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This Week In Mediation – Episode 10

In the Mediation News this week we take a look at development in Asia as Singapore passes it’s long anticipated Mediation Act. It’s no secret that Singapore is fast becoming a hub for mediation in Asia. The number of new cases filed for mediation at the Singapore Mediation Centre last years was at an all time high – so things are definitely moving along in that region.

We also saw Goa in India host it’s first International Dispute Resolution competition just last month with a mediator from the National University of Singapore taking the spoils.

In this 10th Episode of This Week In Mediation we examine a recent decision from the U.S. Second Circuit Court of Appeals on mediation confidentiality. Staying in the U.S. we look briefly through the lens of truth at the differing perspectives of the presidential inauguration and wrap things up with an important question for our audience.

All this and more from the Mediation news room in London.

Please click here to watch the show.

This Week In Mediation – Episode 9

In this week’s episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies we look at the 7 biggest global trends in Mediation coming up in 2017.

It’s Family Mediation Week in the UK this week so we have a number of stories that follow the theme of family mediation but not all in the UK. We also have a special guest on the show this week; Philippa Johnson is an experienced family mediator and also vice-chair of the Family Mediators Association. We hear from Philippa about the special focus this year on the child in family mediation.

We bounce across to Singapore and staying on the theme of family and divorce mediation we look at some disruptive technology emerging in the US in the form of the Centre for Out of Court Divorce.

All this and more from the Mediation news room in London.

Please click here to watch the show.

This Week In Mediation – Episode 8

In this week’s special Christmas episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies we look at the 5 biggest global trends in mediation during 2016.

We also have a special guest on the show this week; Professor Michelle LeBaron is an expert in conflict resolution from the University of British Columbia in Vancouver. Michelle recently hosted a mediation gathering in Dublin which looked at conflicts with religious dimensions.

We then head across the pond and consider an innovative mediation initiative in the context of US tax disputes, where the IRS has given the go ahead for a fast-track mediation service.

All this and more from the Mediation news room in London.

Please click here to watch the show.

This Week In Mediation – Episode 6


In this week’s video episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we report from the 6th Paris biennial on negotiation. We debate the future of the opening session and joint sessions and we look at a new form of mediation sweeping the globe. All this and much more in this the mediation news this week.

Please click here to watch the show.


This Week In Mediation – Episode 5


In this week’s video episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we report from the Kremlin where the Justice, Mediation and Social Justice Conference is taking place. We hear directly from Professor Tsisana Shamlikashvili, organiser of the conference, as she describes the drivers for the conference and reflects on the highlights. We also here directly from Mr Vladimir Pligin former legislator and Chairman of the Constitutional Committee of the State Duma of the Russian Federation was instrumental in the passing of the mediation law in Russia. Staying in that region we hear about proposed legislative amendments to simplify mediation and arbitration procedures in the Ukraine.

We then move to the land of clogs and windmills and examine some regulatory activity taking place in the Netherlands which have been met with mixed reactions.

We then travel further West across the pond to hear about president-elect Trump’s ambitions to broker peace between India and Pakistan over the Kashmir dispute but not before he sits on the other side of the mediation table as a party in one of his many disputes.

For our final piece of mediation news we here about a heart-warming project called Roma Health Mediation that helps a disenfrachised segment of Bulgarian society engage productively in dialogue with a real impact on health and well being of members of the Roma community in that region.

Please click here to watch the show.

This Week In Mediation – Episode 4


In this week’s episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn about Bundesverband Mediation – the National Mediation Association of Germany and highlights from their annual congress in Dresden. We look at new and emerging mediation models. The conference also focused on the role of mediation in relation to political themes such as migration and integration. One interesting initiative that is proving to be very successful involves enrolling members of the migrant community on a one and  half year mediation training programme. Discover why it’s such a successful initiative and how they increase engagement in the mediation process.

For our final piece of mediation news we travel across the pond to analyse a decision from the Appeal Court of Massachusetts which held that mediation remains confidential even if the parties have been up to all sorts of shenanigans! All this and more coming up in the show.

Please click here to watch the show.

This Week In Mediation – Episode 3


In this week’s episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn about the latest innovation from the world of ODR and whether this technology could in any way be used to help mediate emotionally charged disputes.

We talk to professor Noam Ebner of Creighton University who tells us all about Cyberweek and the events taking place on the web.

We learn about the proposed use of mediation to bridge secular/religious divides in Malaysia.

We look at 7 major gaps in international mediation research.

All this and more coming up in the show.

Please click here to watch the show.

This Week In Mediation – Episode 2


In this week’s episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn how the Global Pound Conference (GPC) is sweeping through the world gathering up the views of stakeholders right across the ADR community.

We talk to the chair of the GPC, Michael Macilwrath to understand the aims of the GPC series and what we can expect to learn from this mega research project.

We take a look at the world of Medical Mediation and also a recent case from the Court of Appeal that is highly relevant to the issue of confidentiality in mediation.

We then take a trip down under and explore the world of Aussie rules football and trade mediation, rounding things off with a feel-good story of mediation at the breakfast table and of course our big question of the week to you, our audience.

All this and more coming up in the show.

Please click here to watch the show

This Week In Mediation – Episode 1


A new Mediation broadcast, presented by Professor Nadja Alexander and Aled Davies, has been launched by Mediator Academy airing on every Monday.

In the first broadcast of This Week In Mediation, we look at a round up of events that took place during Mediation Awareness Week in the UK and Ireland. We talk to the President of the MII to get the inside track on the draft Mediation Bill as well as the new German Mediation Accreditation Regulation.

Also on the show we examine a case from the Indian High Court on whether criminal cases are suitable for mediation. As the conflict in Syria continues to escalate we look at the role of mediation and negotiation in reaching peace agreements and what mediators can learn from these processes to improve their own mediation practice. All this and more coming up in this week’s show.

Please click here to watch the show.

UNCITRAL and the enforceability of iMSAs: the debate heats up – Part 2

The 65th session of the UNCITRAL Working Group II on arbitration and conciliation in Vienna has commenced. Many mediators have been keenly monitoring the Working Group’s deliberations and discussions concerning the enforcement of international commercial settlement agreements resulting from conciliations (iMSAs).

An unresolved but crucial question is the exact form that the final instrument should take. One option is a multilateral convention, analogous to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards for arbitral awards (New York Convention). Dispute resolution practitioners are rather divided on this move. The tendency, as in all conflicts, has been to be positional on either view on this matter.

Yet, all mediators will be aware of the need to dig deeper to understand the concerns underlying the debate. In this four-part series of posts – jointly written with Nadja Alexander and Anna Howard – we seek to crystallise the key concerns about the move towards a multilateral convention. We have grouped the concerns under four clusters:

1. the legitimacy of such a convention;
2. the impact of such a convention on the objectives of, and values underpinning, the mediation process;
3. the justifications for a convention; and
4. the application of an arbitration enforcement framework to iMSAs, particularly in light of recent trends in arbitration.

In this second post, we now focus on the impact of a convention on the objectives of mediation, a subject which will undoubtedly be close to many mediators’ hearts.

A convention which is meant to support the use of mediation ought to be consistent with the nature, underlying values and objectives of the mediation process. But challenges inevitably arise because of the confidential, consensual, flexible and informal nature of mediation, as well as its strong philosophical underpinnings of party autonomy and mediator neutrality. Can such a unique process ever be subject to strict rules of enforcement without losing its essential qualities? This is probably the most fundamental question that the Working Group and other dispute resolution practitioners have to address in order to arrive at a satisfactory outcome. Let us unpack the issue further.

(A) Concerns about mediation confidentiality

Confidentiality can be said to be a hallmark of the mediation process, one which distinguishes it from adjudicatory dispute resolution processes. Mediation confidentiality provides a safe space for disputants to candidly share their thoughts, with the assurance that all their discussions will be shielded from public scrutiny. Confidentiality is one of the key characteristics of mediation that makes it an attractive dispute resolution process.

A convention to enforce iMSAs is likely to introduce enforcement mechanisms, together with grounds to challenge enforcement. Once these grounds are raised, the mediation process will inevitably be scrutinised by the courts, resulting in an erosion of confidentiality.

The Working Group in its latest note for the current meeting acknowledged that disclosure during the enforcement process may be at odds with the confidential nature of the mediation process. For instance, one of the defences to enforcement in the proposed draft provision 8(e) states: “The conciliator failed to maintain fair treatment of the parties, or did not disclose circumstances likely to give rise to justifiable doubts as to its impartiality or independence.” An argument premised on this defence will certainly entail the disclosure of communications made during the mediation.

Nevertheless, this tension between enforcement and mediation confidentiality is not new. Many countries’ domestic jurisprudence have wrestled with these clashing needs and sought to strike a balance. Mediation confidentiality has never been upheld absolutely; various jurisdictions have carefully calibrated exceptions to mediation confidentiality.

For example, the UK common law allows for admissibility of “without prejudice” communications to determine whether a settlement was reached (for the purpose of enforcing the settlement), or to show that an apparent agreement should be set aside on the ground of misrepresentation, fraud or undue influence (Unilever Plc v The Procter & Gamble Co.  [2000] 1 WLR 2536). “Without prejudice” communications are generally understood to refer to discussions between parties aimed at negotiating a resolution to their conflict, and include communications made in a mediation setting. Section 4 of the USA Uniform Mediation Act  also contains a balancing test for the court to decide if the need for the evidence in advancing a defence substantially outweighs the interest in protecting mediation confidentiality.

The challenge in balancing these opposing needs lies in ensuring that mediation confidentiality is not undermined greatly in a wide range of situations. Drawing from some of these approaches, the Working Group could perhaps frame the defences to enforcements narrowly and allow exceptions to mediation confidentiality in very limited circumstances.

(B) Concerns about self-determination, mediator neutrality and “fairness”

Party autonomy and mediator neutrality are two other tenets of the mediation process. The final outcome within a mediation hinges on the disputants’ joint decision, and not the mediator’s determination of the underlying issues. The disputants decide on whether to settle, and how to settle. Party autonomy or self-determination is one of the significant philosophical underpinnings of the mediation process. Mediator neutrality – a related concept – means that the mediator should remain impartial throughout the mediation and not side with any one disputant. Because the mediator respects the parties’ autonomy, he or she refrains from imposing personal views on them, as long as they have freely consented to the outcome.

Because mediation is a consensual process, the concept of “fairness” has been generally understood to be vastly different from “fairness” in an adjudicative process. Some commentators have pointed out, in this regard, that procedural fairness in mediation is associated with the parties’ perceptions on whether they were treated fairly by the mediator, rather than procedural rules. Similarly, the substantive fairness of a mediated settlement is linked to the disputants’ views on whether the mediation outcome met all their concerns, instead of being determined by existing law.

We can see how difficulties will abound once we apply the adjudicative meaning of “fairness” within the New York Convention to mediation. Such an understanding of fairness is simply incongruous with the mediation process. Art. V of the New York Convention  allows for a review of the arbitral award based on the lack of due process or procedural fairness. Likewise, Art V (1)(b) contains a due process defence of the party being unable to present his case. Is such a defence applicable to mediation, which is not premised on the adversarial process of presenting arguments and obtaining a decision? This is yet another defence in the New York Convention that sits awkwardly with the mediation process.

It is evident that the New York Convention cannot be easily transposed to the mediation context (and we will elaborate more on this in our fourth and final post). At a fundamental level, we may have to question whether “fairness” and “due process” are suitable concepts for the mediation process, or whether they have to be replaced with more appropriate standards. And if the concept of procedural fairness is to be used as a defence to enforcement of iMSAs, we have to articulate what this concept entails in a mediation setting. Several commentators, who have provided guidance on determining procedural fairness within mediation, have been careful to steer clear from notions associated with adjudication. As an illustration, researchers have referred to standards such as the opportunity to express one’s views and even-handedness in the mediator’s dealing with the parties.

(C) Concerns about creativity and flexibility within the mediation process

Mediation, being an informal and interest-based approach, can often bring about creative and future-oriented solutions, such as an apology or the fulfilment of a future condition. It has been noted that such solutions may not necessarily be “legally” enforceable as court orders or arbitral awards. How can a multilateral instrument accommodate the creative outcomes of mediation?

If enforcement is only allowed in very limited circumstances, disputants may craft their iMSAs narrowly to suit these restrictions. Some commentators have warned that iMSAs will then be deprived of the depth and creativity that could have been possible absent the convention. The convention may end up stifling, instead of accommodating, the creativity that is inherent in the mediation process.

The flexible nature of mediation is also at risk of being undermined. Many common law jurisdictions have been reluctant to regulate aspects of mediation, probably because of the belief that mediation as a flexible and informal process is not amenable to excessive regulation. Indeed, as observed by Nadja Alexander in International and Comparative Mediation (Kluwer Law International, 2009)  “an enforceability regime could reproduce the very legalities which parties have eschewed in the mediation.” Too many rules about what kind of mediation is enforceable and defences to enforcement may well frustrate the malleable nature of mediation.

It appears that these issues have not been fully resolved at the Working Group level. In an earlier2015 meeting, these concerns were alluded to in the following two passages:

(i) “It was said that the type of obligations stipulated in a settlement agreement might be broad. Elements of complexities pertaining to settlement agreements were mentioned, such as reciprocal obligations, or conditions for the implementation of obligations that would render enforcement more complex. It was also stated that settlement agreements usually contained dispute settlement clauses to resolve disputes arising from the agreement.” (para 34)

(ii) “It was mentioned that the introduction of an enforcement mechanism for settlement agreements could blur the distinction that currently existed between arbitration and conciliation by adding more formal requirements to conciliation.” (para 30)

The existing legal challenges in enforcing unusual iMSAs may well be an issue that cannot be resolved at this juncture. Even the current domestic laws are unable to accommodate enforcement of unusual MSA terms such as an apology. Disputants have already been crafting their settlement agreements to suit the present legal challenges relating to enforcement. Member states are unlikely to agree to create new enforcement methods that their own domestic laws do not provide for.

Nonetheless, the difficulty may not necessarily be as insurmountable as it seems. Mediators would be familiar with research showing high compliance rates for iMSAs, probably because of the parties voluntarily crafting and agreeing to the terms of settlement. In my personal experience as a mediator, the disputants arrived at creative and novel settlements usually when there is a high degree of trust and confidence in each other’s commitment to compliance. In such circumstances, breaches of the unconventional terms of settlement seldom arises after the mediation. Is this the same situation for international iMSAs, and can it be concluded that there is no pressing need to create specific enforcement mechanisms for creative iMSAs? This is where more detailed empirical research may inform and assist the Working Group.

We have highlighted but a few potential effects of a multilateral convention on the mediation process, in the hope of conveying the importance of maintaining the essence of the mediation process. Difficult but significant questions have to be explored concerning the nature of mediation, the current enforcement processes and how enforcement can be tailored to fit the exact contours of the mediation process. The UNCITRAL Working Group has no easy task of facilitating these discussions and mediating between the opposing perspectives. But we trust that such conversations on the deep-seated concerns underlying the debate will eventually bear fruit and result in workable solutions for all.