: 

Hot off the press, the case of Chan Gek Yong v Violet Netto (practising as L F Violet Netto) and another and another matter [2018] SGHC 208 (‘Violet Netto’) decided by the Singapore High Court provides us with clues as to the Court’s general attitude towards mediation and mediated settlement agreements (‘MSAs’). It is useful to reflect on the Singapore Court’s attitude towards mediation in light of the introduction of the Singapore Mediation Act (No. 1 of 2017) – which has been in effect since 1 November 2017 – and the emergence of the draft Singapore Convention on Mediation, which is expected to be adopted by the UN General Assembly later this year with a signing ceremony expected in August 2019.

There are many aspects of Violet Netto which could be explored. In this post, we focus on the Singapore High Court’s treatment of allegations made by one party that the mediators pressured her to sign off on the MSA.

What happened?

In September 2012, Mdm Chan– who represented herself throughout the entire legal process – instituted two civil lawsuits against her lawyers, referred to as Violet Netto, who had advised her in a conveyancing transaction, alleging that they had been professionally negligent and breached their duty of care owed to her vis-a-vis that transaction. Four years later in September 2016, Mdm Chan and Violet Netto agreed to mediation at the Singapore Mediation Centre (‘SMC’) conducted by two SMC-appointed co-mediators. The parties reached a mediated settlement agreement (MSA) at the end of the one-day mediation session: in return for discontinuing the lawsuits, Violet Netto agreed to pay Mdm Chan a sum of S$150,000 in instalments over the course of seventeen months, and the specific terms were drafted and endorsed by signature of all parties.

Just one week after signing the MSA, Mdm Chan appeared to have a change of heart. She informed the High Court at a pre-trial conference that she intended to proceed with her pending civil suits against Violet Netto, seemingly ignoring her obligations under the MSA. Despite this, Violet Netto began issuing the cheques needed to fulfill their payment obligations under the terms of the MSA. At the same time Violet Netto filed counter suits to strike out Mdm Chan’s pending civil suits.

How did the Court decide?

The High Court struck out Mdm Chan’s pending civil suits by administering its strike out powers under O 18 r 19(1)(d) of the Singapore Rules of Court (Cap 322, R 5, 2014 Rev Ed). Justice Tan Siong Thye formed the view that Mdm Chan had abused the Court’s process by seeking to continue with litigation although she had reached an agreement to settle the same dispute with her former lawyers, Violet Netto.

Of interest to mediators is the Court ‘s thorough examination of whether the MSA was validly concluded. Here Justice Tan considered if the extent to which there was evidence to suggest that Mdm Chan signed the MSA whilst:
• incapacitated;
• under duress; or
• not fully comprehending its terms.

Not only did Justice Tan find that the MSA was valid, His Honour found that Mdm Chan had reneged on her obligations because she simply was dissatisfied with the instalment arrangements (see [88] of the judgment).

Undue pressure by the co-mediators?

Having had a change of heart because she was displeased with the instalment arrangements, Mdm Chan sought to argue in Court that the MSA she signed was invalid for a large platter of reasons (see [15] – [18]). One of her noteworthy contentions was that she felt pressured by the SMC-appointed mediators. As reported in the judgment, Mdm Chan alleged that the co-mediators “persuaded and urged her to accept the amount offered by the defendants as it was almost the end of the one-day mediation session. The mediators further said that if the mediation failed, [they] would have to go back to Court for trial.” The reported judgment further states that Mdm Chan maintained that she “understood this to mean that she would have to incur further costs to continue the [pending suits]. She also stated that there was no time for her to consider the Settlement Agreement before signing it” (at [52]).

Mediators reading this will immediately recognize the standard mediator intervention of reality testing and ensuring mediating parties are aware of the (costs) implications of pursuing alternatives to settlement such as going to trial.

After considering all the arguments and evidence, Justice Tan opined that there was “no reason for anyone to feel pressured by [the mediators’ actions]” (at [57]). As the mediators were merely conveying words of advice founded upon facts and logical consequences of Mdm Chan’s ultimate decision to agree or disagree with the negotiated terms, it demands a tremendous stretch of imagination to interpret those words as one of undue pressure.

Secondly, Justice Tan ruled that no undue pressure had been applied on Mdm Chan by the mediators, though she alleged that she was pressed to endorse the MSA “as it was already late in the day [and hence] she had no time to consider the [terms of the] Settlement Agreement” (at [58]). It appears to be the Court’s view that circumstantial time pressures should not invalidate MSAs. His Honour opined that Mdm Chan could simply have requested for more time if she needed it to consider the terms of the MSA before she endorsed it with her signature. There was also no actual pressure by the mediators, as she admitted that they had not forced her to endorse the MSA against her volition.

What can we learn from the Violet Netto case?
As mediators, lawyers and others interested in mediation, what can we take away from this case? Here are some of our reflections.

1. Prima facie MSAs are to be honoured.
2. It is an abuse of process to litigate issues which have already been validly concluded by way of an MSA.
3. Parties need to take reasonable care to read and ensure they understand an MSA before signing it. Remember that Mdm Chan was unrepresented in this case.
4. Where parties are legally represented in mediation, lawyers should explain the meaning of the MSA’s terms to their clients and explain the consequence of breach of the MSA. Although not directly addressed in the judgment, this point is consistent with the tenor of the court’s reasoning and would be consistent with case law in Australia and other jurisdictions.
5. Evidence of shift in a party’s position (here Mdm Chan) after the signing of the MSA is, of itself, not evidence of undue influence, intimidation or the like.
6. For mediators: reality testing by mediators is an indispensable part of the mediation process. At the same time, and as a matter of best practice, mediators are encouraged to be sensitive to the conflict dynamics between parties as they shift throughout the mediation and to be on high alert for signs of potential discomfort or dissatisfaction by a party. For example, in relation to unrepresented parties, mediators may consider including in the mediation agreement a clause recommending that parties obtain professional advice and additionally remind parties of this option during the mediation, perhaps at the start of the mediation and again before sign off on an MSA. It may also be helpful for mediators to reflect on how they frame their reality testing to ensure they make clear that their role is to assist the parties to assess the consequences of both reaching a (particular) settlement and also pursuing an alternative strategy outside the mediation room – highlighting that the choice is always theirs. Yes, there is nothing new in these suggestions. But when disgruntled mediation parties seek to challenge the validity of an MSA by blaming the mediator, it’s good to go back to basics and make sure we are getting that right.

In our next post, we will focus on another aspect of the Violet Netto case, namely issues related to a party’s ability to understand what they are signing.

Author: Anna Howard (Centre for Commercial Law Studies, Queen Mary University of London)

In every negotiation the most important work is done by those in the shadows.” Ian Wishart, as quoted by Bill Marsh in “Personal Connections.”

August and September offered a particularly varied and vibrant selection of posts on the Kluwer Mediation Blog. The topics addressed, to name just a few, include: developments in the creation of the Japan International Mediation Centre – Kyoto; the introduction of mandatory mediation in Romania; developments in Vietnam’s legal and institutional framework for commercial mediation; the potential which lies in establishing strong connections across conflicts; the mediation of art disputes; the timely and provocative idea of an Interdependence Day and an International Declaration of Interdependence; and the impact of artificial intelligence on alternative dispute resolution. A brief summary of each of the posts on the Kluwer Mediation Blog in August and September can be found below. Have a look – there is something for everyone…

In “What might artificial intelligence mean for alternative dispute resolution”, James South and Andy Rogers of CEDR explore a number of questions regarding the impact of artificial intelligence on ADR including: What is AI likely to do in a setting which has been so focussed on combining subtle concepts such as legal rights and a sense of fairness (adjudication) or human interaction and coaching (mediation)? And where do these developments leave us and what will their impact be?

In “Guerilla Gardening – and a plea for a universal declaration of interdependence”, John Sturrock offers the timely and thought-provoking idea of an Interdependence Day and an International Declaration of Interdependence. Drawing on the work of Yuval Noah Harari, Bobby Duffy and Martin Nowak, John identifies a bold antidote to the isolation, silos and alienation too frequently seen in current times.

In “Nourishment for the spirit: the 20th Tulane-Humboldt summer school on Alternative Dispute Resolution”, Greg Bond shares the reflections of some of the students of the 2018 Tulane-Humboldt summer school. This year marked the 20th anniversary of this summer school which has trained over 2000 students from 87 countries on principled negotiation and mediation.

In “Using a speaking stick in mediation”, Alan Limbury explains how he uses an aboriginal speaking stick in his mediations, and to great effect. Alan also shares the five functions of the speaking stick as identified by Alain Roy, a renowned French mediator, which capture why the beautiful speaking stick can be so efficient in mediations.

In “The art of mediation and mediation of art disputes”, Rafal Morek identifies the particular nature of art disputes and explains why mediation is suited for such disputes. Rafal also lists some art disputes for which mediation has been successful and describes numerous initiatives by international organisations to promote the use of mediation for art disputes.

In “Feel the earth move – shifts in the international dispute landscape”, Eunice Chua provides a comprehensive summary of a panel discussion at the recent 2018 UNCITRAL Emergence Conference which shared the title of this post. In particular, Eunice
explores the two key themes which emerged from the panel discussion: first, the idea of a growing dispute resolution ecosystem; and secondly, a changing culture.

In “Mediation in the theatre: no thanks”, Greg Bond describes a workshop he gave on mediation based on the plays and stories of German Romantic writer Heinrich von Kleist which are full of compelling conflict. Greg explains how he presented interests-based negotiation and then asked participants to be mediators for Kleist’s obsessive characters. Greg also considers how the endings of other well-known literary works might have differed had there been some decent mediation.

In “Evaluation or guidance? What do small claimants want from mediators?”, Charlie Irvine considers the perspective of those who use mediation in small claims where most have no legal representation. Charlie shares the claimants’ views about what mediators do to assist and then contrasts this with the mediators’ perspective on what might have been useful for the claimants. Charlie explains how the evaluative/facilitative debate inhibits practitioners from doing what may seem helpful and suggests changes to address this conundrum.

In “Vietnam series: four key features of the commercial mediation framework”, Nadja Alexander offers an overview of the main features of Vietnam’s legal and institutional framework for commercial mediation. By way of very brief overview, the four key features relate to mediator qualifications and requirements for foreign mediators, institutional mediation rules and enforceability of mediated settlement agreements.

In “What have the robots ever done for us?”, Charlie Woods draws on a speech given by Adair Turner earlier this year on “Capitalism in the age of robots: work, income and wealth in the 21st-century” in which Turner argues that the rapid and unstoppable development of automation – which will play out over the next fifty to a hundred years – will have very profound implications for how we live and work. Charlie considers the implications of this development for the skills of mediators and, importantly, the contribution which such skills can make in these changing times.

In “Personal connections”, Bill Marsh describes the connection between two officials, Olly Robbins (representing the UK) and Sabine Wayward (representing the EU), who have been instrumental in keeping the Brexit talks alive during difficult periods. Bill uses this example to explore the importance of personal connections in mediation and the value of direct engagement between the parties. Bill prompts us as mediators to reflect on how we might better enable parties to create connections across the divide.

In “Total recall”, Geoff Sharp shares his theory that memory is predominantly visual and that it is greatly enhanced by visual thinking. Given that our ability as mediators to take in information, store it, and recall it is crucial to our work, Geoff offers some novel techniques on how to enhance this ability.

In “Stone soup – linking mediation theory and practice”, Rick Weiler acknowledges the gap between mediation theory and practice, and describes the Stone Soup Dispute Resolution Knowledge Project at the University of Missouri which is designed to lessen that gap through the collaboration between faculty, students, scholars, practitioners, educational institutions and professional associations. Rick provides a captivating summary of the Stone Soup fable upon which the project is based and shares how this fable’s message has influenced his teaching.

In “Mandatory pre-institution commercial mediation in India: premature step in the right direction?“, Juhi Gupta explains the key features of Section 12A of India’s Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill which provides for mandatory pre-institution mediation for commercial disputes. Juhi also considers the further changes which may be needed in order for there to be a greater uptake of commercial mediation in India.

In “Corporate culture and business mediation”, Paul Eric Mason draws on a number of examples from various cultures to explain how business and corporate culture can affect mediation.

In “Why don’t we mediate the “big” disputes?”, Rick Weiler uses Robert A. Baruch Bush’s seminal article “What do we need a mediator for? Mediator’s value-added for negotiation?” in arguing for a greater use of mediation in large disputes involving many parties.

In “Online Dispute Resolution in Brazil: a major opportunity for stakeholders”, Andrea Maia and Daniel Becker identify key developments in Online Dispute Resolution across the globe and then turn their focus to Brazil. They explore the opportunity for further use of ODR in Brazil and consider the resistance in Brazil to an increased used of ODR.

In “Seeing is interpreting – we are all blind in different ways”, Ting-kwok IU explores the ways in which our perspective might give us only a limited view. Ting-kwok uses the Kanizsa Triangle to illustrate that what we see may be an interpretation of what we think we have seen rather than what we have actually seen. Ting-kwok then describes the unique contribution which those who are visually impaired may be able to bring to mediation.

In “Mandatory ‘mediation attempt’“, Constantin-Adi Gavrila explains recent legislative developments in Romania regarding mandatory information sessions on mediation and how such developments have been received.

In “Getting into gear: the Japan International Mediation Centre – Kyoto”, James Claxton and Luke Nottage provide a detailed overview of key developments in the creation of the Japan International Mediation Centre – Kyoto, including the preparation of procedural rules and the compilation of a panel of mediators. James and Luke also share proposals to improve international arbitration services in Japan which, if realised, may present opportunities for symbiosis with the Japan International Mediation Centre – Kyoto.

In “What happens in mediation stays in mediation: new standards of informed consent to mediation in California”, Rafal Morek provides a detailed overview of recent changes to California’s confidentiality mediation regulations which bring about a robust and absolute approach to confidentiality in mediation.

In “Ethics in mediation: Caesar’s wife must be above suspicion”, Martin Svatos shares a recent experience in a mediation to explore the issues of impartiality, neutrality and independence in mediation and urges mediators to take the issue of conflict of interest very seriously.

In “Reconnecting with the power of symbolism”, Rosemary Howell shares a compelling example of her students’ creativity in depicting a symbolic environment of collaboration and co-operation. Rosemary acknowledges how her students’ work has reignited her enthusiasm as a mediator and facilitator to be more creative in developing ways to use the power of symbolism to encourage collaboration and harness creativity.

In “Politics and posturing: anchoring versus creative options”, Greg Bond uses a recent case from German politics to illustrate the claim for mediation as a decision-making tool. Greg uses this example to show that politics needs less posturing and more collaborative decision-making, even across political differences, and that the tools of mediation can help to achieve this.

In “Civility may not be enough – but it’s a good start”, drawing on the work of Mark Kingwell and Amartya Sen, Ian Macduff describes how civility is the oil that makes the dialogues of difference – and hence of justice, resolution, participation – possible. Ian identifies the important nuance that civility and dialogue are not joined in a linear fashion but rather feed on each other, each making the other possible – even if, as Ian says, in a muddling sort of a way.

In “Letting go”, John Sturrock describes recent experiences of “letting go” and considers, more broadly, whether mediators need to let go of ego. In so doing, John notes that the whole point of being a mediator is that we fade away when the job is done and that all that should really matter to us as mediators is the sense of personal gratitude for having an opportunity to contribute to others’ needs, to the best of our ability.

Author: Associate Professor Eunice Chua (Singapore Management University)

On 25 July 2018, I was privileged to be part of a conference panel moderated by the inimitable Professor Nadja Alexander, CEO of the Singapore International Dispute Resolution Academy and my colleague at the Singapore Management University School of Law. The panel’s inspired title was “Feel the Earth Move – Shifts in the International Dispute Resolution Landscape”. The panel comprised, as Nadja put it, “pracademics”—practical thinkers and thinking practitioners. In the former category were Nadja and I, and Ms Anna Howard, who is presently working on her doctorate at Queen Mary University and no stranger to readers of this blog. In the latter category were Ms Nina Mocheva, Senior Financial Sector Specialist in the World Bank Group, USA; Mr Lok Vi Ming, SC, Managing Partner of LVM Chambers LLC, Singapore; and Mr KC Lye, Partner of Norton Rose Fulbright, Singapore.

We were all specialists in different international dispute resolution processes—mediation, arbitration and litigation—but two common themes emerged from the panel discussion. First, the idea of a growing ecosystem; and, second, a changing culture.

A growing ecosystem

The panel observed that the international dispute resolution ecosystem had grown rapidly. Many jurisdictions are positioning themselves as international dispute resolution hubs to attract dispute resolution work emerging from cross-border conflict, giving rise to the phenomenon of international dispute resolution tourists, who are able to pick and choose their destinations. These tourists could be users, legal advisors, and service providers (mediators, arbitrators, international judges).

What would make a place an ideal international dispute resolution tourist destination? Answers included a quality legal framework to support different dispute resolution processes (i.e. a good, clear map for the tourist); convenience and accessibility (tourists, especially those who are more senior, may not wish to travel long distances); and a good range of services to meet the tourists’ needs and wants (even a good milkshake parlour nearby if that was so desired).

Why work on becoming an ideal international dispute resolution tourist destination? Nina shared that a study by the World Bank Group showed that in the context of arbitration, the adoption of the New York Convention led to increased levels of bilateral foreign direct investment. Conversely, using Vietnam to illustrate the negative consequences of a flawed arbitration regime, Nina shared that a number of deals had been retracted due to the high risk of contract breach and challenges enforcing arbitration awards. In the cotton industry, for example, the International Cotton Association publishes a list of firms that default on arbitration awards and members of the Association cannot trade with the listed firms. This has limited the economic growth of the garment and textile industry in Vietnam. One can easily imagine these benefits and costs to apply in the mediation context as well.

Turning to examine the different international dispute resolution processes in detail, KC expressed that international arbitration remained the default process for international disputes despite its perceived weaknesses, notably the high costs and lengthy time taken to go through the process. Vi Ming added that the recent proliferation of international courts like the Singapore International Commercial Court was an attempt to address some of the limitations of international arbitration, including the lack of an avenue of appeal and a lack of transparency. Nevertheless, the impact of international litigation has still not been greatly felt due to the challenges of enforcing the judgments of international courts. The Hague Convention on Choice of Court Agreements has 31 contracting parties (the majority being European Union member states), far fewer than the New York Convention’s 157. However, given the 60-year history of the New York Convention and the relative youth of the Hague Convention on Choice of Court Agreements, it may be some time before the impact of international litigation is truly felt.

In the international mediation space, Anna spoke from her research on the EU Mediation Directive to suggest that perhaps the reason for the lower uptake in mediation was the lack of understanding of what users really wanted. She shared that her interviews with in house counsel showed that an important factor to them in dispute resolution was confidentiality, and this was more so than enforceability. Perhaps it was this aspect of mediation regulation that needed attention before mediation could become more widespread.

My contribution to the panel was to offer a perspective from Asia. What Asia most needs to grow the use of mediation might differ from Europe. A regional comparison of the data gathered through the Global Pound Conference Series showed that in Asia, more than in any other region, there is a desire for increased regulation of mediation. In response to a question about what would most improve commercial dispute resolution, 64% of Asian respondents chose the option “legislation or conventions that promote recognition and enforcement of settlements, including those reached in mediation”. Only 48% of Continental European respondents chose this option. The uniqueness of Asia is further bolstered by results from all other regions indicating that a demand for increased efficiency would have the most significant impact on future policy-making in commercial dispute resolution; this was not true for Asia. In Asia, the top response from 65% of respondents was a demand for certainty and enforceability of outcomes. This suggests to me that the UNCITRAL Convention on International Agreements Resulting from Mediation (the Singapore Mediation Convention) could have greater significance for Asia compared with other regions in the world. Asia has a long way to go before achieving the standards contained in the Convention due to a large diversity in the practice of and experience with international commercial mediation. Nevertheless, recent developments in the two largest Asian economies—China and India—as well as two major Asian financial centres—Hong Kong and Singapore—demonstrate a willingness to enact and amend legislation as well as implement policies to support commercial mediation. This is probably because mediation is viewed as being able to facilitate international trade and promote the achievement of Asia’s ambitions in economic growth through projects such as the Belt and Road Initiative and the Regional Comprehensive Economic Partnership.

A changing culture

The panel discussed that the international dispute resolution ecosystem was more than ever before responding to demands of the users rather than being dictated by service providers, resulting in a change in culture. Most notably, there was a blurring and mixing of processes that had traditionally been quite distinct. This was true of international arbitration and litigation where processes and institutions have been borrowing from each other. For example, the Singapore International Commercial Court borrowed from arbitration by permitting the parties to apply for simplified rules of evidence to govern the proceedings as well as for confidentiality of proceedings; and many international arbitration institutions borrowed from litigation by amending their rules to include provisions for summary or expedited processes and joinder.

Mediation is increasingly combined with arbitration to resolve international commercial disputes, challenging the narrative of arbitration being the preferred mode of resolving international disputes. The two most recent Queen Mary International Arbitration Surveys provide an excellent illustration of the growing importance of mediation for international commercial disputes. In 2015, 56% of respondents indicated that they preferred international arbitration and 34% international arbitration together with ADR to resolve cross-border disputes. In 2018, more respondents indicated a preference for international arbitration together with ADR (49%) as compared with international arbitration on its own (48%). More importantly, the 2018 survey broke down the responses into subgroups of private practitioners, arbitrators and in-house counsel. When we look only at the in-house counsel group’s responses, a hefty 60% preferred international arbitration together with ADR and 32% international arbitration on its own. Evidently, the preferences of arbitrators and private practitioners do not align with that of in-house counsel; this was a point the Global Pound Conference Series had also made. Practitioners are now beginning to see and respond to the preferences expressed by clients to remain competitive in the international dispute resolution marketplace. Clients expect advice from practitioners on a range of dispute resolution options even if they may specialise in one. This is a positive development for the ecosystem.

Concluding thoughts

The panel appropriately concluded with considering the impact of the Singapore Mediation Convention, the key provisions of which have been summarised in an earlier post. The panel recognised the Singapore Mediation Convention as an earth-shaking development in international dispute resolution. The Singapore Mediation Convention will give greater visibility to international commercial mediation, provide a carefully calibrated model for countries to adopt, and address any perception of mediation as a less robust way of resolving disputes. However, until the Singapore Mediation Convention gains sufficiently widespread acceptance, Arb-Med-Arb could be the best way to enjoy the benefits of mediation whilst taking advantage of the enforceability afforded to arbitral awards.

Author: Professor Nadja Alexander (Singapore International Dispute Resolution Academy)

In the first few months of this year I found myself returning to Vietnam a number of times thanks to Vietnamese initiatives in commercial mediation. Most recently I was involved in workshops hosted by the Vietnam Business Lawyer’s Club, the Judicial Academy and the International Finance Corporation (IFC). Given the mediation activity in Vietnam and previous Kluwer posts on aspects of Vietnamese mediation, this post offers an overview of the main features of Vietnam’s legal and institutional framework for commercial mediation.

Vietnam has taken enormous strides towards enhancing its legal and regulatory framework for commercial mediation. The recent advancements within the mediation framework come at a critical time for the Vietnam, which experienced 6.8 per cent GDP growth in 2017 and has seen strong private sector growth as a result of the transition from a centrally planned economy to a market economy in the last two decades. With an increase in the private sector generally comes an increase in the volume of commercial disputes, potentially burdening courts and increasing case backlogs. Mediation will therefore be an important lever in the judicial works in Vietnam, and can help to prevent a flood of litigation which might otherwise delay access to commercial justice. Here we provide an overview of the key features of the regulatory and legal framework for commercial mediation in Vietnam. It follows the recent post on mediator settlement proposals under the Rules of Mediation of the Vietnam Mediation Centre and also last year’s post dedicated to mediator qualifications in Vietnam.

The four key features relate to mediator qualifications and requirements for foreign mediators, institutional mediation rules and enforceability of mediated settlement agreements. They are drawn from the following instruments: Decree No. 22 on Commercial Mediation, Chapter XXXIII of the amended Civil Procedure Code of Vietnam, and the Rules of Mediation of the Vietnam Mediation Centre.

1. Qualifications for Commercial Mediators in Vietnam. Decree No. 22 On Commercial Mediation, issued in 2017 and based on the UNCITRAL Model Law on International Commercial Conciliation, establishes the qualifications necessary to practice as a commercial mediator in Vietnam. These qualifications include:

a. holding a university degree, with at least two years of experience in the mediator’s field of training;
b. having mediation skills and training, and an understanding of law, business, and commerce; and
c. being of good moral character.

Mediation institutions and service providers may establish additional criteria for their registered mediators. These may include mediation training, for example. Mediators must be registered either at an approved mediation organization such as the Vietnamese Mediation Centre or with Department of Justice. These measures constitute a high bar for commercial mediators, and indicate an interest on the part of the government to professionalize the practice of commercial mediation in Vietnam.

2. Recognition of Foreign Commercial Mediation Centers in Vietnam. The Decree on Commercial Mediation permits the operation of foreign mediation institutions and centers within Vietnam, so long as they are legally established in their country of origin and comply with Vietnamese law and Constitution. The Decree recognizes two distinct modes of operation for foreign mediation institutions: “branches” of foreign commercial mediation institutions may provide mediation services in Vietnam, and “representative offices” may conduct business development, and promote mediation practice in Vietnam. However, it seems unclear from the Decree whether foreign commercial mediators practicing in Vietnam under a foreign commercial mediation centre branch are subject to the same qualification requirements as Vietnamese mediators.

3. The Vietnam Mediation Centre and the VMC Mediation Rules. The Vietnam International Arbitration Centre launched the Vietnam Mediation Centre in May 2018, and published new Mediation Rules which went into effect on 1 July 2018. The Vietnam Mediation Centre is the first organization of its kind to go into operation in Vietnam. It is expected to significantly strengthen the practice of mediation and make dispute resolution services in Vietnam more appealing and favorable to international investors and clientele. The Mediation Rules contain provisions related to the style of mediation the Vietnamese government seeks to promote, which encourage settlement proposals by the mediators, but restrict adjudication or arbitration by mediators unless it is provided upon the agreement of the parties.

4. Recognition and Enforcement for Mediated Settlement Agreements. One of the principal issues for parties in mediation proceedings is the question of enforcement. In 2015, Vietnam passed a revised version of the Civil Procedure Code which provides for court recognition of successful out-of-court mediated settlement proceedings (Chapter XXXIII). Parties may submit their written settlement agreement to the relevant court for recognition within six months from the date on which the agreement was reached. The court will consider several factors for recognition, including whether the parties to the agreement are the parties with enforceable rights and obligations stemming from the mediation, and whether the mediated settlement agreement is voluntary and comports with Vietnamese law. After the court determines to recognize the agreement, the settlement agreement becomes enforceable as a civil judgement under Vietnamese courts. It is noteworthy that at this time, Vietnamese courts do not recognize mediated settlement agreements reached in proceedings overseas.

Given the significant economic growth and growing cross-border trade in Vietnam, this newly established legal and institutional framework is timely.

For foreign investors and traders, however, commercial mediation will really become a viable dispute resolution option when Vietnamese courts recognize mediated settlement agreements reached in overseas proceedings. For Vietnam, a next step in this direction could be the adoption of the draft Singapore Convention on Mediation which expected to be finalized at the end of this year with the signing ceremony due to take place in the second half of 2019.

The Singapore Convention is significant as it will facilitate, for the first time, the enforcement of international commercial settlement agreements resulting from mediation. The draft Convention applies to “international agreements resulting from mediation” and concluded “in writing” by parties to resolve a “commercial dispute”. In short it applies to cross-border commercial mediation scenarios where mediated settlements are not otherwise enforceable via a consent arbitral award or a court order.

This blog was first published on the Kluwer Mediation Blog on 24 July 2018: http://mediationblog.kluwerarbitration.com/2018/07/24/singapore-convention-mediation/ 

Author: Professor Nadja Alexander (Singapore International Dispute Resolution Academy)

The forthcoming Singapore Convention on Mediation will be the first UN Treaty named after Singapore.

At the 51st Session of the United Nations (UN) Commission on International Trade Law (UNCITRAL) on 26 June 2018, the final drafts of the Convention on the Enforcement of International Settlement Agreements and corresponding Model Law were approved. A resolution to name the Convention the “Singapore Mediation Convention” was also approved. This concludes three years of vigorous debate with participation by 85 member states and 35 international governmental and non-governmental organisations.

Once finalised and adopted by UNCITRAL, the next step is for the UN General Assembly to adopt the Convention and Model Law before member states may sign on to the Singapore Convention on Mediation. The Convention will come into force once it is ratified by at least three member states. A signing ceremony for the Singapore Convention on Mediation is expected in Singapore in 2019.Previously on this Blog, A Convention on the enforcement of iMSAs … AND a new Model Law, it was explained how UNCITRAL Working Group II (WGII) prepared the draft instruments and supported Singapore’s bid to host a signing ceremony for the Convention. Main Features of the Singapore Convention and Model Law Terminology
UNCITRAL developed the Model Law on International Commercial Conciliation (2002 Model Law) in 2002. The new Model Law seeks to revise this, primarily by replacing the term “conciliation” with “mediation”. WGII recognized that the terms ‘mediation’ and ‘mediator’ were more widely used and changing the terminology would make it easier to promote and enhance the visibility of the Convention and Model Law.Scope
The Convention is significant as it facilitates, for the first time, the enforcement of international commercial settlement agreements resulting from mediation. The Convention applies to “international agreements resulting from mediation” and concluded “in writing” by parties to resolve a “commercial dispute”. The Convention excludes settlement agreements which (a) have been approved by a court or have been concluded in the course of court proceedings; (b) are enforceable as a judgment in the state of that court or (c) that have been recorded and are enforceable as an arbitral award. The rationale of the carve out is that there are other widely accepted international instruments such as the New York Convention and the Hague Convention on the Choice of Court Agreements that specifically govern those types of settlement agreements. The Singapore Convention will focus on circumstances where these other instruments are not applicable.Mode of Enforcement
The Draft Convention provides flexibility and autonomy to the State Parties in not prescribing a specific mode of enforcement. Instead it lists conditions to be fulfilled in order for a State to enforce a settlement agreement under the Convention, i.e.:
– “in accordance with its rules of procedure, and
– under the conditions laid down in this Convention, in order to prove that the matter has been already resolved” (for applicable conditions, see Articles 2(1) and 4). Enforcement application
According to Article 4, a party relying on a settlement agreement shall supply to the competent authority of the State where relief is sought, the following:
(a) the signed settlement agreement; and
(b) evidence that the settlement resulted from mediation Examples of evidence that the settlement resulted from mediation might include the mediator’s signature on the settlement agreement, document signed by the mediator confirming the mediation was carried out, an attestation by the institution administering the mediation or any other evidence acceptable to the competent authority. However, the ‘catch-all’ provision leaves the competent authority of the State Party the autonomy to decide what evidence is acceptable. Exceptions to enforcement/Refusing relief
States may refuse relief only if one of five grounds in Article 5 is proved. The five grounds Article 5(1) include:
• Incapacity of a party to the settlement
• The settlement agreement is null and void, inoperative or incapable of being performed under the applicable law
• The settlement agreement
o Is not binding, or is not final, according to its terms
o Has been subsequently modified
o The obligations in the settlement agreement
o Have been performed or
o Are not clear or comprehensible
o Granting relief would be contrary to the terms of the settlement agreement
• There was a serious breach by the mediator of mediator standards
• There was a failure by the mediator to disclose to the parties’ circumstances that raise justifiable doubts as to the mediator’s impartiality or independence The penultimate and last grounds, relating to mediator conduct, align with Articles 5(4), 5(5) and 6(3) of the 2002 Model Law on International Commercial Conciliation.In addition, pursuant to Article 5(2), relief may be refused where it is “contrary to the public policy” of the State in which enforcement is sought or the “subject matter of the dispute is not capable of settlement by mediation under the law of that State”.Unlike the New York Convention (which does not specifically address reservations), the Singapore Convention expressly permits a number of reservations including in relation to whether or not the Convention would apply to the government of signatory state (Article 8).

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