Starting in early January I’ll be doing my regular stints at McGeorge Law School out in Sacramento, and online with Dominican’s Dispute Resolution program. In both cases I’ll be teaching ODR (online dispute resolution) classes – for McGeorge focused on the courts and access to justice, and for Dominican focused on mediation and dispute resolution online skills.
NCTDR will sponsor CyberWeek 2019, a free, online conference running from Monday, November 18, through Friday, November 22. On Friday, at 11am, Eastern US time, Jeff Aresty and I will host a session on Business Models for Fairness and Freedom, and at noon Eastern US time, Ana Goncalves and I will host a discussion about the Singapore Convention on Mediation. CyberWeek registration, schedules, links, etc., can be found at http://odr.info/cyberweek2019/
The following note will probably appear soon on the Mediate.com home page.
As Alberto Elisavetsky and Maria Victoria Marun noted in a November 4, 2019, posting in Mediate.com, on August 6, 2019, the Singapore Convention on Mediation was announced. The Singapore Convention parallels the New York Convention for Arbitration by legitimizing mediation as a dispute resolution method for international commercial transactions.
Alberto and Maria Victoria make the argument that there is a need for interdisciplinary training and practice for mediators who work in international venues – a sentiment I heartily endorse. And , the Singapore Convention , on its surface, seems to address the twin barriers to the use of mediation in international agreements: uncertainty about the process, and enforceability. But we shouldn’t get too carried away with assumptions about how revolutionary the Convention will be just yet.
There are problems with the Convention’s approach to uncertainty and enforceability.
The text of the Convention addresses both issues in Article 5, addressing the enforceability of mediation settlements by referring to the application of “mediation standards.” The immediate problem is that the Convention does not define any standards.
The lack of standards for mediation across cultures and national borders has led to a kaleidoscopic landscape of mediation styles and norms, which in turn creates the uncertainty mentioned above. Unlike legal or arbitral proceedings, mediation practice can vary greatly based on nationality, legal setting, culture, or mediator preference. As Manon Schonewille and Jeremy Lack argue:
It is difficult to extract any clear standards of processes for mediation when two parties come from different jurisdictions, especially when the expectations, styles and approaches to mediation vary greatly from country to country.[1]
Both expectation and enforcement rely on these undefined standards. The Convention addresses enforceability by declaring that mediation agreements can be set aside by judges in the event that
. . . there was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement.[2]
So, we would look for a serious breach of mediator standards as a reason for setting aside a mediation settlement, but the question remains, “a serious breach of what standards?”
It is possible that guidance from sources outside the Convention can be helpful, but again we should not get our hopes up prematurely.
For example, the UN rules on conciliation are not helpful. The rules state that:
The conciliator may conduct the conciliation proceedings in such a manner as he [or, we would hope, she] considers appropriate . . . .[3]
Further guidance from the UN rules states that:
The conciliator will be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.[4]
Objectivity, fairness, and justice are all concepts that can be interpreted radically differently depending upon the cultural and legal venue from which one views them.
So, is the Singapore Convention useless? Of course not, but it is flawed. Ana, Francois, and I have begun work on a proposal to produce an addendum to the Convention that would begin to address both process expectations and enforceability.
As they
say, “watch this space.”
[1] Mediation in the European Union and Abroad: 60 States Divided by a Common Word? Chapter 2 by Manon Schonewille1 and Jeremy Lack in: The Variegated Landscape of Mediation. A Comparative Study of Mediation Regulation and Practices in Europe and the World, Manon Schonewille and Dr Fred Schonewille (eds.), 2014 The Hague: Eleven International Publishing.
[2] United Nations Convention on International Settlement Agreements Resulting from Mediation, Article 5 (e).
[3] UNCITRAL Conciliation Rules, Article 7 (3).
[4] UNCITRAL Conciliation Rules, Article 7 (2).
At the ODR Forum I got my comp copy of the first online dispute resolution book published originally in Spanish, written/edited by my colleague, Alberto Elisavetsky. He kindly included a brief statement about the future from me as part of an “ask the experts” section.
The InternetBar.Org, an organization with which I have been associated for many years, has just been named the winner of the World Legal Summit Global Impact Award. In the words of the WLS:
This award was created to acknowledge the work of the organizations that participated in the September Development Sprint. The organization that was selected emulated the core mandate of the World Legal Summit (WLS): progressing the global and legal sustainability of emerging technologies. They also are an organization geared toward making impact in a problem area that is global reaching and of great social concern.
Again, in WLS’s words the award was given to our project, Validata:
This project is about making ‘the Invisibles’ visible, through the creation of legal digital identities for stateless refugees utilizing blockchain technology and a self sovereign identity system. According to data collected by The UN Refugee Agency, there are approximately ten million “stateless”, people without personal identification, who have been denied a nationality and access to basic rights such as education, healthcare, employment and freedom of movement. This is ten million refugees around the world who could benefit from the Invisibles project and gain access to basic services, education and employment.
We at IBO began working on the Invisibles project almost three years ago, first with Rohingya refugees in Bangladesh, then in other places around the world. Currently Scott Cooper and I are presenting a world-wide standards proposal to the International Standards Organization that could lead to recreation of lost identities for millions of displaced persons.
The presentations from the sessions in Nashville last week are now online. To see them go to the URL below. My presentation starts at 1:20.
https://web.nowuseeit.tn.gov/Mediasite/Play/22b5cb42a139475ea14c0e8db6f59d711d
On Friday (Oct. 11), I’ll deliver a talk on the utility of a standards approach (as opposed to a rules approach) to the integration of information and communication technology into the practice of mediation. The session is presented, or at least organized by the Administrative Office of the Courts in Tennessee. I’m particularly happy to be involved because of the opportunity to go back to Tennessee, the chance to see some good friends and valued colleagues, and a chance to talk about something to which I am committed. I’m also glad to be back in Nashville because it is a return to a venue near the one that was, back in 2018, my first bit of work and first public appearance after my cancer hiatus. I am grateful to Larry Bridgesmith for both invitations.
This is a screen shot of the first class meeting of the ODR certificate program that Ana, Alessandra, and I are running in English and Portuguese. This was taken near the end of the first session when we were looking at a poll of opinions about barriers to ODR. Eleven weeks to go.
