status

CyberWeek 2019

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/

16
Nov 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

Singapore Convention Notes

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).

09
Nov 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

First ODR Book in Spanish

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.

29
Oct 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

IJODR Student Edition

  • An invitation will be issued for all graduate students in Law Schools, Dispute Resolution degree programs, and related academic programs internationally to submit articles to the IJODR.
  • The subject matter of the articles is open:  any topic related to online dispute resolution (ODR) will be considered.
  • The articles will be reviewed by an international panel of ODR experts, and final decisions regarding publications will be made by the IJODR co-Editors-in-Chief, Daniel Rainey, Ethan Katsh, and Mohamed S. Abdel-Wahab.
  • Questions regarding the journal or potential submissions can be addressed to any of the following email addresses:

daniel@danielrainey.us

ethan.katsh@gmail.com 

msw@zulficarpartners.com 

28
Oct 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

Global Impact Award

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.

18
Oct 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

An ODR Standards Approach

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

18
Oct 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

Nashville Cats

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.

09
Oct 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

ODR Certificate Program

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.

26
Sep 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

Upcoming – I will be speaking at each of the events below.

Online ODR Course in English and Portuguese, beginning on Sept. 25.
Register at ODRfoundations.com



17th Annual Advanced Mediation Technique Workshop – hosted by Lipscomb University in Nashville, TN on October 11.

Annual ODR Forum, hosted by the National Center for State Courts in Williamsburg, VA, Oct. 27-29.
Register at www.ODR2019.org
10
Sep 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
status

Whom Should We Fear?, Part II

My comments about violence and who commits it have been responded to by some as though I were directly attacking Trump (whom I did not mention), and as though I were suggesting that only one group is responsible for mass violence. Let me come at it from another angle.

Much of our public discourse is ugly. Much of our public discourse is hate-filled. Much of our public discourse is aimed at creating fear of immigrants and illegal immigrants. Any one who would argue that any of these statements are incorrect has not been paying attention to the nasty back and forth dominant in the media and on the Internet for the past few years.

My main point was that being fearful of immigrants and illegal immigrants is less rational than being fearful of other groups. The Cato Institute, which could never be accused of being a liberal think tank, reports, “Since 1911, large nationwide federal immigration commissions have asked whether immigrants are more crime-prone than native-born Americans and each one of them answered no . . . .” Measuring the propensity of illegal immigrants to engage in violent behavior is much harder, but the research does indicate that violent crime among illegal immigrants is markedly lower than the violent crime rate among native-born Americans. Does this mean that immigrants and illegal immigrants do not commit crime? No, of course not. And it does not mean that one should feel any better about being a victim of immigrant violence just because it is statistically less likely to happen than it is to be a victim of non-immigrant violence. It does mean that the hate-filled, jingoistic, de-humanizing vitriol aimed at immigrants is just flat wrong on a factual basis, and is just flat un-Christian and immoral on a spiritual basis.

09
Aug 2019
POSTED BY danielrainey
POSTED IN

Blog

DISCUSSION No Comments
Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: