IBA Mediation committee reports on UNCITRAL Model Law regarding conciliation

IBA Mediation committee reports on UNCITRAL Model Law regarding conciliation

At the Chicago meeting in September 2006, the IBA Mediation Committee agreed to constitute a subcommittee to investigate and report on the MLICC with a view to provide members with a useful guide.

The subcommittee limited its inquiry to the MLICC provisions on (a) statute of limitations, (b) confidentiality of mediation and admissibility of mediation communications as evidence in subsequent legal or arbitral proceedings, and (c) enforcement of settlements.

A questionnaire was circulated which produced responses from 18 countries and an initial report was distributed in October 2007 at the Singapore Conference.

The initial survey report is available here.

A spreadsheet of the answers received to date is available here.

The subcommittee would welcome any additional responses from the members as well as any comments or suggestions on the initial survey report which would be helpful in the preparation for the meeting at the Annual Conference in Buenos Aires.

The questionnaire comprises of the following documents:

  1. Introduction to Questionnaire
  2. Questionnaire
  3. Answer Sheet

While there are important local details to be resolved as to the implementation of the MLICC as to tolling of the statute of limitations and the method of enforcing settlements reached in mediation, the concept has been accepted by, for example, the EC Commission and the European Parliament and does not present a serious issue of principle even though the implementation may be less than uniform given the competing sources of law and regulation mentioned in the report.

The MLICC provisions on confidentiality in general [Articles 8 & 9], that is, as to mediator and parties in a mediation, and disclosures by any of them to family, friends, business associates, competitors, or the media are not conceptually difficult to understand or enforce, even though some jurisdictions will not default to confidentiality but will require party and mediator agreement.

The MLICC provisions on admissibility of mediation communications, written or oral, in subsequent legal proceedings [Article 10] are reasonable grounds for reflection and discussion by members of the Mediation Committee because there is the potential for a fundamental misunderstandings as to what confidentiality’ in mediation means when it comes to what might be offered as evidence in a legal or arbitral proceedings after a failed mediation. Parties cannot determine by mere private contract what the courts will be entitled to accept as evidence. The circumstances in which a mediator or a party could be compelled to provide evidence as to what happened in a mediation, and the distinctions which might be made between what is offered in evidence for the truth of what is asserted compared with what may be offered for some other purpose, are not generally understood and agreed.

The UNCITRAL provisions on admissibility are a reasonable compromise between competing views, but the Mediation Committee should look carefully at the issues raised in the report under this heading --- most current mediation is probably not international nor ‘commercial’, nor undertaken by lawyers, the differences in points of view are considerable, and lawyers should be careful to understand the origins and practices of the culture of mediation as a alternative to litigation.

The difficulties inherent in adopting the MLICC are well illustrated by the proposal made by the EC Commission in 2004 and the amendments made by the European Parliament in March 2007, which are discussed and footnoted in the report. By the time of the Buenos Aires meeting there will hopefully be some evolution on this front.

John Michael Richardson (lawsome@gmail.com) and Birgit Sambeth Glasner (sambeth.glasner@altenburger.ch ) of the Mediation subcommittee are co-chairing this project.