From the Mediation Committee - 2023 update
Martin Hauser, past Co-Chair (2021-2022)
Martin Hauser Mediation
martin.hauser@martinhausermediation.com
Federico Antich, Co-Chair (2022-2023)
Studio dell'Avvocato Antich
avvfa@icloud.com
Shaun Henriques, Co-Chair (2023-2024)
Neutral Design Management Consultancy LLC
shaunh@neutraldmc.com
Dear members,
We are happy to present you with the first Committee update since July 2022, with news on events since then.
We note that 2022 was a difficult year, including with cross-border tensions in various areas such as the return of war to the heart of Europe after many decades of peace, resulting in suffering for Ukrainians and many Russians. There were also numerous other global humanitarian and environmental challenges, contests between democracy and authoritarianism, and the rule of law versus rule of outlaws.
We had, on the other hand, the immense pleasure of meeting each other again in person at the Annual Conference in October November 2022 in Miami, and at other events since then, such as the Mediation Committee Breakfast in Lisbon in April and the Mid-Year Officers' Meeting in Helsinki in May 2023.
We also hope that we can continue for the rest of 2023 to assist with the progress of mediation and we look forward to meeting you at the 2023 Annual Conference in Paris, France.
2022
Besides our four sessions at the Annual Conference in Miami, during 2022 the officers of the IBA Mediation Committee organised the following six webinars, some jointly with other IBA committees, discussing and sharing with a worldwide audience in specific fields the common interest and best practices in mediation:
- Mediation of aviation-related disputes (with the IBA Aviation Law Committee)
14 March 2022
Watch recording here - Investor-state mediation: from IBA to ICSID - the road ahead (supported by the IBA Arbitration Committee and IBA Corporate Counsel Forum)
14 June 2022
Watch recording here - Professional ethics in online dispute resolution systems (upon the initiative of the IBA Professional Ethics Committee)
14 September 2022
Watch recording here - Art disputes and mediation (with the Art, Cultural Institutions and Heritage Law Committee)
12 October 2022
Watch recording here - International commercial mediation (with the European Court of Arbitration)
24 November 2022 - Mediation skills for keeping and building franchise relations (with IBA Franchising Committee)
28 November 2022
Watch recording here
At its 54th session UNCITRAL adopted the UNCITRAL Mediation Rules 2021, and the Commission mandated the Secretariat to prepare recommendations to assist mediation centres with adjusting the Rules for their use, to facilitate the Rules serving as a model for institutional rules.
Pursuant to that mandate the IBA Mediation Committee was invited by the Commission to attend and consult with the Secretariat at the 55th session of UNCITRAL in New York, and at which various recommendations were successfully submitted on behalf of the IBA by the IBA Mediation Committee. The main intervention by the IBA Mediation Committee being to:
UNCITRAL's recommendation
A/CN.9/1118 4/9 V.22-01047 (b) Right of parties to exclude or vary provisions of the rules at any time 9. The right of the parties to agree to exclude or vary provisions of the Rules at any time as prescribed by article 1, paragraph 4, may oblige institutions to administer mediations under provisions that are inconsistent with their institutional approach. Therefore, institutions may wish to consider amending article 1, paragraph 4 as follows:
“The parties may agree in writing to vary any provision of the [name of the institutional rules] at any time. Following the appointment of a mediator, any such variations are also subject to the mediator's consent. [Name of institution] may refuse to administer mediations under the [name of the institutional rules] if any agreed variations are incompatible with [name of institution]’s approach to consensual dispute resolution.”
Agreed solution
102. The Commission considered the draft recommendations transmitted to it by the Secretariat in chapter II of document A/CN.9/1118.
103. With regard to the text in italics found in paragraph 9 of the draft recommendations, which sets out a possible amendment that mediation centres and other interested bodies might decide to introduce to article 1, paragraph 4, of the Mediation Rules, considering that requiring the consent of the mediator might be too high a threshold, it was agreed to combine the first two sentences in that text as follows: “The parties may agree in writing, in consultation with the mediator where one has been appointed, to exclude or vary any provision of the [name of the institutional rules] at any time.”
Also in July 2022, the Vienna IBA-VIAC CDRC Mediation and Negotiation Competition took place online. The IBA Mediation Committee, with the support of the IBA, is one of the organisers together with VIAC of this important educational event which aims to improve the students’ knowledge and experience of mediation throughout the world.
You can view the report of the 2022 IBA-VIAC mediation and negotiation competition here.
2023
As reported by Gary Birnberg and Jalal (Jil) El Ahdab, Mediation Committee Advisory Board members, on 14 April 2023, the Mediation Committee presented its traditional 'Mediation Breakfast' at the 24th Annual IBA Arbitration Day, held in Lisbon, Portugal.
The conference theme was international arbitration in a divided world: a challenge to the system’s legitimacy.
'We riffed off that theme in our session to highlight the evergreen nature of mediation: a ubiquitous methodology whose legitimacy is beyond reproach. Our breakfast featured Ambassador Douglas Scott Proudfoot, a Canadian diplomat who, through his brilliant career, has seen postings in some of the world’s geopolitical hotspots.
The event took the form of a discussion, with Ambassador Proudfoot providing some opening remarks, followed by a Q&A dialogue with former Committee Chairs Jil El Ahdab and Gary Birnberg, and concluding with an audience Q&A in which the opportunity to present questions was hotly contested.
Throughout, Ambassador Proudfoot provided insight into the overlap and distinction between diplomatic and commercial mediation, as insights into what 'legal' mediators can learn from diplomacy and its use of mediation. He also very interestingly covered the question of the frontier, sometimes blur, between a 'political conflict' and a 'commercial dispute', while providing very concrete examples of challenging and actual talks, including on nuclear issues, he has had to frame and mediate.
Approximately fifty people attended the early morning event. The reviews were glowing, highlighting the conversational format, which participants found to be very 'fresh' and dynamic, along with an appreciation of our guest’s engaging character and fascinating anecdotes and the relevancy of our session theme.'
The Mid-Year Officers' Meeting in Helsinki in May 2023 included a strong contingent of Mediation Committee Officers and Advisory Board members, who discussed current activities of the Committee, including those mentioned here, along with a number of exciting proposed initiatives that will be in the public domain in future, so stay tuned.
This year's IBA-VIAC CDRC Competition was again be held in July, in hybrid format.
Webinars confirmed by the Mediation Committee for this year to date are:
- Mediating M&A disputes (with the Corporate and M&A Law Committee)
4 October 2023 - Mediation in sports-related disputes
30 November 2023 - Mediators training and evaluation - what the global market really needs
Proposed date: 6 December 2023
We are considering/still open to other suggestions for this year. Please bear in mind that the IBA requires at least two months notice in advance of the date intended for the webinar.
The Mediation Committee sessions confirmed for the Annual Conference in Paris are:
- The psychology and practice of online mediation and AI supported mediation – update
- Commercial mediation in Africa in relation to Singapore Convention on mediated settlement
- Mediation and the challenges of the 21st century - including the status of the Singapore Convention and mediation guidelines for international commercial disputes
- Talk to me - a conversation with experienced mediators about the magic of mediation
- The use (and misuse) of artificial intelligence in dispute resolution - staged jointly by the Arbitration Committee, Class Action Committee, Litigation Committee, Mediation Committee, and Negligence and Damages Committee.
Please feel free to share with us your own thoughts on mediation in the form of articles or notes, or even basic suggestions or ideas, to be published in future bulletins. You may address them to our 'acting' Newsletter Officer, Shaun Henriques, at shaunh@neutraldmc.com. We look forward to engaging with our members on topics regarding mediation. Let’s stay in contact!
Best wishes,
Federico Antich and Shaun Henriques (Co-Chairs),
Martin Hauser (past Co-Chair)