#4671 - International Mediation - BPC Alternative Dispute Resolution

ADR: INTERNATIONAL MEDIATION INTERNATIONAL MEDIATION "International dispute": * Dispute * Involving any subject-matter * Where the parties to the dispute are based in different countries, and * Which may require performance of obligations in different countries. Harmonisation * Disparities in: * Training and accreditation * No common Code of Conduct * Manner and frequency of promotion and use of ADR * UN Commission on International Trade Law (UNCITRAL) - 'Model Law on International Commercial Conciliation' (across international jurisdictions) * Consists of detailed rules covering all aspects of mediation Advantages of Mediation in International Disputes * Parties can choose where mediation takes place (need not be where litigation would be commenced) * Avoid difficult jurisdictional and conflict of law issues * Mediators can assist with communication - language, time-zone issues * Facilitates speedy settlement - international litigation can take a long time * Parties can have a number of (pre)mediation meetings in own countries * Parties can rely on local advisers in relevant country to resolve technical, practical, political or legal issues * Particularly cost-effective compared to litigation or arbitration INTERNATIONAL MEDIATION ORGANISATIONS Organisations providing Mediators * International Mediation Institute (IMI) * non-profit foundation * aim: set his competency standards for worldwide mediation * published guidelines 'Guidelines for Lawyers Representing Clients in Mediation' # assists in selection of mediator(s) with necessary expertise and style * International Mediation and Arbitration Centre Organisations providing Information * Juris International * International Institute for Conflict Prevention and Resolution * World Mediation Forum * Arbitration and Mediation Centre of the World Intellectual Property Organisation * International Mediation Alliance INTERNATIONAL MEDIATION: PREP & PROCESS Preparation * * * * * Selection of mediation team - all need training, expertise, relevant and sufficient Code Management of language and cultural differences Position statement likely to be longer (generally 15-20 pages + indexed bundle) More prep work by mediator Longer mediation Process * Mediator encourage parties to explore issues in joint meetings - extended plenary session * More expert evidence - may be meeting of experts/single expert who parties can Q. * More acute time pressure * Unlikely immediate binding settlement agreement at conclusion - final agreement likely to be subject to reflection, review and consultation * Will require more work by lawyers before parties will sign (and agrmt become binding) * Mediation may be resumed after adjournment with non-binding "heads of agreement" in the interim EU MEDIATION: EFFORTS AT STANDARDISATION Issues * Training and accreditation * No common Code of Conduct * Manner and frequency of promotion and use of ADR Action * Attempted to standardise mediation through * EU Directive on Mediation in Civil and Commercial Matters (Directive 2008/52/EC) * EU Code of Conduct for Mediators EU Code * Approved by the Justice Directorate of the European Commission. * Sets out principles to which individual mediators can voluntarily decide to commit. * CMC has endorsed the code as laying down minimum standards which its members should observe EU MEDIATION DIRECTIVE Objectives Art.1 - The objective of this Directive is to: * facilitate access to alternative dispute resolution and * to promote the amicable settlement of disputes * by encouraging the use of mediation and * by ensuring a balanced relationship between mediation and judicial proceedings. EU MEDIATION DIRECTIVE: "MEDIATION" "Mediation" Art.3 * A structured process, however named or referred to, * whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. * This process may be initiated by the parties of suggested or ordered by a court or