Mediation Essentials #3

It seems to me that many great mediation advocates share the same traits;

They

  1. are good openers – presenting an accessible narrative, not a rehearsal of the pleadings
  2. shine in joint session – by relishing an unscripted case analysis
  3. listen and question (far more than just to rebut)
  4. are brave –  they take positions and make concessions elegantly
  5. are holistic advisers – they recognise all the moving parts necessary for a client’s resolution
  6. do the money well – they are strategic (often positional) bargainers when it comes to the money

David Richbell’s Tour de Force

41uSVELxDKL__SY344_BO1,204,203,200_As I sat opposite David Richbell in an airy Fleet Street coffee shop this week, meeting for the first time, we talked about anything but mediation. Sports mainly – rugby (he already had the World Cup fixtures written in spidery scrawl in his pocket diary), football (patiently explaining the UK transfer system to this NZ imbecile) and boxing (David’s son, Ollie, did a bit of legal work in that most misunderstood of sports).

Eventually, we ended by talking sports and mediation with me attempting to establish my crossover credentials by regaling him with tales of elite sports disputes that I had mediated.

David then fished inside his bag and bought out a bright green, 561 page brick of knowledge complete with CD. This delightful book, with contributions from the great and the good of the Euro mediation scene including four Brick Court mediators, has a poetic vibe to it starting with its three structural parts (really three books within a book); Moulding, Maturing and Mastering, effectively tracking the life stages of a mediator, much as one would a butterfly.

My favourite chapter Trust, Truth, Love and Forgiveness (or rather Greed, Lies, Hatred and Revenge) has nuggets like ‘broken trust is offensive, it is a personal affront and creates a lot of hurt’ and ‘my belief is that if you love, you have to forgive. It is built in… not being able to forgive can blight a life forever’

A particularly brave piece arises out of David’s growing concern that familiarity breeds mediocrity and his uncomfortableness with his own comfort at slipping into the familiar mediation groove.

The chapter From Mastery to Incompetence is an essential read for any seasoned mediator who secretly worries the fire in their belly does not burn as brightly as it once did.

As John Sturrock says, ‘put simply, it is a masterpiece’.

For more information, including a Table of Contents, go here

BIT’s and BAT’s

Rainbow Warrior in Auckland Harbour after bombing by French secret service agents.Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP, was in New Zealand this week as part of his appointment as the Inaugural Senior Visiting Research Fellow at Victoria University Law Faculty’s New Zealand Centre for International Economic Law.

His visit marked the 30 year anniversary of the Rainbow Warrior case that shook a nation (those of us old enough to remember will recall the case of two French secret agents who blew up a Greenpeace ship in Auckland harbour). Mr Born acted as counsel for Greenpeace.

In addition, I was lucky enough to catch Gary speaking on his most recent initiative around a Bilateral Arbitration Treaty Regime, that aims to provide a default arbitration mechanism for the resolution of defined international commercial disputes.

The mechanism (fondly known as a BAT) would utilize the UNCITRAL Arbitration Rules, providing a means of resolving commercial disputes when nationals from contracting states had not agreed upon an alternative means of dispute resolution. Awards would be subject to recognition in the contracting states under the New York Convention and, subject to additional arrangements, in all New York Convention contracting states.

And the connection with mediation?

Bilateral Investment Treaty (BIT) investor-state dispute settlement (ISDS) relies heavily on arbitration and traditionally mediation has not figured. But, there is a feeling that this is changing since the International Bar Association published its Rules for Investor State Mediation in late 2012 – much has been written in the past year or so on whether investor state-mediation really is one of the last great unexplored tracts of the mediation landscape.

Gary’s initiative takes this one step further and all power to him – the challenge for those of us in the international mediation community is to find how the mediation process can be included in these regimes to add value to both BITs and BATs.

More to come on this topic … and special thanks to Dr Petra Butler who was instrumental in Gary’s visit to NZ.

Further information;

A draft Model BAT can be seen here. A commentary on the Model BAT’s provisions can be got from here. Further details about the Model BAT and its rationale can be found in an article here

Clever Thinking Out of Dubai

Dubai, February 2015: DIFC Courts Practice Direction No. 2 of 2015 – parties can now choose to refer their DIFC money judgments for enforcement through the DIFC-LCIA Arbitration Centre, effectively converting their judgement to an arbitral award.

Having done that, the arbitration award should be enforceable in all New York Convention countries thereby avoiding limitations of state court judgments that they are not normally enforceable outside of the home jurisdiction absent the usual and limited reciprocal enforcement mechanisms.

To some extent this mirrors the efforts by some in the mediation community, including the IBA, to find a mechanism to turn a cross border mediated settlement into an arbitral award which would then be enforceable internationally under the New York Convention.

For more, see two short Kluwer articles The Handbrake on Global Mediation and The Race towards a New York Convention for Cross-border Mediated Settlement Agreements: the Fable of the Tortoise and the Hare Revisited?

This lack of any coherent method of enforcement is widely seen as a major impediment to further globalisation of mediation, the argument being how can we expect parties involved in large international commercial disputes to embrace mediation if there is a risk that any outcome might be, to all intents and purposes, unenforceable.

DIFC’s innovative Practice Direction issued in February and subject of much discussion since late 2014, is the first of its kind globally – it offers parties the advantages of both litigation and arbitration since it allows the DIFC-LCIA Arbitration Centre to provide an additional remedy to the judgment creditor if the parties choose to submit any disputes they may have about the payment of money judgments to arbitration under the auspices of the DIFC-LCIA Arbitration Centre. In this way the judgment creditor obtains an arbitral award for their unpaid money judgment that can be enforced in the 150 plus New York Convention countries providing greater enforcement internationally.

As Michael Hwang, Chief Justice of the DIFC Courts, says

 we have developed an important tool to synthesize litigation and arbitration by giving concurrent remedies for enforcement and thereby resolve one of the great problems of international litigation

DIFC Courts Practice Direction No. 2 of 2015 – Referral of Judgment Payment Disputes to Arbitration

DIFC Courts – Chief Justice’s Explanatory Lecture on Referral of Judgment Payment Disputes to Arbitration – November 2014

Mediation in Asia

ADR-in-Asia

Herbert Smith Freehills’ Hong Kong office has launched its first ADR in Asia Guide, with emphasis on mediation in Hong Kong. Through direct interviews captured in the Guide and anonymous voting via a bespoke HSF iPad app at the Guide launch, they have surveyed around 100 international corporates on their use of mediation in Hong Kong.

The full report is a good read and if you want it you will need to make a request to HSF at asia.publications@hsf.com

In the meantime, key findings include;

  1. 43% of users who voted via the iPad app regard cost and time savings as the greatest benefit of mediation, followed by the range of outcomes – some not possible through the courts.
  2. Organisations defer to their external lawyers when it comes to considering mediation, when and how to deploy it, and who to appoint as a mediator. This places considerable responsibility on the legal advisor as a stakeholder to mediation success.
  3. The clients surveyed and those who voted via the iPad app, want a mediator who commands the respect of the parties and has gravitas. 47% of those who voted through the iPad app said they relied on recommendations from contacts in the market and 38% deferred to the advice of their external lawyers.
  4. A number of those surveyed noted that evaluative mediators often added more value as they would robustly test the counterparty’s case. Several found that a purely facilitative mediator was too passive and did not gain the respect of the parties.
  5. 50% of the clients interviewed and 56% of those who voted via the iPad app said the most important aspect of mediation was the mindset of the parties. 18% of those voting via the iPad app said timing was the second most important. An early mediation, forged on too little information, is less likely to succeed. A mediation very late in the day occurs when significant costs (eg of discovery, witness statements, trial preparation) have already been incurred.

HSF comments;

“Our research highlights that, when undertaken meaningfully, and at the optimum time, mediation forces everyone into an earlier appraisal of their case. Those surveyed generally said that around 50% of their mediations settled (which accords broadly with market trends for commercial disputes). Those which failed were very often helpful however – in gaining intelligence, promoting engagement with the case, narrowing the issues, or assessing the approach of the counterparty and their external lawyers”