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22 Sep 2016

UNCITRAL and the enforceability of iMSAs: the debate heats up

By Nadja Alexander & Associates

As the 65th session of the UNCITRAL Working Group II on arbitration and conciliation nears, it seems timely to reflect on the issues likely to be discussed and debated in Vienna this week.

In this post, I focus on the legitimacy of a proposed multilateral convention on the recognition and enforceability of international mediated settlement agreements (iMSAs) outlining some concerns in this regard and constructive responses to them. But first some background for the benefit of the uninitiated.

As many readers will be aware the Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation . (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text.

Previously —more than a decade ago now— the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial.

This is the first in a series of posts — written with Anna Howard and Dorcas Quek— to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. Moreover the notion of a multilateral convention as the instrument of choice has captured the imagination of many and seems to have encouraged the most spirited debate. If enacted it would also have the most direct impact in establishing a uniform approach to this issue.

We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to:
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 such a convention;
4. the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration.

Let me now turn to the first category of concerns, which will be the focus of the rest of this post: legitimacy of a proposed multilateral convention on the recognition and enforceability of iMSAs. It compromises two issues. The first is whether iMSAs should as a matter of principle, be accorded priority or special status vis-à-vis ordinary contracts. The second issue is whether the proposed convention compromises access to justice.

Priority being accorded to iMSAs over contracts?

The concern:
To what extent is it legitimate to grant iMSAs preferential treatment compared to other traditional contracts and unassisted negotiated agreements?

A Response:
Mediation is clearly distinguishable from unassisted negotiation as a matter of practice and of law. It is a definable and recognizable structured dispute resolution process involving an impartial third party who assists parties to:
• communicate with one another
• identify the issues in dispute between them
• explore the terrain of those issues
• generate options for resolution of the dispute
• reach an agreement in respect of the whole of, or part of, the dispute.

Around the world, regulatory regimes differentiate mediation from negotiation and other dispute resolution processes. In many jurisdictions, mediators are subject to ethical requirements, standards and accreditation. Accreditation standards are progressively international in coverage (e.g. IMI mediation certification). Furthermore, mediation is increasingly used in combination with arbitration in hybrid processes such as Singapore’s arb-med-arb.

The growth of mediation as a dispute resolution process with its discrete procedures and standards warrants a creation of a customised cross-border enforcement regime.

Access to justice compromised?

The Concern:
The granting of special status to iMSAs in relation to their recognition and enforceability may compromise fundamental rights associated with access to justice and access to the courts.

A Response:
This concern seems to have echoes of the oft-cited and misinterpreted English case of Halsey v Milton Keynes General NHS Trust. The case has been cited as authority for the principle that for the State to order mediation is a breach of the right to a public trial conferred by Article 6 of the European Convention on Human Rights. As Tony Allen points out, not only is this inaccurate but it has hampered the development of mediation practice and regulation as with each new regulatory initiative, such as UNCITRAL’s current talks, we are repeatedly taken down the rabbit hole of the now infamous Halsey judicial comments. The statements of the Court of Appeal in relation to this point were non-binding opinion or obiter dicta. Moreover, as Allen points out, Lord Dyson, who gave the judgement of the court in Halsey subsequently acknowledged that ordering parties to mediate in and of itself does not infringe their Article 6 rights.

How is this relevant to the current UNCITRAL deliberations? While UNCITRAL’s Working Group II is dealing primarily with the enforceability of iMSAs, it is relevant for two reasons.

1. Recognition and enforceability of agreements to mediate and mediation clauses
The Working Group did consider whether the topic of recognition and enforceability of ‘an agreement to submit a dispute to conciliation’ should also be addressed in the proposed international instrument. The dominant view of Working Group members as reflected in the official reports seems to be that this topic is not needed, especially given the diverse pathways to mediation via mediation clauses, stand-alone agreements and court referrals. These comments do not provide a reason for the exclusion of agreements to mediate in a possible convention or other instrument; rather they suggest that including them might fall into the “too hard” basket. One wonders whether the misinformed legacy of Halsey was also hanging heavily in the UNCITRAL meeting rooms in relation to this point — at least for some members. For others, any type of incentive or requirement to mediate, is considered to be an anathema to the voluntariness of mediation. For some civil law European jurisdictions, this is a matter of a fundamental mediation principle. For example, in Austria the extent to which the law supports the enforceability of mediation and MDR clauses is unclear and academic commentaries are divided on this point. It seems that parties to mediation clauses cannot prima facie enforce such contractual provisions, that is have a court order issued to the other party to require it to attend a mediation meeting.

To my mind such an approach fails to differentiate the different parts of mediation to which voluntariness can attach:
1. turning up at mediation;
2. participating in mediation;
3. reaching an agreement to resolve the dispute in mediation.

While voluntariness seems important for points 2 and 3 above, there are many examples of successful mediation practices and schemes where parties have been effectively required to turn up to mediation as a result of recognition of a mediation clause or a court referral. Even in relation to point 2 (participation in mediation) contractual provisions, institutional and legislative rules increasingly require good faith participation in mediation, a requirement which would seem to set some boundaries for voluntariness in its fullest sense.

In summary, parties do not forfeit their legal rights by entering into the mediation process. A contractual obligation to mediate typically takes the form of a condition precedent to litigation and as such parties do not lose their right to access the courts. In addition numerous statutes and institutional rules, such as Article 13 of the UNCITRAL Model Law on International Commercial Conciliation, expressly recognise that parties may need to initiate legal proceedings while mediation is on foot.

If the objective behind a convention is to promote cross-border mediation, it seems worthwhile to also examine the ways in which parties enter the mediation process, rather than confine the discussion to how parties conclude the mediation process. For instance, Maud Piers from the University of Ghent suggests that the EU might promote better access to justice by adopting uniform rules on the legal status of an ADR clause under which parties consent to try to resolve their dispute through ADR.

2. Recognition and enforceability of iMSAs
The second reason why the legacy of Halsey may be relevant to the current UNCITRAL discussions relates to how Working Group members view Article 6 of the European Convention on Human Rights (ECHR) and similar legal rights instruments. I have heard it argued during many a spirited discussion that a convention recognising and enforcing iMSAs threatens to compromise a party’s fundamental right to access the courts under the ECHR.

How can this be the case? Does this mean that numerous national laws all over the world —including within the EU— that recognise and enforce MSAs are invalid on the basis that they potentially prevent parties accessing their fundamental right of access to justice in the form of a court trial in relation to the original dispute? No, of course not.

MSAs are prima facie enforceable as ordinary contracts. In addition in many countries they can take different legal forms, which offer different levels of enforceability — a practice giving expression to mediation’s flexibility and party autonomy by encouraging choice and flexibility in relation to the legal form of mediated outcomes.

Thus, depending on the jurisdiction, MSAs may take the form of ordinary contracts, settlement deeds, special mediation deeds, consent arbitral awards and/or court orders. In some jurisdictions parties may have different procedural paths to enforceability open to them.

The nature and extent of review available for MSAs depends largely on the legal form and status of the instrument containing the MSA. The grounds for challenging mediated settlements are generally more extensive in relation to standard contracts than settlement forms which involve review and ratification by professional dispute resolution practitioners such as lawyers, notaries, mediators, arbitrators and judges. This type of regulatory policy recognises that parties who seek a mediated outcome with an expedited enforcement mechanism waive the right to challenge the agreement as if it were an ordinary contract. Moreover such settlement forms are typically subject to review before they are ratified and it is arguably at this point that potential problems with, or potential challenges to, the mediated agreement should be addressed. In the absence of statutory provisions requiring a cooling- off period or ratification by a third party, contract law will prima facie recognise and enforce such MSAs.

So back to the current UNCITRAL meetings of Working Group II. A convention to recognise and enforce iMSAs that comply with criteria set out in the convention itself would extend to international MSAs the type of regulatory provisions that already exist for domestic MSAs in many countries. Parties to an iMSA would still be able to challenge an iMSA. The relevant defences available would depend on the legal form of the iMSA and the terms of the convention.

If, as the ECHR concern suggests, parties to an iMSA would be able to litigate the original dispute about which they mediated, there would be no point at all in having a convention. It would mean, for example, that if I have a dispute with my publisher about delivery of a manuscript, and we settle the dispute using mediation, I could later have second thoughts, for no reason other than a whim, and choose to litigate the dispute. This simply goes against mediation practice and regulatory developments around the world. It also makes a farce of party autonomy as a principle that gives parties the freedom to take on contractual obligations with others, provided they do not breach public policy. Now of course if there was an allegation of fraud, misleading and deceptive conduct or another substantive contract defence to challenge the validity and legitimacy of the iMSA, then a convention should provide for the iMSA in question to be challenged in a court of law. Such an approach is in line with best practice.

Finally, it is worth noting that many countries are signatories to the NY Convention on The Recognition and Enforcement of Foreign Arbitral Awards. Accordingly these jurisdictions seem to recognize agreements to arbitrate and arbitral awards, which can only be challenged in court in limited circumstances. While arbitration is a very different process to mediation, I wonder about the reasons for effectively treating mediation less favourably.

So where to from here?

The UNCITRAL Working Group II meeting taking place during these two weeks (12-23 September) will set firm parameters for the negotiations that will inevitably follow over the coming months. Whatever choices are made, it is imperative that they are informed decisions based on solid and accurate arguments. We need something more convincing than the ECHR argument for the purposes of the UNCITRAL discussions, especially given the enormous UN and national resources from participating countries that have poured into this proposal.

The members of UNCITRAL’s Working Group II have a choice to make. Design the type of regulatory regime we want for the enforcement of cross-border mediated outcomes. Or let the current regulatory jungle continue to develop in a piecemal and unmanaged way.

We can take charge of regulation or it can take charge of us. There is no getting away from it for there is no such thing as a regulatory vacuum.

The UNCITRAL discussions offer an an opportunity for those involved to shape the future of our field and make a difference. If we don’t take this chance, it may be a while before it comes around again.

15 Sep 2016

The Regulatory Robustness Rating in Practice: Part 3

By Nadja Alexander & Associates

Yes, here it is. The final part of the Regulatory Robustness Rating (RRR) trilogy. For those of you who are just picking up the RRR topic for the first time, you might like to check out Part 1 andPart 2 first.

Three-gold-stars

You will recall that the aim of the Rating System is to offer an indication of the regulatory robustness of a jurisdiction in relation to cross-border mediation. It is not an indicator of the popularity of mediation or the amount of practice in a jurisdiction. The RRR takes the perspective of mediation users, i.e. what is likely to be important for parties and their legal advisers in assessing the how mediation is regulated in a given country.

In this post, Part 3, I will focus on apply the RRR System with the help of fellow blogger, Sabine Walsh. We will apply the System to Ireland. In other words, we will examine the regulatory robustness of cross-border mediation in Ireland.

You will recall from Part 2, that there are 12 criteria to consider. For each criterion in awarded a star rating of up to five stars. However because not all criteria are equal from a user’s perspective, they are weighted. Each criterion has a weighting of either one, two or three with three indicating that the criterion usually holds greater importance from a user perspective.

Before we get to the actual Regulatory Robustness Rating, let’s start with a few comments about cross-border mediation in Ireland.

Ireland is an excellent example of a jurisdiction where regulation of mediation is having to catch up with practice. A variety of factors including the impact of the economic crisis and a gradual but fundamental change in dispute resolution culture have contributed to the increased use of mediation in a range of different forms of disputes. The courts, in particular, have played a significant role in this development, enthusiastically using what few regulatory powers they have to divert cases into mediation and generally creating an environment conducive to mediation.

These developments have all taken place in the absence of a coherent comprehensive regulatory framework for mediation, or perhaps in the shadow of the promised reforms which have been pending for a number of years now. The RRR highlights the strength of areas such as mediation infrastructure and services, the relationship of the courts with mediation services and the court’s positive attitude to mediation. Regulatory areas desiring high levels of flexibility such as insider-insider confidentiality also score highly on the star scores. However in terms of transparency and clarity of content of mediation laws, we see a different story. The laws on insider-outsider and insider court confidentiality suffer from a lack of certainty and predictability. While the long awaited Mediation Bill, if it is enacted, will certainly increase the regulatory robustness rating of Ireland’s framework, it will be interesting to see whether it has the same impact on boosting the use of mediation as the change in culture, and the tireless efforts of numerous bodies and institutions to raise awareness of mediation have.

The RRR for Ireland is set out in the table below. You will notice that there are four columns. The first column identifies the criterion. The second column describes the application of the criterion in the given jurisdiction. This is a very brief and basic description that enables the RRR to be presented in a tabular form so that readers can benefit from an overview of the jurisdiction’s regulatory framework. The third column shows the star rating (from 1 to 5) and also indicates the weighting given to the criterion. The fourth and final column multiplies the star score and the weighting to come up with the RRR for that criterion. This way readers can see how the various calculations have been made. Should the situation arise where users place particular importance on a certain criterion and less on others, they are able to adjust the weighting to suit their needs and this will give them an ultimate rating that better reflects their needs and interests.

You will note that there is no single final score. There is a good reason for this. If you conducted the RRR analysis with say four countries and gave each an ultimate rating, then less attention would be paid to the individual criteria. Further, the RRR would turn into a competition and countries would be ranked by their overall score only. The RRR is not a competition. It’s a tool for analysis and it’s important to look at the individual criteria and the star scores and weightings allocated to each one. Then if you are still interested in finding out more about that country, you have a framework for doing so, and you know what to look for.

So let’s take a look at Ireland.

RRR

Remember the RRR System offers an indication not a comprehensive analysis. It gives users a helpful starting point for finding and analysing the law applicable to cross-border mediation in any jurisdiction.

For example, if you are a lawyer looking to identify suitable laws for your mediation clause, you might use the RRR System to identify three jurisdictions with high regulatory robustness ratings. The RRR System should not be the only indicator in making an informed choice about the governing law and jurisdiction. But it might provide a starting point for you to do some further research to look more closely at these jurisdictions for the purposes of identifying governing law and jurisdiction for your mediation clause.

29 Aug 2016

Michelin II or the Regulatory Robustness Rating: Part 2

By Nadja Alexander & Associates

What makes good mediation law?

Three-gold-stars

For those of you who have been following the plot, you will recognise this as the second in a series of three posts introducing what is now called the RRR — Regulatory Robustness Rating for mediation jurisdictions. You may also notice the name change. Yes, what originated as the Mediation Friendly Star System has transformed into the Regulatory Robustness Rating. Why? Simply because it’s more accurate. I have amended my previous post to reflect this new language and there is also a more detailed explanation of the reasons to be found there.

Now, to Part 2 of the Triology.

Previously, I introduced the 12 criteria upon which the RRR System is based. Together they form the foundations of the RRR System and inform the ratings given to each jurisdiction. The purpose of this post is to explain the thinking, assumptions and value judgments underpinning each criterion. After all, the rating indicates the extent to which a given jurisdiction offers a robust regulatory regime for cross-border mediation, or not.

Each criterion is given a rating of up to five stars, five being the highest score possible and one being the lowest. In addition, the criteria are weighted according to their importance from a user perspective. The weighting scale is one to three, with the higher number providing a higher weight. So if the ranking of each category is one to five, then a ranking of five:
• on weighting of three would result in 15 points;
• on a weighting of two would result in 10 points;
• on a weighting of one would result in five points.

I have set out the RRR criteria, weightings and underlying principles in tabular form for ease of reference. So when you click on the link below you will get a pdf with the RRR in tabular form.

Regulatory Robustness Rating for Mediation

The next and final post in the RRR triology will deal with how to apply the Regulatory Robustness Rating to any legal jurisdiction. Watch out for this next week.

14 Aug 2016

Regulatory Robustness Rating (RRR): A Michelin Guide to Mediation Regulatory Regimes

By Nadja Alexander & Associates

Previously I posted some musings about a Mediation Friendly Star Rating System. Sort of like a Michelin Guide on the robustness of a jurisdictions regulatory framework in relation to mediation. In this post, I’d like to revisit the topic and take the idea a little further. Before I start, let me say thank you to many colleagues who commented on the earlier ideas especially Sabine Walsh, Martin Svatos, Geoff Sharp and Michael McIlwrath.

Three-gold-stars

So in terms of developing the Rating System, the first thing I have done is change the name from Mediation Friendly Star Rating System to Regulatory Robustness Rating (RRR) for Mediation. While ‘Mediation Friendly’ is a catchy title, it does not accurately capture the purpose of the rating. Apart from the nice alliterative effect of ‘Regulatory Robustness Rating’, the new title more accurately reflects what the rating is about.

As the title suggests, the RRR focuses on regulatory criteria to determine the robustness of a jurisdictions regulatory framework in relation to cross-border mediation.

Certainly, there will be other non-regulatory factors — inter alia economic, behavioural psychological, cultural, policy and so on — that will influence the choice of law and jurisdiction for mediation. The RRR does not deal with these.

In essence the RRR offers a way to:
• analyse the quality and robustness of a jurisdiction’s legal framework for cross-border mediation;
• factor such an analysis into choices about governing law in mediation clauses and other agreements;
• inform law and policy making in relation to cross-border mediation.

The RRR aims to support legal advisers and other users of mediation to make informed choices about the type of regulatory frameworks that support best practice mediation and where to find them. In addition, the RRR can be used as a design guide for law and policy makers seeking to improve the regulatory attractiveness of their jurisdiction in relation to mediation. To this end the RRR is based on a set of assumptions about what makes good mediation law and what makes a jurisdiction attractive for mediation purposes in terms of its regulatory framework.

In the RRR, the term “law” is understood broadly to encompass diverse regulatory forms beyond legislation. It extends to soft law options and private contracting (for example, agreements to mediate and mediation clauses) and industry norms (for example, codes of conduct, practice standards, and accreditation standards). This broad understanding of law is consistent with contemporary regulatory theory, which has shifted its focus from government rule-making to the context of institutions and interest groups. Moreover, it is also consistent with the EU Directive, which envisages compliance by EU member states through a wide range of regulatory forms.

The 12 criteria upon which the RRR System is based are set out below. Together they form the foundations of the RRR and inform the ratings given to each jurisdiction.

For each criteria a rating of up to five stars may be given with five being the highest score possible and one being the lowest. In addition, the criteria are weighted according to their importance from a user perspective. If this sounds too complicated, don’t worry for now. Let me set out the 12 criteria for the Regulatory Robustness Rating in this posting (you will they have undergone further refinement since my initial post) and follow up with a more detailed explanation and some examples during the next few weeks.

Here they are.

Criterion 1: Congruence of domestic and international legal frameworks

Criterion 2: Transparency and clarity of content of mediation laws in relation to:
i. how mediation is triggered;
ii. the internal process of mediation;
iii. standards and qualifications for mediators;
iv. rights and obligations of participants in mediation

Criterion 3: Mediation infrastructure and services: quality and access

Criterion 4: Access to internationally recognised and skilled local and foreign mediators

Criterion 5: Enforceability of mediation and MDR (multi-tiered dispute resolution) clauses

Criterion 6: Certain, predictable regulation of:
i. insider/outsider confidentiality with some flexibility
ii. insider/court confidentiality

Criterion 7: Responsive informed self-regulation of insider/insider confidentiality

Criterion 8: . Enforceability of MSAs (mediated settlement agreements) and iMSAs (international mediated settlement agreements)

Criterion 9: Impact of commencement of mediation on litigation limitation periods

Criterion 10: Relationship of the courts to mediation

Criterion 11: Regulatory incentives for legal advisers to engage in mediation

Criterion 12: Attitude of courts to mediation (based on case law/jurisprudence).

So there you go. And just to ensure that you are not bored during the summer month of August, next week I will follow up with some of the assumptions underlying the criteria and the different weightings given to each. Yes, I bet you can’t wait :)

31 Jul 2016

Michelin guide assessing Mediation Friendliness in EU states

By Nadja Alexander & Associates

Michelin guide to mediation is from the new book written by Nadja Alexander and Sabine Walsh, which provides guidance on the Mediation Friendliness of each of the EU jurisdictions. It is the first of its kind to compare and contrast the mediation law and regulatory framework in each state, and offers insight for cross-border practitioners and mediation users seeking the best jurisdiction to conduct their mediation.

For more information, please click here.

19 Jul 2016

Brexit and EU mediation —Kluwer Mediation Blog

By Nadja Alexander & Associates

BREXIT

In the aftermath of the Brexit vote and the appointment of Theresa May as England’s Prime Minister, there are many things to think about and there will be much to negotiate. While some commentators anticipate a U-turn on Brexit, Theresa May has made it clear that “Brexit means Brexit” – whatever that means.

In this post, I want to pay attention to cross-border mediation within the EU and, in particular, the impact Brexit may have on how London is perceived as a venue for cross-border mediation within the EU.

Currently within the EU, there are a number of mechanisms available to support cross-border mediation and the recognition and enforcement of cross-border mediated settlement agreements. These include mechanisms related to the EU Directive on Mediation in Civil and Commercial Matters , the Rome I Regulation and the Brussels 1 Regulation.

Like other member states, England has complied with the EU Directive (see the The Cross-Border Mediation (EU Directive) Regulations 2011, SI 2011/1133). It is unlikely that it would repeal these Regulations in the event of a Brexit. This is good thing in terms of certainty and clarity in relation to English cross-border mediation law. However, the Regulations deal only with enforceability, protection of mediators from giving “mediation” evidence in court, and the impact of mediation on litigation limitation periods. Other aspects of cross-border mediation law such as parties’ rights and obligations in relation to confidentiality and privilege remain in the general principles of the common law. And, of course, common law principles can sometimes operate quite differently from civil law principles. This is where choice of court and choice of law become really important. Given the potentially significant difference among civil law codes and the common law, disputing parties want to be sure:
– that they have expressly identified the laws and jurisdictions applicable to any dispute between them; and that
– in the event that they have not been clear in relation to the above, that they know which rules will be used to determine the applicable law and jurisdiction for their case.

In short therefore, where parties clearly state in writing the law (or laws) they want to govern their dispute and identify their jurisdiction of choice, then all is well. However where the choice of jurisdiction and law are not clear, there are rules to determine the relevant court and the governing laws. Within the EU there are two main Regulations that aim to achieve a harmonised set of rules for EU member states in this regard: the Rome I and Brussels I Regulations.

And so I now turn to the operation of these two Regulations and the possible implications for English mediation in a post Brexit world.

The Rome I Regulation aims to create a harmonised, if not a unified, choice of law system in contracts within the EU. In the context of cross-border mediation, there are three types of contract in mediation settings:
– An agreement between the parties to engage in mediation: this may take the form of a mediation clause in a commercial contract or a separate agreement between the parties.
– An agreement between the mediator(s) and the conflicting parties referred to as a mediation agreement, which regulates the rights and obligations of the signatories in relation to the mediation process.
– A mediated settlement agreement between the parties, which contains the terms of settlement of their dispute.

In absence of the parties making a clear selection of law to govern their dispute and the mediation process itself, Rome I establishes various rules to determine the applicable law. In this way it aims to provide a degree of certainty for those embarking on cross-border mediation within the EU. This is particularly important with respect to the English common law system, which can contain quite different legal constructs from civil law jurisdictions. For example, the legal construct of “without prejudice” privilege is not found in civil law EU jurisdictions. If England really does leave the EU, it will fall outside the unifying reach of Rome I. Unless it negotiates its way in again through new arrangements, this situation will create significant uncertainty in relation to how the applicable law will be determined. England will go back to its own general choice-of-law rules (rather than Rome I) to determine which laws will apply in relation to the dispute including rights and obligations associated with mediating the dispute.

Then there is the Brussels I Regulation. The Brussels I Regulation deals with court jurisdiction and judgment recognition issues in virtually all civil and commercial matters within the EU. In other words it is about choice of court, whereas Rome I is about choice of law. It aims to harmonise the rules on jurisdiction and prevent parallel litigation. Generally this Regulation is likely to play an increasing role in the development of European mediation law to the extent that:
– Courts make decisions about the recognition and enforcement of mediation clauses, agreements to mediate and mediated settlement agreements in their various contractual forms;
– Mediated settlement agreements take the form of a court order, court consent award or judgment; and
– Courts make decisions about other aspects of mediation such as confidentiality and admissibility of mediation evidence.

In addition, there are specific provisions in relation to cross-border mediated settlement agreements involving a pecuniary claims. This type of mediated settlement agreement can be made enforceable in the State of origin and subsequently enforced in another Member State by virtue of Article 24 or 25 of the Regulation No 805/2004. If it involves the delivery of specific assets it can be declared enforceable in another Member State according to Article 58 of the Brussels I Regulation.

At the same time, all eyes are now looking beyond the EU at UNCITRAL as its Working Group II (Arbitration and Conciliation) focuses its efforts on enforceability of cross-border mediated settlement agreements and a potential multi-lateral convention along the lines of the highly successful New York Convention in relation to foreign arbitral awards. However until such a convention is finalised and implemented (which could take a while), Brussels I remains relevant to Europe and its benefits will not extend to a brexited Britain.

If and when Brexit occurs these mechanisms will be not be available in relation to enforcement in the UK. This means lack of uniformity and more uncertainty for disputing parties and their lawyers. Given that mediation clauses written today focus on managing disputes in the future, a quiet nervousness has already set in.

04 Feb 2016

A Turning Point for the Mediation Profession – or a Slippery Slope? – Kluwer Mediation Blog

By Nadja Alexander & Associates

Last week I spent some time with a European mediation organisation looking to review its mediator accreditation and practice standards. Somehow I expected a discussion about various accreditation initiatives around the world with perhaps some exploration of “mediation models” and how they fit into national regulatory frameworks.

I was pleasantly surprised. What ensued was a passionate and deep exploration of some of the very real issues facing our field. Here are some of the questions we grappled with:
1. What mediators actually do and what they think or say they do. We know that self-reporting is not always reliable, so why should it be any different with mediators? Reporting on research Lorig Charkoudian concludes: “It is possible that when mediators are asked to self-report their strategies they report those that they think they use or think they should be using, but are simply unaware of their actual behavior.”
2. Who gets to say what mediation is and what it is not. As John Sturrock asks, “who owns mediation?” Is it a question for national regulation or is it up to the parties?
3. Picking up further on John’s previous post, if mediation is, as Ken Kressel suggests, “highly context dependent”, then to what extent do we (and other stakeholders such as users) desire professional parameters for mediators? And how could we go about setting such parameters?

We seem to be at a turning point for the mediation profession. These are questions that affect all practitioners, and users for that matter. And the good news is, that we can still weigh into the conversation.

After many years of positional posturing about the facilitative—evaluative dichotomy and whether we need mediator accreditation standards at all, there seems to be:
1. a growing acceptance of the need for mediation standards and a healthy debate about what they should be;
2. an emerging recognition that we need to move beyond the facilitative—evaluative distinction; and
3. a subtle yet significant shift in the global mediation discourse towards an increasing, albeit tentative, acceptance of a variety of models of mediation practice.

Let’s focus for a minute on the third point: diversity. It sounds progressive and even politically correct. It also reflects the reality of mediation practice — in both domestic and cross-border settings.

But how meaningful is this diversity? How does it bring us further as a professional field? How is a mediator to define his or her practice? How is a user to know which mediation approach is better for them? Is it really progressive or the beginning of a very slippery slope where anything goes?

In mediation, the quality of the process is very much linked to the quality and skills of the practitioner. This is where the business of formal credentialing or accreditation of mediators comes into play. Mediator accreditation is concerned with who is judged to be competent to mediate and who is not. Accreditation issues reflect the diversity–consistency tension, that is the tension between, on one hand, the motivation to encourage diversity in practice through flexibility and innovation in credentialing matters and, on the other, to establish consistent and reliable measures of quality in mediator competence and practice through regulation. It is a highly controversial topic in the politics of mediation, and the central theme of the debate focuses on the extent to which uniform standards are required and what they should be.

It is about shaping the meaning of mediation and deciding which practices fall within the definition of mediation and which fall outside it. It is about deciding who gets to be in the mediation club and who does not.

This heightened interest in mediation diversity seems to throw up a whole lot of questions that some mediation boards, bodies and organisations, especially those endorsing one specific model, had hoped they had just put to bed. There is, however no time for sleeping now. We must keep watch and keep talking with one another. There is an ongoing need to review and revise accreditation and practice standards in a way that is both responsive and responsible. Yes, if you thought it was all over, I’m afraid it may be time for a new committee☺

Frivolity aside, with a greater acceptance of diversity come new challenges. One is this: the need for a real relationship between mediation standards and their corresponding practices. How can we design standards to reflect a broader and deeper range of practice?

As a starting point, let’s look to the notion of clarity of purpose in mediation. Joe Folger explains that “no tool is ever free from the purpose to which it is put” and provides numerous examples to illustrate his point such as the various purposes for which active listening, caucus and other mediator interventions can be used. So, what is the underlying purpose behind mediation practice? Of course, the answer varies among mediators, users, institutions, models of practice and cultures. So let’s start with you. What is your purpose in mediation? Whether you are a mediator, professional representative or party user, you will have a purpose. What is your goal in participating in mediation? What do you hope to achieve in the process?

Mediation community members and institutions need to deeply and collectively reflect on why they do what they do and what values and assumptions they bring to the mediation table. No mediator is completely neutral in the sense that he/she is free of assumptions, and personal and professional values. Where mediation values are not made explicit in codes of conduct, accreditation standards or other norms, then the way mediation is likely to be practised will be a reflection of the implicit worldviews and personal beliefs and assumptions of mediators themselves. So if you describe yourself as a facilitative mediator, what does that mean in terms of the purpose of, and the values that underpin, the facilitative model?

Greater diversity in “accredited” mediation models will likely characterise the next wave of development in the professionalisation of mediation and mediators. Institutions such as the International Mediation Institute (IMI) are leading the way in this regard. IMI’s world-wide mediator certification scheme expressly recognises that mediators approach their craft in different ways and may be informed by different goals, values and assumptions in a variety of cultural settings. As professional training and education in mediation develops in sophistication, so too will offerings that challenge the standard Western facilitative dogma. So before you click out of this post, ask yourself:
1. Are you clear about the purpose of every mediation you do?
2. Are you able to articulate the values that inform your practice?
3. Where you find yourself in a tricky situation in a mediation where you are required to make a judgement call, are you able to explain your choice of intervention according the values you have previously articulated?

If you are unclear or unsure in any of your responses, it’s probably time for reflection and discussion with colleagues. In fact, this would be a terrific conversation to have with mediators, mediation advocates, referrers and users at Singapore’s inaugural Global Pound Conference in March this year.

You see, if we want to embrace diversity in mediation practice, we must be prepared to be accountable for it. It is time to ask ourselves hard questions about the theories behind our practices. We owe it not just to ourselves and the quality of our practice; we owe it to our clients and to the future of the mediation profession.

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