International Mediation Flashcards
What are the advantages of international mediation?
Additional to the normal advantages of mediation are:
- The parties can determine in which country mediation can take place
- It avoids jurisdictional issues and conflicts of law
- A complementary team of mediators can take care of cultural differences
- Can assist with communication problems
- Parties can rely on local advisers in each relevant country to solve issues
- It is particularly cost-effective compared to litigation and arbitration
WHAT SPECIAL PREPARATION IS NEEDED FOR MEDIATION IN INTERNATIONAL DISPUTES
- Parties will need to ensure that the mediators have undergone appropriate training, have sufficient experience and expertise, and they operate under a sufficient Code of Conduct
- Consider how language and cultural differences can be managed
- The position statement is likely to be longer
- More preparatory work in relation to pre-mediation meetings with the parties by telephone or video conference link, or perhaps in person at each party’s business
What is the general process of international mediation?
Similar pattern to normal mediation, except here:
- Takes longer, perhaps several months
- Likely to encourage exploration in joint meetings
- The mediator team will then convene private meetings for ‘shuttle diplomacy’
- Expert evidence is likely to feature to a greater extent (may be a meeting of experts)
- Time pressures because of time zones
- A binding settlement is not likely to be drawn up at the conclusion, as any final agreement is likely to be the subject of reflection, review and consultation
- Mediation may therefore be resumed at a different time
- Common for settlement phase to last several months
What are the issues with international mediation?
Differences in training and accreditation
Lack of a common code of conduct
Differences in the manner and frequency in which ADR is promoted and employed
What are the Directive’s objectives?
- Facilitate access to and promote ADR
- Ensure a balanced relationship between mediation and judicial proceedings
How does the directive define mediation?
A structured process … 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 the mediator.
How does the directive apply?
- Applies in only cross-border disputes, in civil and commercial matters
- The Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions (Art 5(2)), provided the legislation does not prevent them from exercising their right of access to the judicial system
- The Directive is not intended to apply to:
- Pre-contractual negotiations
- Adjudicatory processes
How is a cross-border dispute defined?
A dispute in which at least one of the parties is domiciled/habitually resident in a member state other than that of any other party on the date on which:
- The parties agree to mediate
- Mediation is ordered by the court
- An obligation to use mediation arises under national law or
- The court invites the parties to use mediation
Has the Directive been implemented by the UK?
- It has been implemented in the UK – Part 78
- Only applies to disputes where the mediation was commenced on or after 20 May 2011
How has it been implemented in the UK?
- quality control of mediation through codes of conduct for mediators
- initial and further training of mediators to ensure that mediation is conducted in an effective, impartial and competent way
- the court may invite the parties to use mediation
How can international mediation agreements be enforced?
The parties are able to request that a written agreement is made enforceable by a court, by a judgment or decision or other means, unless the content is contrary to national law
- If proceedings have already been issued, the parties can use a Tomlin/consent order
- If arbitration has already been commenced, can be reflected as an agreed award
- Under Part 78, an application for a Mediation Settlement Enforcement Order (MSEO) can be made under:
- Part 23 (if proceedings have already been issued) or
- Part 8 (if no proceedings have been issued) for a
How can a MSEO be applied for?
Must file the following documents with the application notice/Part 8 Claim form:
- Settlement agreement
- Evidence that the other parties to the agreement explicitly consent to the application for enforcement. This is not necessary if:
- all parties are bringing the application
- the agreement provides for an MSEO
- the other party has already written to the court consenting
- If a foreign currency, the application must have a certificate of the sterling equivalent (due at the close of business on the day before the application)
- With Part 23, a copy of the application notice, settlement agreement and evidence must be served on all parties to the agreement
- The court will usually make a MSEO without a hearing
How is the MSEO enforced?
- In the event of default, the parties can then enforce the MSEO in court
- If there is no MSEO and they don’t record it as an order in existing proceedings, the agreement can be enforced by suing for breach of terms etc.
What is the confidentiality of international mediation?
Mediators shall not be compelled to give evidence in civil/commercial proceedings or arbitration regarding information arising from the mediation, except:
- Where the parties agree otherwise
- Public policy (particularly the protection of children or to prevent physical/psychological harm to any person)
- Disclosure of the agreement is necessary to implement/enforce it
How can disclosure/inspection be sought?
An application is made by Part 23/8, and the mediator must be made respondent to Part 23 or party to Part 8
A party must make apply to the court, providing evidence which establishes one of the Art 7 exceptions, if he wishes to obtain evidence by:
- Witness summons
- XX
- Evidence by deposition
- An order enforcing attendance of a witness
- An order for a deponent’s evidence to be given orally
- An order for the issue of a Letter of Request
