Mediation is proliferating as a form of dispute resolution in countries around the world, with the recent launch of JAMS Ireland providing a new destination to the growing list of global mediation centres.
To underscore Ireland’s support for the process, the on-going Draft General Scheme of Mediation Bill 2012 includes provisions that would oblige lawyers to inform clients of mediation, allow mediation communications to remain confidential, and let courts urge parties to consider mediation.
Among many other countries implementing new rules, England and Wales moved towards mandatory mediation of divorce and employment disputes while the Dutch Parliament received new draft legislation on 3 June to revamp the sector.
Manon Schonewille, a mediator based in the Netherlands, explains that new proposals grant mediators access to an “e-judge”, who is accessible to registered mediators by electronic means. The e-judge can be requested to make mediated settlements enforceable, consulted on legal matters or for making partial decisions when requested by parties, for example, if there is a specific clause or legal issue holding up the mediation.
“The judge will provide their opinion on the issue and that opinion will be included in any settlement,” she continues. “Under the new Dutch mediation law, lawyers will need to explain in their summons whether mediation has been tried and if not the reason for this. Also, judges will be urged to refer parties to mediation at any stage of the judicial process for a rather extensive list of cases where mediation is deemed to be an appropriate process.”
The types of initiatives seen in Ireland and the Netherlands helps mediation on a local level but mediators claim there is plenty of scope for mediation to be an effective solution to cross-border disputes.
The concept of cross-border mediation – that is mediation between parties from different jurisdictions – may be familiar on a political level but it is less common in commercial disputes. Schonewille points out that cross-border cases do not make up a big chunk of her work; around 90 per cent of mediations are national disputes.
One of the challenges for the internationalisation of mediation is rules that differ on a country-by-country basis. Schonewille recently co-edited an upcoming book reviewing mediation in 60 different jurisdictions (The Variegated Landscape of Mediation. A Comparative Study of Mediation Regulation and Practices in Europe and the World). She says it was interesting to try to find some common factors between mediation processes in different countries, but each jurisdiction was different.
“For example, parties mediating in Denmark are not allowed to bring their lawyers into a victim-offender mediation but parties mediating in Greece, Italy or Argentina are obliged to for each mediation, including small claims,” she adds. “Meanwhile, confidentiality in Finland is not guaranteed for in-court mediation because the judge takes on the role of mediator. Mediation rules can vary wildly.”
As such, countries with robust mediation rules are better-placed when it comes to cross-border disputes; those countries with unfavourable rules less so. When this is coupled with the wider plus points of mediation, such as confidentiality, mutually beneficial settlements, maintaining business relationships and avoiding litigation in local courts cases, certain regions can become attractive destinations for mediation.
In Ireland, JAMS Ireland’s joint head Paul Tweed has found that most of the initial enquiries have come from international parties, including from places like Kazakhstan and the US: “The flow of cases from UK and Irish parties has actually been quite slow.”
Tweed believes that the benefit of international mediation is that there is a need to get a genuine neutral, not just in terms of the parties but also geographically and this is where JAMS’ international network can help. “In that way, mediation is not dissimilar to arbitration as a way of approaching cross-border claims, although arbitration has a big advantage because it remains the default for international disputes,” he remarks.
Indeed, arbitration clauses remain prevalent in cross-border commercial contracts. The ability to get a definite ruling, which can usually be enforced by The New York Convention, is an attractive one. Even so, this is not to say that mediation cannot play a role and Tweed is keen to see more of mediation clauses in contracts.
“Mediation should be seen as a free bite of the cherry, maybe with clauses suggesting mediation before arbitration. It does not have to be an ‘either or’ approach,” he adds.
Schonewille agrees, adding that aside from the preference for arbitration clauses, the other major factor is that companies have not yet embraced mediation as a way of dealing with commercial disputes and there is still a reluctance from some lawyers. “Once this begins to change, that will help encourage more cross-border disputes to enter mediation.”
This post was written by Antony Collins who is a freelance journalist. He can be contacted at firstname.lastname@example.org