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From the Co-Chairs - Mediation Committee December 2021

Monday 20 December 2021

Mary Walker
9 Wentworth Chambers, Sydney
inbox@marywalker.com.au

Martin Hauser
Martin Hauser Mediation, Munich
martin.hauser@martinhausermediation.com
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*2021 highlights - *Mediation Committee advisory board on why mediation is important and the future of mediation -
​​​​​​​*Committee bulletin - articles

Dear members,

We are heading towards the end of this year 2021 and we hope that you and your families are well in these still uncertain times.

We have members during these challenging times, in lockdown, in curfew or dealing with challenging medical issues, difficulties in accessing reliable IT or dealing with environmental disasters. 

Jurisdiction to jurisdiction, different issues arise. Our mediation community is reaching out with support through communication. Covid-19 has highlighted the importance of dialogue and connection and the need for the collaborative engagement by communities and professionals in dispute resolution domestically and internationally. Sharing best practice and responses to Covid-19 with international counterparts will continue to be important in the coming days. The Mediation Committee looks forward to continuing to engage with our members and expand the discourse and dialogue on mediation during these difficult times.

Some highlights during 2021

  1. The sixth IBA-VIAC Consensual Dispute Resolution Competition (CDRC Vienna) took place online from 10-14 July. This was the first year an online platform was used. 33 teams competed with the following prizes being awarded:

    Negotiation:
    -First prize to the National University of Singapore
    -Second prize to the University of Sydney
    -Third prize to the National Law School of India University, Bangalore

    Mediation:
    -First prize to the National Law School of India University, Bangalore
    -Second prize to the Bucerius Law School, Hamburg/Deutschland.

    We would also like to thank Committee officers and members for their continued engagement this year in the IBA-VIAC CDRC project many of whom acted as volunteers, trainers, coaches and as judges and to the members of the Operating Committee for the marvellous job done.

  2. It has been 2 years since the celebrations for the signing of the Singapore Mediation Convention. There are now 55 signatories and 8 parties have ratified the Convention. Many of our committee members spoke from each of their respective jurisdictions at the webinar entitled 'A Cameo Gathering: Voices on the Singapore Convention Two Years On', hosted by The Global Mediation Alliance, Society of Mediation Professionals (Singapore) (SMP) and JAMS during The Singapore Convention Week 2021 to highlight this important development.  

  3. The IBA Mediation Committee is also seeking to publish brief bulletins from time to time. Contributions from our members are most welcome. We are proud to present the second newsletter. Please send any articles or short briefing notes for future publications to James Claxton, Blazo Nedic and Alexander Leventhal
     
  4. The Mediation Committee encourages members to explore the International Bar Association's range of free webinars which may be of interest to members. We are looking forward to the events and conferences to be held in 2022.
     
  5. The Committee has held a webinar with the IBA IP Committee entitled: IBA Mediation of IP Disputes – a New Era and another is being arranged with the Aviation Committee entitled: Mediation of Aviation-Related Disputes.
     
  6. The Advisory Board was established in 2020 and consists of previous past Chairs. We would like to thank the members of the Mediation Committee Advisory Board for their continued support. Members of our Mediation Committee Advisory Board are currently: Mauro Rubino-Sammartano; Jawad Sarwana, Joseph Tirado, Tat Lim and Gary Birnberg.

We have asked our Advisory Committee members to contribute 50-100 words for our newsletter enunciating their views as to Why mediation is important and what do you see as important In the development of mediation in the future?

Here are the sage comments:

What is vital in mediation?

Mauro Rubino-Sammartano
Past Chairman of the IBA Mediation Committee

We are all – or mainly all – convinced to know exactly what is vital in life in general and, more specifically, on given issues. Nobody is then entitled to teach what is vital. I therefore express my own views on this issue as a contribution to our debate. The vital ingredient for a proper mediation to me is the purpose and efforts of the mediator to help all the parties review their approach to the dispute. If this is not tried and achieved and the parties keep to the approach to the dispute which they had before the mediation started, it seems likely to me that they will not settle.

In my opinion some ingredients are essential in order to achieve that target. The first one is the use of caucuses because only if a party trusting the mediator talks separately to him/her, she will provide information to the mediator which may help him/her try to narrow the distance between the parties.

The second one is that the mediator helps the parties, of course without pressing them in any way, to see also the negative aspects of their position.

The third one to me is the decision tree, since it helps the parties to take a more practical view of the consequences of not settling the dispute. Its result may even be to induce the parties not to settle, but in my opinion it is essential that the parties be aware of the consequences of their decision, whichever it be.

A fourth, last to me, vital ingredient for a good mediation is that the negotiators for the parties entirely forget the aggressive approach to the opposite party which is traditional in litigation. Each negotiator has to approach his/her opposite negotiator with a spirit of cooperation, aiming to make a friend of him/her, in order that they try to find a common solution together.

It is said that extremely clever negotiators handle the negotiation in such a way than they convince the other negotiator that the solution of the dispute, which they have in mind, is his own solution.

***

Why is mediation important?

Tat Lim 
Past Chairman of the IBA Mediation Committee

Mediation is important because it provides:

  • disputants the opportunity to avoid spending substantial time and money on adversarial dispute resolution processes that offer no guarantees of a good outcome; and
  • dispute resolution practitioners the opportunity to demonstrate the relevance of adversarial dispute resolution processes as an alternative to mediation.

What do you see as important in the development of mediation in the future?

Mediation will increasingly become intertwined with the process of arbitration and litigation. In Singapore, our Rules of Court will be amended to empower the court to order parties to any proceedings to attempt to resolve the dispute other than by litigation if the court is not satisfied that such parties have discharged their duties to consider an amicable resolution of the dispute before the commencement and during the course of any action or appeal.

***

Why is mediation important and how do you see the development of mediation in the future?

Joe Tirado
Past Chairman of the IBA Mediation Committee

Mediation offers a real and effective alternative to the costly and time consuming litigation and arbitration. A negotiated settlement under the auspices of a skilled mediator offers certainty and a definitive outcome that proceedings before a court or a tribunal does not. The mediation process is better able to bridge cultural divisions and provides the opportunity for a more comprehensive and creative resolution. Ensuring a wider understanding and knowledge among all stakeholders of the benefits of mediation is key to the future development of mediation. 

***

Why is mediation important and how do you see the development of mediation in the future?

Gary Birnberg
Past Chairman of the IBA Mediation Committee

The supreme importance of mediation is that it eschews the function of law as the central functional element in resolution crafting. This is crucial, as the law is imperfect, limited in scope and malleability, and legal processes are subject to mistake in the outcome. Therefore, legally-based solutions risk being unsatisfying, inappropriate, and even inconsistent with the pursuit of justice. Mediation allows the disputing parties the flexibility to develop resolutions that are appropriate to the circumstances and optimised for party interests. As such, mediation mirrors human interaction: governed primarily by interests and only secondarily by rules.

Thank you to our Advisory Committee members for these comments.

Martin and I thank you all for the work done in these difficult times and we wish you and your families a safe, healthy and happy remainder of 2021 and 2022.

Please find here the second edition of our Bulletin 2021, edited by James Claxton, Blazo Nedic and Alexander Leventhal on behalf of the IBA Mediation Committee.  We hope that you will enjoy reading the different contributions on mediation from our members.

At this moment, we are starting to prepare and looking forward to our Annual Conference in Miami in November 2022, which will hopefully be held again as an in-person event. 

Meanwhile throughout 2022 we are planning to organise webinars on specific topics, some of them jointly together with other IBA Committees. 

We thank our members for their feedback and contacting us showing their interest in the work of the Committee. 

Please feel free to write to us for any suggestions and send your articles to our editors for the next edition in 2022 of our Bulletin.

Let’s stay in contact.

Mary Walker and Martin Hauser
Co-Chairs, IBA Mediation Committee