Global Issues in Mediation
Authors:
Nolan-Haley, Jacqueline / Deason, Ellen E. / Gonstead, Mariana Hernandez-Crespo
Edition:
1st
Copyright Date:
2019
14 chapters
have results for alternative dispute resolution
Chapter 1 Mediation Overview 1 57 results (showing 5 best matches)
- Mediation is used to manage or resolve disputes and conflicts. It is a consensual process in which a neutral third party, the mediator, helps to facilitate an agreement between disputing parties but does not decide the outcome of the dispute. Mediation, arbitration, and negotiation together compose modern alternative dispute resolution (ADR) and offer a flexible combination of processes in a creative mix and match among the component features of ADR. With the advent of modern dispute resolution and, since the 1980s, the development of dispute systems design (DSD), mediation has achieved increased prominence as an interest-based method of dispute resolution, offering stakeholders an alternative to rights-based processes such as arbitration and court adjudication. The practice of mediation has roots in ancient times but mediation occurs today because of pre-dispute agreements, agreements to mediate existing disputes and, in some cases, when ordered by a court. Mediation also occurs...
- Mediation has evolved into a constituent part of the architecture of international dispute resolution as a confidential, efficient process that saves costs, preserves on-going relationships, gives parties control over their disputes, provides transparency and creative solutions, and often results in greater levels of satisfaction than litigation. These features make mediation attractive to global companies searching for consensual, interest-based methods of dispute resolution that help them to avoid conflict and manage their disputes. Mediation emphasizes cooperative communications between parties and offers abundant flexibility as it is not bound by rules of civil procedure and evidence. The mediation mindset changes the paradigm in dispute resolution from a positional bargaining stance characteristic of the adversary system to a more problem-solving approach focused on underlying needs and interests.
- Much of Europe’s embrace of mediation has been under the banner of the third ADR wave, as the European Parliament has included within the concept of access to justice “access to adequate dispute resolution processes for individuals and businesses.” In this sense, mediation and other ADR processes are part of a network of access to justice systems. It is assumed that mediation will provide what EU Commissioner of Justice, Viviane Reding, calls “alternative and additional access to justice in everyday life.”
- Since the beginning of the 21st century, a variety of existing and would-be dispute resolution service providers have promoted online dispute resolution (ODR) in the form of “cybermediation”. Although growth was initially slow, ODR has found an initial and expanding niche with the growth of e-commerce, as it proved to be a means of addressing concerns regarding the reliability of online sellers or products, and the availability of accessible recourse, in the event of a dispute.
- As a primary means of communication across distances, and even within homes and offices, email has become an indispensable element in conflict and its resolution. Electronic interchange is the backbone of modern business transactions . . . . . Email is also a prime ancillary tool for dispute resolution professionals in mediation and arbitration.
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Chapter 7 International Mediation in the Context of Investor-State Disputes 225 107 results (showing 5 best matches)
- The ultimate focus should be on crafting appropriate dispute resolution. Mediation, negotiation, or working with an ombuds office (or lead government agency), particularly when combined with Dispute Systems Design to identify methodologies for channeling conflict, provide core infrastructure supporting alternatives for extracting value from dispute resolution, decreasing direct costs, avoiding indirect costs (like diverting key personnel from productive activities), and maintaining relationships, particularly when investors continue to do business within the state or region. Approaching conflict management with a broad perspective and eye towards effective use of adjudication alternatives has resolved disputes about government conduct, regulatory conflicts, and public policy issues, including environmental disputes. A broader perspective on conflict management, searching for appropriate tools, opens doors to dispute prevention and fostering relationships that constructively promote...
- Opportunities for Dispute Systems Design in Investment Treaty Disputes: Consensual Dispute Resolution at Varying Levels
- Without effective dispute resolution, the goal of using investment treaties to promote investment is undermined. Investors need security, transparency, predictability, reliability, and certainty in the planning of their investments and the resolution of related disputes. Poorly planned and poorly managed dispute resolution increases the cost of resolving disputes, amplifies investment risk, and generates investment disincentives. On a larger scale, the poor management of investment treaty conflict could undermine the success of the investment treaty regime. If DSD can improve the dispute resolution system and promote efficient conflict management, it is worthy of consideration.
- Costs data suggests that alternatives to arbitration are warranted to provide more flexibility and expanded options. To the extent that investors, states, and counsel are economically rational actors (while recognizing people are predictably irrational but domestic politics impacts states’ rational decision-making), stakeholders require data to aid appraisals of ITA’s [Investment Treaty Arbitration’s] net value. Net value permits stakeholders to assess adjudicative options, like arbitration, explore viability of alternative processes for managing conflict to identify dispute resolution (ADR) strategies. The objective should be to avoid disputes where possible, manage conflict when it arises, and engage in systematic consideration of dispute resolution options to “fit the forum to fuss.” Part of making strategic choices involves understanding outcome probabilities given the variables involved and likely costs of pursuing different methodologies. . . . .
- A properly designed dispute resolution system can draw conflict to the surface and channel its productive forces. Dispute Systems Design (DSD) is the systematic process of creating a dispute resolution system that harnesses the positive aspects of conflict or at least minimizes the negative aspects.
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Chapter 5 Ethical Challenges 157 25 results (showing 5 best matches)
- The Ethical Principles for Online Dispute Resolution (ODR) are designed to enhance the quality, effectiveness and scope of dispute resolution processes with technological components. Taken together, they can provide a touchstone for best practices, standards, rules, qualifications and certification efforts in dispute resolution and related fields that address dispute resolution processes and practices.
- In the following excerpts, Susan Nauss Exon describes the “fourth” and “fifth” parties in virtual mediation and Leah Wing, co-director of that National Center for Technology and Dispute Resolution, outlines ethical principles for online dispute resolution.
- . ODR systems, processes and practitioners will be competent in or provide access to relevant technological or human competency required for the effective implementation of the dispute resolution process that they undertake to assist with. This includes but is not limited to relevant dispute resolution, legal, and technical knowledge; languages; and culture.
- . Online dispute resolution continues to innovate to improve the delivery of dispute resolution services and benefits more fairly, effectively and efficiently in ways that increase peace, trust and access to justice.
- . The design and implementation of efficient and effective processes provide for their usage, not only to the broadest range and number of people, but also by accounting for the reality of cultural differences within and between jurisdictions, as well as differential access to resources and experiences of marginalization that can hinder access to dispute resolution and justice processes, whether formal or informal. ODR systems and processes effectively facilitate and do not limit the right to representation for parties in processes of dispute resolution.
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Chapter 6 Combining Mediation with Other ADR Processes 181 71 results (showing 5 best matches)
- Among all kinds of factors contributing to the success and popularity of conciliation in Chinese dispute resolution practice both in litigation and in arbitration, the Confucianism that advocates harmony and opposes litigation is widely regarded as the philosophical basis of conciliation in China. The prominent character of Chinese society given that the basic unit of traditional Chinese society was not based on individuals but rather every small community causes people to gravitate towards conciliation rather than adversarial proceedings. Besides the long-standing and deep-rooted culture and social factors, China’s government intensively promotes conciliation and other alternative dispute resolution mechanisms. The conciliation is regarded as an important part of harmonious society, a political goal of the Chinese Central Government of the day, and has been strongly promoted for decades. Following this guideline, the Chinese Supreme People’s Court and the Ministry of Justice...
- The goals of having a multi-tiered dispute resolution plan can be achieved only if the parties actually participate in the early stages of the sequence of processes. Thus enforceability of the clause is an important consideration. Legal systems vary in how they regard multi-tiered dispute resolution clauses, with some countries treating them under substantive contract law rules and others, especially in continental Europe, regarding the breach of an obligation to engage in a dispute resolution process as a procedural violation. Enforcement issues arise if one of the parties files a litigation or arbitration claim without first fulfilling its obligations under the agreement to use a preliminary process. In general, when the parties have drafted an enforceable multi-tiered dispute resolution agreement, the court or arbitral panel may dismiss the claim or stay the proceedings while the parties engage in the agreed dispute resolution process(es). To be enforceable, a multi-tiered...dispute
- Stepped dispute resolution provisions in commercial contracts are a straightforward response to the reality that most business disputes are amenable to a negotiated resolution, and that there are multiple benefits associated with early, informal resolution of disputes. Stepped approaches are intended to function as a series of sieves or filters to cull out all of the issues and controversies that may be resolved short of binding adjudication. Where direct negotiation between representatives of the parties is unavailing, the intervention of a mediator may help break the logjam and craft a workable resolution.
- There are indications of strong interest globally in combining an adjudicatory process with mediation. At the Global Pound Conference in 2016–2017, stakeholders met at 28 events held in 24 locations around the world to discuss ways to improve commercial dispute resolution. The delegates, with additional participants on line, voted on answers to a series of core questions designed to assess the current dispute resolution landscape and evaluate paths for improvement. One of the key themes that emerged from the voting was a sense that effective dispute resolution currently involves “[c]ombining adjudicative and non-adjudicative processes (e.g. arbitration/litigation with mediation/conciliation).” This was also a very popular choice as a priority for improving the future of commercial dispute resolution.
- But the linear arrangement of elements in multi-stage dispute resolution templates does not take account of the reality that dispute resolution is very often “non-linear.” It is frequently not viewed as possible or practicable to settle a case before the filing of an arbitration demand. This may be because of differing (and often, unrealistic) expectations on the part of counsel or parties regarding the likely disposition of issues should the case go to trial or arbitration or the settlement value of a case, the perceived need for more information, or other factors. . . . . When settlement does not occur during the preliminary stages of dispute resolution, the arbitration proceeding becomes the backdrop against which negotiated settlement discussions will occur. In many such cases, mediation is postponed until a relatively late stage in the pre-hearing process when discovery is completed or well-advanced.
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Chapter 8 Peacemaking Mediation 265 28 results (showing 5 best matches)
- business leaders, low-income community leaders and representatives of non-governmental organizations). In this project, participants collectively identified problems, gathered relevant information, analyzed and interpreted that information, and developed action plans. They examined options for improving dispute resolution, specifically the Multi-Door Courthouse, a forum that directs incoming court cases to the most appropriate avenues for dispute resolution, as well as alternative methods (e.g., mediation or arbitration) and the traditional court. Through a specialized, virtual, on-line forum, volunteer participants first evaluated the current state of dispute resolution in Brazil. Second, they explored the use of judicial resources and the Multi-Door Courthouse as options to enhance dispute resolution opportunities. Finally, they proposed a systemic approach required for the implementation of their agreement.
- Local capacity and existing national infrastructures to undertake conflict resolution should be evaluated and strengthened. Agreements should provide for strong dispute resolution mechanisms at different levels, including local and international actors as appropriate, so that problems can be addressed as they arise and not escalate.
- Hugo Grotius, the father of international law, spoke often of the importance of mediation and other forms of dispute resolution as a way to avoid or end hostilities. Given the consequences of war, Grotius emphasized the importance of using such approaches, pointing to historical and successful examples of third party intervention. Not surprisingly, the United Nations Charter singles out mediation as a major tool of dispute resolution.
- I wanted to examine whether tools such as the MDC [Multi-Door Courthouse] and consensus-building could be used to build the capacity of citizens meaningfully to participate in private and public dispute resolution processes, and whether the skills, knowledge and experiences learned in an inclusive deliberative process could be transferred to the civic arena. The goal of the Project was to engage various stakeholders in the issue of optimizing dispute resolution systems. By using consensus-building, I aimed to create a forum that allowed for inclusive, participatory deliberation. At a basic level, the Project was about bringing Brazilian citizens together to assess the state of dispute resolution in Brazil, and whether the Multi-door courthouse could help to optimize it. More broadly, however, the Project attempted to create a culture of inclusion in which citizens from a wide range of backgrounds and sectors were invited to participate in deliberations on an issue of public importance.
- Mediation, or the intervention of third parties, has been a tested and tried means of dispute resolution since the earliest history of the world. It was widely used in both Rome and Egypt and by the Greek city-states in connection with their wars. Indeed, emperors and rulers at different points in history were called on to assist in the resolution of disputes involving other states and nations. Louis IX became world renowned in that role, sought both from inside and outside his country to arbitrate and mediate disputes. More recently, we have witnessed a former President of the United States, Jimmy Carter, playing such a role on the world stage, and his former Secretary of State, Cyrus Vance . . . . . played such a role as well. The citation accompanying the Nobel Peace Prize given to President Carter spoke admiringly and deservedly of his role in mediating disputes.
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Chapter 9 Case Studies 297 66 results (showing 5 best matches)
- In America, mediation is used to solve all types of disputes. From divorces to contractual violations, there are few civil disputes that cannot go to mediation. This general willingness to mediate, if the parties so desire, misses the lesson being taught by the Chinese—some disputes need to go to arbitration or litigation. In order to be more effective as mediators, parties and their advocates need to be aware of all of their dispute resolution alternatives. Some disputes require a finding of fact, not a finding of common ground. Unfortunately, the recognition of what dispute resolution procedure to undertake is not the choice of the mediator, but rather the choice of the parties. However, mediators can play a role in this selection process by informing potential parties of the mediation process, its goals and outcomes, and its limitations. In order to utilize the mediation process properly, mediators must inform some potential clients that mediation is inappropriate to settle their
- . . . . Navajo peacemaking is not a method of alternative dispute resolution; it is a traditional justice method Navajos have used from time immemorial.
- The emphasis on the use of dispute resolution mechanisms has been to provide access to justice for those who cannot afford the formal and traditional justice system; to date, the traditional formal justice system remains reserved for those who can afford the cost of litigation. For many, mediation, the most-used dispute resolution process, has become not one option but the only option.
- Remarkable progress has been made in the last 30 years with the development of dispute resolution legal frameworks and innovative initiatives aimed at promoting access to justice. Yet without efficient and reliable civil systems of justice, dispute resolution mechanisms cannot operate effectively. Therefore, a civil system reform is an indispensible next step.
- In the Middle Eastern context, Mohammed Abu-Nimer describes a community dispute resolution process in a Palestinian village in Northern Israel and identifies some basic assumptions of that conflict resolution process. These assumptions include the following:
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Chapter 3 The Role of Culture in International Mediation 63 50 results (showing 5 best matches)
- Similarly, although dispute resolutions institutions are socially and culturally embedded, some of their characteristics may spark innovation in other settings. However, to encourage the cross-pollination of ideas about dispute resolution institutions, we need to examine dispute resolution institutions themselves as social and cultural processes. Such analysis would compare how dispute resolution institutions work, why they work the way they do, how they get deployed in the service of ideology or social struggles, how they interact with other institutions to create the political and social conditions to realize their goals and to what distributional ends.
- Contentious, competitive business cultures exist, and they generate disputes initially while erecting barriers to efficient resolution. Company lawyers note that their “business people think that they are right all the time.” Key individuals in companies often get personally and emotionally invested in disputes in ways that influence selection of resolution methods. Corporate lawyers explain that angry businesspersons with strong emotions often dictate the choice of adjudication, even though this is not the most effective method of dispute resolution. . . . .
- Culture is not only influential in the different stages of the mediation process, but it is also relevant in process and system design. Process design provides an opportunity to tailor a culturally appropriate dispute resolution process, such as mediation, in order to meet the needs of the parties and the organization. In contrast, dispute system design (DSD) allows for the selection and creation of processes, including mediation, to address streams of disputes, so that each process reflects the values of the parties. While process design refers to a single process, system design has been described as “the applied art and science of designing the means to prevent, manage, learn from, and resolve streams of dispute or conflict.”
- The professional culture of U.S. lawyers also erects barriers to recommending and using mediation to resolve transborder disputes in ways that transcend the cognitive biases of partisan perception, fixed-pie assumptions, and win-lose thinking. Professional expectations regarding the extent of information needed before counseling clients about resolution options, for example, often inhibit recommending mediation. . . . .
- These differences create enormous challenges to consensual resolution of disputes through negotiation and mediation.
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Acknowledgments v 20 results (showing 5 best matches)
- Jeswald W. Salacuse, Is There a Better Way? Alternative Methods of Treaty-Based, Investor-State Dispute Resolution, 31 Fordham Int’l L.J. 138 (2007).
- Leah Wing, Ethical Principles for Online Dispute Resolution: A GPS device for the Field, 3 Int’l J. Online Dispute Resol. 12 (2016).
- Mariana Hernandez Crespo, From Paper to People: Building Conflict Resolution Capacity and Frameworks for Sustainable Implementation of IIAs to Increase Investor-State Satisfaction, in United Nations Conference on Trade and Development, Investor-State Disputes: Prevention and Alternatives to Arbitration II 55 (Susan D. Franck & Anna Joubin-Bret eds., 2011). Reprinted with the permission of the United Nations.
- Susan Nauss Exon, Ethics and Online Dispute Resolution: From Evolution to Revolution, 32 Ohio St. J. on Disp. Resol. 609 (2017).
- Mariana Hernandez-Crespo, 30 Years of Dispute Resolution in Latin America, Disp. Resol. Mag. Spring 2015, at 48.
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Chapter 4 Legal Issues and Regulation of Mediation 105 64 results (showing 5 best matches)
- By contrast, others argued that disputing parties should not have to go through the elaborate exercise of converting a settlement into an award, and that they should not have to depend on finding (and hiring) an arbitrator willing to enter it as an award. . . . . Moreover, in many jurisdictions, whether the New York Convention would apply to all such consent awards is an open question. . . . . Beyond these concerns about a legal gap, from a policy perspective, parties that prefer to use mediation should not be forced to engage in another form of alternative dispute resolution simply in order to receive equal legal protection of the outcome of the dispute resolution process.
- 5 U.S.C. §§ 651–658), requires all federal district courts to provide alternative dispute resolution. But the ADR Act leaves the choice of dispute resolution and its implementation to individual courts, resulting in different approaches among the federal courts. Moreover, outside the court system, almost all regulation of mediation takes place at the state level. The most important effort at harmonizing state provisions is the Uniform Mediation Act (UMA), adopted jointly by the American Bar Association and the Uniform Law Commission.
- Agreements to mediate come in two forms. First, when parties initiate a relationship, they may plan for dispute resolution and insert a provision into their contract. This provides them with an opportunity to design a resolution process before a dispute arises, while their relationship is positive. While arbitration has been the traditional choice in international commercial endeavors, parties are now turning more frequently to mediation or to combinations of mediation with other processes. Parties are choosing to combine mediation with arbitration in hybrid processes or agreeing to multi-tiered dispute resolution clauses that include negotiation or mediation as the initial consensual step in a multi-step process. Chapter 6 explores combining mediation with other processes in more detail.
- Conciliation or mediation is essentially consensual, and the opponents of enforceability contend it is futile to seek to enforce something which requires the co-operation and consent of a party when co-operation and consent can not be enforced; equally, they say that there can be no loss to the other party if for want of co-operation and consent the consensual process would have led to no result. The proponents of enforceability contend that this misconceives the objectives of alternative dispute resolution, saying that the most fundamental resistance to compromise can wane and turn to co-operation and consent if the dispute is removed from the adversarial procedures of the court and exposed to procedures designed to promote compromise, in particular where a skilled conciliator or mediator is interposed between the parties. What is enforced is not co-operation and consent, but participation in a process from which co-operation and consent might come.
- As mentioned in Section II, when entering into a relationship, parties have an opportunity to plan for dispute resolution. They can design a process to fit their specific situation and the types of disputes they anticipate. Or they can designate a dispute resolution institution to administer the mediation process and use its standard rules and mediation clause. Whether the parties design an individual ad hoc process or use an institution, a mediation clause commits the parties to the process and thus serves a triggering function once a dispute arises. One of the barriers to using mediation is that some parties feel that suggesting mediation for an existing dispute signals weakness. In this situation, a pre-commitment in a contract clause is a useful strategy for getting disputing parties to the mediation table. (See Box 3 for some useful provisions to include in when drafting a mediation clause.)
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Chapter 2 Court-Connected and Mandatory Forms of Mediation 29 43 results (showing 5 best matches)
- Besides the perceptions of the parties, judges bring to the table many particular qualities and skills that make them effective mediators. First, judges have long experience in intervening between disputing parties. This practical experience is buttressed by a second factor, namely the judge’s commitment both to achieving resolution and to dispensing justice. Third, the judge is already part of the subsidized public court system. This provides an enormous benefit to parties for whom both adjudication and private mediators are too expensive; in the Quebec system, for example, there is no cost to the parties associated with judicial mediation beyond preparation expenses. Such programs thus have the potential to offer the best of both worlds; they provide the flexibility of alternative dispute resolution but do so by employing existing adjudicators at no extra cost.
- In our view, for disputes that are already within the adjudicative system or that have proved resistant to extrajudicial resolution, judicial mediation presents a powerful alternative to the often blunt instrument of an adversarial trial. It offers a
- In an effort to promote and legitimize mandatory mediation, the Law and Public Policy Committee of the Society of Professionals in Dispute Resolution (SPIDR) issued a report in 1990 stating that “[m]andatory participation in non-binding dispute resolution processes often is appropriate.” Federal legislation soon followed. The Civil Justice Reform Act of 1990 and its progeny in the states made mandatory mediation part of the ADR landscape, and courts upheld its legitimacy. After mediation was implemented as a cure for the inefficiencies of the justice system, mandatory mediation programs were adopted in numerous contexts, particularly for custody and divorce disputes. Some studies reported that parties remained satisfied with mediation, even when their participation was required.
- Who are the primary promisees? The courts? Legislators and administrators trying to protect the public fisc? Lawyers? Professional neutrals? Or the people—especially people who need dispute resolution services?
- Dispute Resolution Magazine, 48, 50 (Spring 2015).
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Table of Contents 28 results (showing 5 best matches)
- Mariana Hernandez Crespo, From Paper to People: Building Conflict Resolution Capacity and Frameworks for Sustainable Implementation of IIAs to Increase Investor-State Satisfaction, in United Nations Conference on Trade and Development, Investor-State Disputes: Prevention and Alternatives to Arbitration II237
- Orna Rabinovich-Einy & Ethan Katsh, Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment18
- Mariana Hernandez Crespo, 30 Years of Dispute Resolution in Latin America60
- U.N. Secretary-General, Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution: Report of the Secretary-General169
- U.N. Secretary-General, Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution: Report of the Secretary-General172
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Index 347 52 results (showing 5 best matches)
- See also Multi-Tiered Dispute Resolution Clause
- See also Combinations of Mediation with Arbitration; Institutional Rules; Investor-State Arbitration; Multi-tiered Dispute Resolution Clause; and New York Convention
- Online dispute resolution and, 175
- Online Dispute Resolution, 18
- See also Arbitration; Multi-Tiered Dispute Resolution Clause
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Title Page 2 results
Summary of Contents 3 results
- Publication Date: June 10th, 2019
- ISBN: 9781683286196
- Subject: Dispute Resolution
- Series: Global Issues
- Type: Global Issues
- Description: This book is an essential read for mediators, arbitrators, students, attorneys, policy makers, business people, and other professionals involved with cross-border interactions. It provides a comprehensive and cutting-edge overview of topics that are essential for informed decision making about resolving disputes in our global landscape. Although arbitration has traditionally been widely-used to resolve disputes internationally, mediation is increasingly considered an attractive option that gives parties control over the process they use and the outcome they decide upon. The book covers the latest developments in court-connected and mandatory forms of mediation, cultural considerations, legal issues and regulation, ethical challenges, combining mediation with other processes, mediation of investor-state disputes, innovative trends in process and system design, and peacemaking mediation. The book is designed to stand on its own or provide a supplement in traditional dispute resolution courses. It is appropriate for those who want an introduction as well as for those seeking insightful analyses of the most recent developments in the field.
