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TABLE OF CONTENTS Foreword.......................................................................................................................................................iii Preface............................................................................................................................................................ v Chapter 1: Introduction.............................................................................................................................. 1 Goal of this book..................................................................................................................................... 1 Structure of this book.............................................................................................................................. 2 The diversity–consistency tension in mediation regulation.................................................................... 2 You cannot not regulate mediation......................................................................................................... 3 Law and regulation................................................................................................................................. 3 What is a regulatory policy?................................................................................................................... 4 Chapter 2: Regulatory Landscape............................................................................................................. 7 The regulatory landscape for mediation draws on the public and private sectors.................................. 7 The mediation landscape......................................................................................................................... 8 Centralized access to mediation in the mediation landscape.............................................................. 8 Court-related mediation: Justice model.............................................................................................. 8 Court-related mediation: Marketplace model..................................................................................... 9 Decentralized access to mediation in the mediation landscape........................................................ 10 Community mediation...................................................................................................................... 10 Private mediation.............................................................................................................................. 10 Hybrid models................................................................................................................................... 11 Sustainable diversity in the mediation landscape............................................................................. 13 Chapter 3: Regulatory Project.................................................................................................................. 15 Why do we need a dispute resolution policy?...................................................................................... 15 Why do we need a mediation policy?................................................................................................... 16 From good policy to good regulation.................................................................................................... 16 Stakeholders: Who is interested and why do they think it is important?.............................................. 17 Principal stakeholders....................................................................................................................... 17 Involved stakeholders....................................................................................................................... 17 Affected stakeholders........................................................................................................................ 17 Framework: What are we talking about?.............................................................................................. 18 Mediation definition.......................................................................................................................... 18 Implications of the definition............................................................................................................ 18 Distinguishing mediation from other dispute resolution mechanisms.............................................. 18 Focus: What are the relevant criteria?................................................................................................... 19 Policy principles............................................................................................................................... 19 MEDIATION SERIES: MAKING MEDIATION LAW | TABLE OF CONTENTS i User interests.................................................................................................................................... 19 International empirical findings........................................................................................................ 20 Chapter 4: Regulatory Principles............................................................................................................. 23 What is the scope of the proposed regulatory plan?............................................................................. 23 Who is the target audience?.................................................................................................................. 24 Who are the relevant regulatory actors?............................................................................................... 25 Regulatory form.................................................................................................................................... 25 Regulatory content................................................................................................................................ 27 Triggering mechanisms—How is demand for mediation initiated?................................................. 27 Process and procedure—How is the mediation process conducted?................................................ 27 Standards—How are mediation practitioner standards and quality assurance measures regulated?......................................................................................................................... 30 Rights and obligations—How are rights and obligations of participants (mediators, parties, and lawyers in mediation) regulated?............................................................... 32 What is the rule or the principle to be enunciated?............................................................................... 36 How to match the form to the content.................................................................................................. 36 How to determine the appropriate regulatory mix................................................................................ 36 Chapter 5: Success Factors and Pitfalls: How to Make It Work and What to Avoid.......................... 41 Success factors...................................................................................................................................... 41 Lessons learned..................................................................................................................................... 42 Fitting the policy to the people............................................................................................................. 42 Chapter 6: Regulatory Topics Checklist.................................................................................................. 45 Appendix A: Particular Issues: Cross-Border and Online Mediation.................................................. 49 Cross-border mediation: Regulatory instruments................................................................................. 49 Online mediation and dispute resolution: Regulatory instruments....................................................... 51 Appendix B: Further Reading.................................................................................................................. 53 Articles.................................................................................................................................................. 53 Books.................................................................................................................................................... 54 Categories of law.................................................................................................................................. 55 Legislation, European Union, and international legal instruments.................................................. 55 Practice directions............................................................................................................................. 56 Case law............................................................................................................................................ 56 Institutional rules and other soft regulation...................................................................................... 56 Policy documents.................................................................................................................................. 57 Websites................................................................................................................................................ 57 Notes..................................................................................................................................................... 57 ii TABLE OF CONTENTS FOREWORD The Mediation Series is a celebration of the long-term work of the International Finance Corporation (IFC), member of the World Bank Group, in helping client countries adopt and integrate mediation to increase the effectiveness of their conflict resolution systems. Since 2004, IFC has extended technical assistance to both governments and the private sector, globally, to ensure that mediation is established effectively. IFC’s projects cover the Balkans, East and South Asia, Sub-Saharan Africa, and the Middle East and North Africa and have led to a considerable increase in the use of commercial mediation. The success and the expansion of our mediation projects globally and the scarcity of material in Arabic have led and inspired the Mediation Series. The series offers a unique and comprehensive set of Alternative Dispute Resolution (ADR) learning resources for users, policy makers, lawyers, judges, and ADR professionals. The resources promise to support the growth and sustainability of mediation and ADR in the region and beyond. The Mediation Series consists of a three-book-package (Mediation Essentials, Making Mediation Law, and Integrated Conflict Management Design Workbook) that provides both breadth and depth on various important topics. The Mediation Essentials deskbook serves as an orientation guide to ADR generally and to mediation specifically for users, advisers, and mediators. Making Mediation Law offers a robust perspective on how to design successful mediation policy and legislation. Integrated Conflict Management Design Workbook offers a hands-on focus for designing efficient and effective dispute management systems with companies and organizations. The publications appear in both English and Arabic, except for Integrated Conflict Management Design Workbook (Arabic only). ABOUT MAKING MEDIATION LAW Making Mediation Law focuses on regulatory aspects of mediation and provides a step-by-step guide to making mediation policy and law. Mediation law affects all parties and can take a variety of different forms, from private contracts and codes of conduct to legislation. For mediation law to be successful, it requires a set of principles and techniques. The authors of this book provide an exposition of those principles and techniques, encapsulating the regulatory aspects of mediation in a step-by-step guide. This easy-to-read, practical book draws on international research, policy, and practice, and it offers valuable advice to a wide audience involved in the lawmaking process. Given the universality of the topic, the book serves a broad audience, is written in practical terms, and is offered in English and Arabic. Each chapter enriches the theoretical discussion with practical case studies. The first part of the book focuses on common issues, definitions, and models of mediation. It is important for readers to have a good grasp of those key concepts before they move to the hands-on sections. For individuals more familiar with mediation, the later chapters may be of more interest as they delve into the practical details of MEDIATION SERIES: MAKING MEDIATION LAW | FOREWORD iii how to set the stage for institutionalizing mediation, followed by a summary of best practices and common pitfalls. Readers who are eager to start the policy and lawmaking process will find easy-to-use checklists and templates in the later chapters. Mouayed Makhlouf IFC Regional Director for the Middle East and North Africa iv FOREWORD PREFACE At the start of the 21st century, mediation continues to enjoy a fresh and vibrant image. It symbolizes a transformation in the way people approach resolving disputes, the way lawyers advise clients, and the way judges dispense justice. As a dispute resolution process, mediation offers flexible solutions for a fast-changing world. While the substantive laws of nation-states grapple with (a) the fuzzy borders of online transacting, (b) the increasing difficulty of separating national from international, (c) the challenges of a global mobile workforce and global families, and (d) the way environmental disasters ignore national borders, mediation aims to offer dispute resolution procedures tailored to the needs of disputants. Those disputants might be corporate business entities, start-ups, online consumers, or indigenous leaders in charge of vast resources subject to foreign investment. Needless to say, regulatory activity in this area has been, and continues to be, significant throughout the world, with the United Nations Commission on International Trade Law (UNCITRAL) playing a leading role in the international commercial arena. Yet, making law on mediation presents a unique challenge that can be framed as follows: how do we best regulate a dispute resolution mechanism, the most attractive characteristic of which is its procedural and substantive flexibility? Making Mediation Law offers a step-by-step guide to making mediation law. It sets out best practice principles, one of which is the involvement of a wide range of interested individuals and groups in the law making process. Drawing from international research, policy, and practice, the book shows that mediation law belongs to everyone and can take a variety of different forms, from private contracts and codes of conduct to legislation. Making Mediation Law is written in accessible language and is suitable reading for everyone interested in the future of mediation practice. ACKNOWLEDGMENTS The publication of this manual was made possible because of the generous support of the Spain-IFC Technical Assistance Trust Fund and Switzerland’s State Secretariat for Economic Affairs (SECO) through contributions to the trust fund supporting the activities of the World Bank Group’s Investment Climate Advisory Services. The primary authors of this manual are Nadja Alexander and Felix Steffek. The authors wish to acknowledge that various parts of the publication are drawn from the following works: N. Alexander, International Comparative Mediation: Legal Perspectives (Alphen aan den Rijn, Netherlands: Kluwer Law International, 2009); K. Hopt and F. Steffek, Mediation: Principles and Regulation in Comparative Perspective, 1st ed. (Oxford, UK: Oxford University Press, 2013); and F. Steffek, and H. Unberath in cooperation with H. Genn, R. Greger, and C. Menkel-Meadow, Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads (Oxford, UK: Hart Publishing, 2013). The preparation of the manual was led by Fatma Ibrahim; the finalization was orchestrated by a team composed of Nina Pavlova Mocheva, Akvile Gropper, and Ejona Fuli from the World Bank Group. MEDIATION SERIES: MAKING MEDIATION LAW | PREFACE v We are grateful to our team of peer reviewers: Nina Mocheva, alternative dispute resolution expert at the World Bank Group, and Dr. Eman Mansour, director of the Investors’ Dispute Settlement Center, affiliated to the Egyptian General Authority for Investment and Free Zones (GAFI). This manual was edited by Publication Professionals, LLC. Design was by Aichin Lim Jones and Amy Quach. We would also like to thank Alex Azarov and Crystal Chin for their contributions and assistance. Nadja Alexander, Singapore, June 2016 Academic Director, Singapore International Dispute Resolution Academy Hon. Professor, The University of Queensland Senior Fellow, Dispute Resolution Institute, Mitchell Hamline School of Law Felix Steffek, Cambridge, June 2016 University Lecturer, Faculty of Law, University of Cambridge Senior Member, Newnham College vi PREFACE CHAPTER ONE Introduction CHAPTER NUMBER Chapter ONE CHAPTER Chapter Title: Title Chapter Title Introduction Mediation is a procedure in which an intermediary without decision-making powers (the mediator) systematically facilitates communication between the parties of a conflict with the aim of enabling the parties themselves to take responsibility for resolving their dispute. Mediation is a highly flexible and adaptable process—a factor that can create challenges for regulators. In fact, some people suggest that mediation should not be regulated at all. Yet, mediation does not and cannot exist in a regulatory vacuum. GOAL OF THIS BOOK The goals of this book are to: ■■ Describe the regulatory landscape of mediation. ■■ Outline the parameters of a regulatory project about mediation. ■■ Offer a step-by-step guide to making policy and law about mediation. Mediation is a highly ■■ Generate enthusiasm among a wide range of regulatory stakeholders flexible and adaptable to become involved in shaping the future of mediation. process—a factor that can create challenges for regulators. This book will be useful for all regulatory stakeholders: In fact, some people suggest ■■ Members of parliament and the executive that mediation should not ■■ Government departments dealing with law and justice issues be regulated at all. ■■ Judges ■■ Lawyers ■■ Mediation users ■■ Mediators ■■ Mediation advisers ■■ Mediation organizations ■■ Other professional organizations whose members mediate MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER ONE 1 STRUCTURE OF THIS THE DIVERSITY– BOOK CONSISTENCY TENSION IN MEDIATION In the introduction, we set out the goals and structure of the book before explaining some ideas REGULATION that inform our approach to the topic. In considering approaches to regulating mediation, it is useful to begin with the theme that has continued Next, in chapter 2, we offer an international to define and dominate discussions, debates, and overview of the regulatory landscape that considers developments in relation to mediation around the the different ways in which people can access world: the diversity–consistency dilemma. mediation. This approach allows readers to visualize the bigger picture of the kind of access points that The diversity–consistency dilemma refers to the can be activated to grow mediation practice. tensions between two motivations: on the one hand, diversity in practice through flexibility and In chapter 3, we commence the Regulatory Project. innovation and, on the other hand, to establish We cover the questions and issues you need to consistent and reliable measures of quality in think about and work through when you consider mediation practice through regulation. The debate regulating mediation or any aspect of it. In this begins with the issue of definitional consistency and chapter, “regulatory project” refers to your project the risks of excluding certain mediation practices to regulate the practice of mediation or to “make in the search for uniformity. It extends to concerns mediation law.” This chapter helps you to establish that rule consistency may stifle the growth of the parameters for your project. mediation, inhibit its opportunities for innovative development, and lead it down the highly legalized Chapter 4 leads into the next stage of making path that arbitration has traveled. mediation law, which involves making decisions about the content and regulatory form that you wish Diversity–consistency tensions reflect a multiplicity to use to regulate various aspects of mediation. of interests relating to consumers, practitioners, service providers, and governments. For example, Chapter 5 looks at success factors, pitfalls, and consumers demand a flexible and responsive process lessons learned. that accommodates their needs and offers quality and accountability in its delivery. In a professional Finally, in chapter 6, we provide you with a field as new as mediation, many consumers regulatory topics checklist. Once you have worked remain uninformed about quality and are unable through chapters 3 and 4 to develop your ideas, to judge mediator qualifications and performance. you may find it useful to go through the regulatory Consumer confusion is exacerbated by the diversity topics checklist to firm up your ideas. of mediation practice that spans transformative, negotiation-based, and advisory models. Protecting We also provide you with two appendixes to this consumers from incompetent and unconscionable book. Appendix A contains an outline of regulatory practices demands mediator accountability. That instruments relevant to cross-border and online accountability, in turn, requires some level of mediation. Appendix B offers a list of books, transparency and disclosure in mediation processes articles, regulatory instruments, and other resources combined with appropriate practice and approval for readers. standards. However, competing concerns for 2 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION protecting the integrity of the process through making. This system leads to a greater engagement strong confidentiality provisions can reduce with diverse regulatory forms beyond legislation mediator accountability. Finally, the question of and to the extension of soft law options and private accountability raises the issue of the obligations of contracting (for example, agreements to mediate mediation service providers to inform clients about and mediation clauses) and industry norms (for the nature of the dispute resolution process they example, codes of conduct, practice standards, and are entering and the qualification and skills of their accreditation standards). mediators. We suggest that it is a question neither of diversity LAW AND REGULATION at the expense of consistency nor flexibility over form. Rather, decisions need to be made about which Regulation by the market is often thought of aspects of mediation are most useful standardized as involving the absence of law or the result of and which are best made more flexible. deregulation by the state. However, deregulated spaces are not empty. They involve the reduction, removal, or absence of only one kind of regulation, YOU CANNOT NOT such as legislation. Where the market dominates, REGULATE MEDIATION the laws of supply and demand have a regulatory effect. In addition, so-called deregulated spaces Regulation is often associated with statutory may be filled with other forms of regulation, such as intervention. This association represents an well-established business or professional practices, outcome-focused and now outdated view that was industry or professional codes of conduct, and made on the basis of “simplistic and mechanistic complaints and disciplinary mechanisms (box 1.1). models of economic rationalism, legalism, and government control.” Traditional distinctions In this light, the debate about whether or not to between public and private and between regulated regulate mediation is misinformed. Regulation has and deregulated can be confusing, as regulatory always occurred, and it cannot be—and could not frameworks increasingly comprise different layers. have been—avoided. A more useful question is Regulation in the 21st century is a system featuring how to regulate mediation appropriately in light of a range of regulatory instruments and stakeholders the different approaches to regulation. engaged in dialogue, deliberation, and decision Box 1.1: Laws regulate In examining the laws of mediation, it is useful to think of law in terms of regulation. We make laws to regulate our behavior to one another, and those laws can derive from the state, self-management through contract or industry norms, and the marketplace. For example, dispositive (or default) law permits private parties to tailor rules to regulate their business relationship. Typically, this tailoring occurs through contractual arrangements such as agreements to mediate or mediation clauses. On contractual instruments in mediation, see Nadja Alexander, Fatma Ibrahim, and Jean-François Roberge, Mediation Series: Mediation Essentials (Washington, DC: IFC/World Bank Group, 2016), chapter 5. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER ONE 3 This broad understanding of law and regulation is consistent with contemporary regulatory theory, WHAT IS A which has shifted its focus from government REGULATORY POLICY? rulemaking to the context of institutions and interest groups. Policy refers to a set of principles, a strategy, or a course of action that is suggested or proposed by a This volume introduces the notion that everyone government, an institution, or an organization. can play a role in regulating mediation. It offers a step-by-step approach to developing a mediation A policy outlines a plan—what the ministry, the policy that can be transformed into law through a institution, or the organization hopes to achieve and variety of regulatory forms. the methods and principles it will use to achieve them. A policy is not a law; however, it can often identify new laws that are needed to achieve its goals (box 1.2). 4 HOW TO MANAGE AND CONTROL DISPUTES: ALTERNATIVE DISPUTE RESOLUTION Box 1.2: Case illustration—Working Group on Mediation The Department of Justice of Hong Kong SAR, China, set up the Working Group on Mediation in 2008. Wong Yan Lung, senior council and a former secretary for justice, chaired the group. A cross-sector body, the working group comprised representatives from the Judiciary; the Legal Aid Department; legal professional bodies; universities; and alternative dispute resolution organizations. Its purpose was to review the development of mediation services in Hong Kong SAR, China, following the October 2007 policy address of Donald Tsang, the then–chief executive of Hong Kong SAR, China, “to map out plans to employ mediation more extensively and effectively in Hong Kong in handling higher-end commercial disputes and relatively small scale local disputes.”a The working group published its report in February 2010 with 48 recommendations that cover three policy areas: ■■ Training and accreditation ■■ Public education and publicity ■■ Regulatory framework for mediation In relation to the area of legal framework, Recommendation 33 suggests the introduction of a Mediation Ordinance and 15 recommendations deal with various aspects of the proposed Mediation Ordinance. After the report was published, a mediation task force was established to implement the policy. Once the work of the task force was complete, the Department of Justice under the subsequent secretary for justice, Rimsky Yuen, set up the Steering Committee on Mediation to continue ongoing mediation policy work in Hong Kong. a. Department of Justice, Hong Kong Special Administrative Region, “Report of the Working Group on Mediation” (Hong Kong–SAR, China: February 2010), para. 2.1. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER ONE 5 CHAPTER TWO Regulatory Landscape CHAPTER NUMBER CHAPTER Chapter Title: TWO Chapter Title Chapter Regulatory Title Landscape Mediation is often thought of as a process that is connected to the courts, and this connection certainly can be the case. However, mediation is also the product of private business–based initiatives, as figure 2.1 and comments demonstrate. THE REGULATORY LANDSCAPE FOR MEDIATION DRAWS ON THE PUBLIC AND PRIVATE SECTORS A number of key points need to be made in relation to figure 2.1: ■■ The range of private sector as well as public sector initiatives offers much wider scope for mediation and other mediation interventions Each model has than is often thought to be the case. different features, and ■■ Neither approach is better than the other. Each model has different effective projects need to features, and effective projects need to consider which model consider which model offers offers potential for maximum benefit in a given context. The central argument for private sector involvement in mediation potential for maximum reforms is that it maximizes the scope and application of interventions benefit in a given and hence its likely effectiveness. Private sector participation also context. involves mediation users or potential users in the reform process, thus increasing awareness and use of mediation. ■■ The overlap area of the public and private sectors is also critical and may generate particular effects. The area offers opportunities for each sector to enhance implementation of mediation in the other. For example, a court (public body) may have a mediation referral program that refers cases to private sector mediators. Here, the public and private sectors work together. This practice is called the court- related mediation market model, and it is discussed with examples subsequently in this chapter. At the same time, note that mediation regulatory projects can still be effective whether they focus exclusively in the private or public sector. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER TWO 7 Figure 2.1: Interrelation of private business–based and public court–based mediation initiatives Stand-alone mediation business initiatives, Mediation projects as part of the judicial and unconnected with the judicial system legal systems reform programs Mediation Mediation as a as legal business reform tool The interrelationship between public and private sector mediation initiatives includes the following: • Mediation business—based initiatives build demand for mediation systems in judicial reform programs. • Mediation court—based initiatives create a context in which private sector awareness of mediation may be increased. • Each creates a context in which the other gains credibility. Source: Adapted from IFC (International Finance Corporation). 2011. Alternative Dispute Resolution Guidelines. Washington, DC: IFC, 6. ■■ It follows that properly diagnosing the private and CENTRALIZED ACCESS TO public sector possibilities and the enhancement MEDIATION IN THE MEDIATION that each might lend to the other is important in LANDSCAPE developing mediation regulatory interventions. Court-related mediation (represented by the two top quadrants in figure 2.2) indicates a trend toward THE MEDIATION a centralized approach to mediation with the court as the central access point for mediation services. LANDSCAPE The primary distinction in court-related mediation Building on the private–public dichotomy, an programs is whether providing mediation services overview of the regulatory landscape around the is considered to be (a) an integral part of the justice world suggests four primary access points for system and therefore a function of the court (the mediation. In figure 2.2, the vertical axis represents justice model) or (b) an emerging private sector the nature of distribution of mediation services from marketplace for resolving disputes with the court centralized to decentralized. The horizontal axis outsourcing mediation cases (the marketplace represents the balance between private marketplace model). input and public government input into mediation services for regulation, financial, and other COURT-RELATED MEDIATION: support. The diagram identifies and characterizes JUSTICE MODEL the multiple access points to mediation. The four quadrants represent different regulatory trends that In the justice model, the court refers parties to can be found in the mediation landscape. mediation. Usually, the mediation takes place in 8 REGULATORY LANDSCAPE Figure 2.2: The mediation landscape Centralized Court-related mediation: Court-related mediation: justice model market model Private and Public and deregulated regulated Private sector Community mediation  mediation model model Decentralized Box 2.1: Case illustration—Singapore In Singapore, the justice model was introduced as a pilot with district court judges as mediators. In 1995, the Primary Dispute Resolution Centre was established at the state courts. Now called the Centre for Dispute Resolution, it provides alternative services for all court cases. Mediating judges, or settlement judges, are trained in interest-based mediation and do not hear trials; instead, they specialize in mediation. Surveys indicate a settlement rate of more than 85 percent and high levels of satisfaction with judicial mediation. This court-based mediation model was free for litigants until May 2015, when fees were introduced at S$250 per party for district court mediation. With the civil jurisdiction of the district court ranging from S$60,000 to S$250,000, S$250 is a small amount compared to the value of the disputes. The amount is affordable—but it is a sufficiently serious amount for parties to settle their dispute out of court. Overall, the model can still be characterized as the justice model because mediation is seen as an integral part of the justice system and therefore a function of the court. Note that mediation services are still free for all other nondistrict court disputes (magistrate’s court claims under S$60,000, claims for harassment, and others). When mediation results in settlement, such settlements may be directly enforceable as court orders. a court building and is conducted by court-based law) jurisdictions. However, some common law mediation practitioners. The mediators are drawn jurisdictions, such as Singapore, also feature this from the judiciary, court personnel, panels of model (box 2.1). mediators attached to the court, or a community mediation organization. The mediators are chosen COURT-RELATED MEDIATION: and appointed by the court and the costs of the MARKETPLACE MODEL mediation are treated as costs of the justice system. Examples of the justice model of court- By contrast, the marketplace model represents a related mediation can be found in Germany, parts private form of court-related mediation, in which of Scandinavia, Slovenia, and other (mainly civil the court outsources mediation services. The MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER TWO 9 mediators are typically not employed by the court government support with a decentralized approach and are members of a panel of court-approved (box 2.3). In this model, mediation is widely mediation service providers who set their own fees accessible through community-based mediation that the disputants pay. Thus, the marketplace model organizations and other community organizations, promotes a straightforward system in which the user such as shelters for refugees and women, legal pays—when the user pays, the user has a choice. centers that are government sponsored, legal aid, Accordingly, the parties select mediation service and the police. Mediators include volunteers, providers from the court panel. In most cases, the employees of community mediation organizations, parties are also free to agree on a mediation service and freelance mediators working on contract. provider who is not on the panel. The marketplace Typically, disputants do not pay for the service. model of court-related mediation originated in Where mediation services are not volunteered, common law jurisdictions, and examples can be the government carries the costs. Although there found in Australia; Canada; China; Hong Kong is great variety in community mediation practice, SAR, China; the United Kingdom; and the United most practice models follow an interest-based or States. This model can also be found in some civil transformative approach. law jurisdictions as the following case illustrations show (box 2.2). PRIVATE MEDIATION DECENTRALIZED ACCESS TO The private mediation quadrant represents the MEDIATION IN THE MEDIATION combination of a decentralized and a private and LANDSCAPE deregulated approach (box 2.4). In this area, private The lower two quadrants of the mediation landscape sector organizations and freelance mediators offer (as shown in figure 2.2) indicate a move away from fee-for-service mediation. Mediators represent a the courts and away from centralization. wide variety of professions with a corresponding range of qualifications that depend on organizational COMMUNITY MEDIATION or industry requirements and standards. The community mediation model represents a combination of a high degree of regulation or Box 2.2: Case illustrations—Marketplace models In Bosnia and Herzegovina, a court-related mediation marketplace model was introduced. Mediations are conducted by mediators in a center outside of the courts. However, initial training and education in mediation is free to judges as well as to lawyers and others outside the courts to encourage understanding and awareness. Such training and education also encourage referrals by court. In Hong Kong SAR, China, a court-related mediation marketplace model operates with Practice Direction 31 requiring prelitigation mediation in most civil cases. Parties can obtain mediators privately or through a range of mediation institutions. In addition, the courts house the Joint Mediation Helpline Office (JMHO). The JMHO has been set up by eight mediation centers with the support. The JMHO manages a list of mediators and offers information about mediation and mediators to the general public. 10 REGULATORY LANDSCAPE HYBRID MODELS with the support of the government. In this case, industry bodies (such as telecommunications, The mediation landscape (figure 2.2) is a model franchising, construction, banking, and finance) that helps classify different types of access points refer disputes to a private mediation institution; for mediation. As mediation practice develops and however, the parties remain free to mediate outside becomes increasingly sophisticated, hybrid models of the scheme if they so wish. The intention of such borrow from different quadrants (box 2.5). For schemes is to boost the use of private mediation. example, industry mediation schemes can develop Whereas such schemes may be private in their legal form, they usually have the support of the Box 2.3: Case illustration—Bangladesh In Bangladesh, a community mediation program uses a multitier structure of village mediation committees to deliver informal nonbinding mediation services. The program is built on an existing traditional dispute resolution system and on a system of educated and trained women mediators to increase access to the services for female members of the community. Community mediation services can help resolve (a) commercial disputes in which businesses operate at the village level or (b) construction disputes that involve members of a village and land rights issues. Box 2.4: Case illustration—Private mediation In countries such as Australia, Canada, the United Kingdom, and the United States, the private commercial mediation sector is strong and still growing.a Encouraged through many years of court- referred mediation on the marketplace model, private mediation of commercial disputes is now well developed. Parties can access private mediation service providers in numerous ways, including the following: ■■ Directly through word of mouth or the Internet ■■ Through their private lawyers or in-house counsel ■■ Through dispute resolution clauses ■■ In an arbitral framework and processb a. For more information on the dissemination of mediation in various countries and fields, see Klaus J. Hopt and Felix Steffek, “Mediation: Comparison of Laws, Regulatory Models, and Fundamental Issues,” in Mediation: Principles and Regulation in Comparative Perspective, ed. by K. J. Hopt and F. Steffek (Oxford, U.K.: Oxford University Press, 2013), 94–96. b. Christian Bühring-Uhle, Lars Kirchhoff, and Gabriele Scherer, Arbitration and Mediation in International Business, 2nd ed. (Alphen aan den Rijn, Netherlands: Kluwer Law International, 2006), 108–109, and Christian Bühring-Uhle, Gabriele Scherer, and Lars Kirchhoff, “The Arbitrator as Mediator: Some Empirical Insights,” Journal of International Arbitration 20 no. 1 (2003): 81–88. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER TWO 11 government, at least at their commencement. In Another hybrid model involves a central government addition, the industry schemes are usually more authority (not a court) that refers disputes to an centralized than decentralized in the sense that industry body equipped to conduct mediations. This an industry body refers to one private mediation hybrid model is similar to the marketplace model of organization. court-referred mediation, except that the referrals come from a noncourt entity. Box 2.5: Case illustration—Hybrid models In Hong Kong SAR, China, mediation to resolve investment disputes enjoyed high-profile media coverage in the Lehman Brothers–related minibond disputes.a After the collapse of Lehman Brothers, about 48,000 investor who had bought HK$20 billion in investment products issued or linked to Lehman Brothers complained to the Hong Kong Monetary Authority (HKMA) about the banks that sold them the products. In 2008, the HKMA appointed the Hong Kong International Arbitration Centre (HKIAC) as the service provider for the Lehman Brothers–related Investment Products Dispute Mediation and Arbitration Scheme. The HKMA referred more than 1,000 cases involving 16 banks to the HKIAC. Most disputes were settled within a week of appointment of the mediators, and the mediations did not exceed five hours. Financial Services and the Treasury Bureau proposed establishing the Financial Dispute Resolution Centre (FDRC) in Hong Kong SAR, China, to specifically handle financial disputes.b The FDRC came into operation in 2012 as an independent and impartial organization administering the Financial Dispute Resolution Scheme (FDRS). Financial institutions authorized by the HKMA and licensed by the Securities and Futures Commission are members of the FDRS administered by the FDRC.c In 2007, the Hong Kong Mediation Council introduced a pilot scheme for mediation of low-value construction disputes. The pilot ran for a year until August 31, 2008, and was then extended to August 31, 2009.d Under this pilot, mediation was provided by an accredited mediator pro bono—or no fee— for up to eight hours for disputes up to HK$3 million. A mediator fee of HK$1,500 per hour was borne by both parties equally (unless otherwise agreed) for mediation time beyond the eight hours. More recently, the pilot scheme has been replaced by the Construction Mediation Scheme, which deals with construction disputes of differing values. The scheme aims to encourage and facilitate wider and further uses of mediation, and it is administered by the HKIAC.e a. Bonnie Chen, “Mini-bond Investors Urged to Try Mediation,” The Standard, March 26, 2009. b. Financial Services and the Treasury Bureau, “Proposed Establishment of an Investor Education Council and a Financial Dispute Resolution Centre” (Consultation paper, Hong Kong government, February 2010), http://www.gov.hk/en/residents /government/publication/consultation/docs/2010/consult_iec_fdrc_e.pdf. c. See FDRC website at www.fdrc.org.hk. d. Hong Kong Mediation Council, Hong Kong International Arbitration Centre, brochure, http://worldsmeexpo.hktdc.com /pdf/2011/SMEForum/Dec_3/46/HFLeung.pdf. e. This case illustration is adapted from Nadja Alexander, The Hong Kong Mediation Manual (Hong Kong SAR, China: Lexis Nexis 2014). 12 REGULATORY LANDSCAPE SUSTAINABLE DIVERSITY IN THE the continued development of mediation processes MEDIATION LANDSCAPE and programs through different private and public sectors and societal and cultural groups. In addition, Countless variations of mediation practice can be a relatively balanced distribution of mediation found in the four quadrants. Whereas mediation services indicates a broad range of access points practice often has a starting point in one of to mediation. Sustainable diversity is essential for the quadrants, advanced mediation jurisdictions the continued attractiveness of mediation as an generally show a representation of mediation adaptable and innovative alternative to traditional programs in at least three of the four quadrants (box court procedures. 2.6). Arguably, such representation is a reflection of Box 2.6: Case illustration—Australia Australia offers an example of a jurisdiction that features access to mediation in all four quadrants. Mediation commenced in the early 1980s through a variety of community justice initiatives (community mediation model) focusing on neighborhood and family disputes. In the early 1990s, formalized state court mediation schemes were introduced around the country using the court-related mediation marketplace model. The federal court of Australia offered—in addition to the marketplace model—mediation conducted by senior court registrars (court-related mediation justice model). In this model, mediators are not judges but full-time court employees who are trained in interest- based mediation and specialize in mediating in the court. Many specialized quasi-judicial tribunals in Australia (for example, the Australian Administrative Tribunal) also offer a version of the justice model. The final model to develop in Australia has been private sector mediation (for example, private prelitigation commercial mediation). Whereas private mediation has long been offered, the demand for it has varied. The introduction of the court-related mediation marketplace model helped boost private mediation. In 2015, a high level of public awareness and a proliferation of industry- based schemes helped develop the private mediation sector. Now that we have mapped out the regulatory is time to start thinking about the parameters of a landscape for mediation, including the type of access “regulatory project” for your jurisdiction. points for mediation services that are available, it MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER TWO 13 CHAPTER THREE Regulatory Project CHAPTER NUMBER CHAPTER Chapter Title: THREE Chapter Title Chapter Regulatory Title Project WHY DO WE NEED A DISPUTE RESOLUTION POLICY? As indicated previously, policy refers to a strategy or a plan—and it may include a set of principles—proposed by a government, an institution, or an organization. What is a good dispute resolution policy, and what does it aim for? A dispute resolution policy refers to a plan and a guiding set of principles to introduce and then to roll out different forms of dispute resolution. Such a policy aims for the resolution of conflicts such that the legitimate interests of the parties involved are satisfied. Why are informal negotiations and formal court proceedings not sufficient to achieve this goal? Different parties have different interests What is a good and are involved in different conflicts. For some, negotiations or court dispute resolution proceedings are the best way forward. For others, however, alternative policy, and what does it approaches are better suited. Examples of alternative approaches aim for? A dispute resolution are arbitration, conciliation, and mediation. policy refers to a plan and a guiding set of principles to Modern dispute resolution policies offer a set of different dispute resolution mechanisms with varying characteristics to fulfill the introduce and then to roll differing interests of the citizens in dispute resolution. The availability out different forms of of sophisticated dispute resolution increases economic prosperity dispute resolution. and justice. Economic efficiency will rise when the parties can choose a mechanism that solves their dispute for the lowest cost and creates the most favorable benefits. Policies that permit and facilitate dispute resolution regimes to fulfill the legitimate interests of citizens and to reject wishes that lack legitimacy create the foundations for achieving justice. In short, good dispute resolution policy is an essential building block for a prosperous and just society. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER THREE 15 WHY DO WE NEED A FROM GOOD POLICY TO MEDIATION POLICY? GOOD REGULATION Empirical research shows that citizens consistently Better regulation is one way to address poor employ dispute resolution mechanisms that are decision-making behavior by those involved in not suitable for them—that is, the mechanisms do disputes and imperfect legal rules and standards. not reflect their real interests. For example, parties We need to establish what kind of regulation might turn to the court to solve their dispute even promises the best results. Possible regulatory tools though both parties prefer to control the outcome are legislation, ministerial instruments, court rules, and prefer to keep the dispute private. Why does professional self-regulation, codes, and contracts. this happen? Reasons vary. Sometimes traditional As a first step, consider the following: practices or advisers who favor trials push the ■■ Who are the interested stakeholders? parties toward the courts even though mediation ■■ What is the general framework for dispute would better suit their interests. Sometimes the resolution processes? regulatory framework favors one dispute resolution ■■ What are the principles that should guide the mechanism without a good reason. For example, regulatory policy? sometimes the way costs are regulated lures the parties into litigation even in situations in which As a second step, regulatory principles should mediation would be cheaper both for the parties and define the following: the state. ■■ Scope of a regulatory scheme ■■ Regulatory actors In addition, the existing regulation of mediation ■■ Target audience may not be optimal. So, even if the parties manage ■■ Regulatory instruments available to steer their dispute to the right mechanism, the ■■ Function of regulation outcome might be inefficient and unjust. A good ■■ Type of rule or standard to be enunciated mediation policy helps to avoid these problems ■■ Method to match function to form relating to choice and quality (box 3.1). We address these issues in turn. Box 3.1: Example—Why we need mediation A 2007 study by the United Kingdom’s National Audit Office collected statistical data for family disputes in the years 2004 to 2006.a According to the study, the average costs of mediation were £752, whereas court proceedings accounted for more than twice as much—£1,682. Assuming that the state provides financial assistance for mediation as well as for court proceedings, this finding meant that aggregate costs amounted to almost £74 for the taxpayer because mediation was not used in appropriate cases. Also, the mediations covered by the study were resolved more quickly than court proceedings were. The mediations needed an average of 110 days, while the court proceedings lasted an average of 435 days. a. National Audit Office, “Legal Aid and Mediation for People Involved in Family Breakdown”—Report by the Comptroller and Auditor General, London, March 2, 2007, https://www.nao.org.uk/report/legal-aid-and-mediation-for- people-involved-in-family-breakdown/. 16 REGULATORY PROJECT STAKEHOLDERS: WHO improve the quality of mediation proceedings are valuable inspirations for policy making. The claims IS INTERESTED AND to income and professional working conditions WHY DO THEY THINK IT entail difficult questions of creating a cadre of IS IMPORTANT? mediators and the distribution of income between all those involved in dispute resolution. PRINCIPAL STAKEHOLDERS The principal stakeholders of mediation policy are the parties of an ongoing or future conflict. They In comparison with court proceedings, are affected by the conflict, and their interests the statistical research available supports should guide the regulation of dispute resolution. the expectation of cheaper and faster The parties have a right of access to effective and dispute resolution through mediation. In fair dispute resolution, in particular in the form addition, empirical mediation research has of mediation. Mediation promises fair dispute proven remarkably high success quotas, resolution because its flexibility deals particularly notable procedural satisfaction rates and a well with the widely differing interests of the perceptible reconciliation function. parties. Cost and time efficiency are statistically proven strengths of mediation compared with other —Hopt and Steffek, Mediation (2013), 119 forms of dispute resolution. However, the potential interests of the parties go far beyond money and time. Such further interests are as follows: ■■ Durable resolution of the dispute AFFECTED STAKEHOLDERS ■■ Mutually beneficial agreements Further stakeholders are individuals who are not ■■ Individually tailored solutions involved in the mediation but are still affected. ■■ Integrative and constructive method of dispute Examples of such stakeholders are people close resolution to the parties (colleagues, other industry players, friends and supporters), judges, arbitrators, lawyers, INVOLVED STAKEHOLDERS notaries, and taxpayers. These stakeholders are The next set of stakeholders comprises all those often concerned about whether they will indirectly who are directly or indirectly involved in mediation: benefit or suffer from mediation. People connected the mediators and their professional associations, to the parties (for example, children of quarrelling advisers such as lawyers and experts, supporting parents) might prefer the nonconfrontational style of persons such as assistants and translators, and mediation, but they might fear agreements infringing the mediation trainers and their associations. The their protective rights. Judges, arbitrators, lawyers, experience of prior reform initiatives shows that and notaries might see the potential in contributing these stakeholders notably voice two sorts of to a balanced system of dispute resolution, for interests: (a) those concerning the quality of their example, by referring disputes to mediation or contribution to mediation proceedings and (b) advising parties in mediation. Other stakeholders, those concerning the income from and working however, might see mediation as a threat to their conditions of their occupation. The suggestions to share in the market for dispute resolution. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER THREE 17 FRAMEWORK: WHAT law to include nonlegal interests such as financial, relational, and other priorities of the parties3 ARE WE TALKING ABOUT? The final characteristic in the list emphasizes the interests of the parties over their legal positions as MEDIATION DEFINITION the basis of dispute resolution. It also stresses that mediation targets the social conflict between people Mediation is generally accepted to be a structured and that the law’s function is to contribute to the process comprising one or more sessions in which solution of this conflict. one or more mediators—without adjudicating a dispute or any aspect of it and with the goal of DISTINGUISHING MEDIATION enabling the parties to take voluntary responsibility FROM OTHER DISPUTE for resolving their dispute—assist the parties to do any or all of the following: RESOLUTION MECHANISMS ■■ Identify the issues in dispute. Regulating mediation requires distinguishing ■■ Explore and generate options. mediation from other forms of dispute resolution. ■■ Communicate with one another. How could one regulate without knowing what ■■ Reach an agreement regarding the resolution of one regulates? Yet, in the absence of a commonly the whole or part of the dispute.2 accepted terminology for dispute resolution, delineating the processes for dispute resolution from IMPLICATIONS OF THE one another remains challenging. Here, a functional DEFINITION approach is recommended to distinguish mediation from other ways to resolve disputes. A functional The free will of the parties is an essential element approach is less concerned with technical and of mediation. There is debate in some jurisdictions doctrinal details of different legal systems. Instead, whether initiating mediation can be mandatory in what matters are the effects and events that follow certain circumstances. However, there is consensus from legal rules in real life. Because the parties that neither the content nor the effect of a mediated are the principal stakeholders of dispute resolution outcome can be forced on the parties against policy, they should also be the focus of a functional their will. The free will of the parties entails the understanding of dispute resolution mechanisms. autonomy of the parties to bind themselves. This In other words, in explaining mediation and binding can take the form of a contractual clause distinguishing it from other processes, we will to try mediation should a conflict arise. It can also look at (a) dispute resolution processes from the take the form of a settlement agreement developed perspective of the parties and how they experience in mediation in which the parties bind themselves mediation and (b) other processes from a practical to a solution and its enforcement. point of view. Further, commonly shared characteristics of med- Against this background, dispute resolution mech- iation are as follows: anisms can be characterized using the following ■■ Decision making lies with the parties and not the features: mediator. ■■ Initiation control. Is each party’s consent needed ■■ The mediator is neutral. to initiate the dispute resolution mechanism? ■■ The mediator offers the parties expertise in ■■ Procedure control. Do the parties determine the communication and negotiation support. procedure? ■■ Mediation is conducted confidentially. ■■ Result-content control. Do the parties determine ■■ Mediation reaches beyond the strict letter of the the content of the result of the dispute resolution? 18 REGULATORY PROJECT This determination corresponds to whether the will be resolved and, if so, the content of such mechanism is evaluative, that is, whether the law resolution, for example, the substantive terms of or a third person evaluates the conflict. a settlement. ■■ Result-effect control. Is the parties’ consent ■■ Equality essentially requires treating similar needed for the result to be binding? situations the same. Party autonomy and equality ■■ Neutral choice control. Do the parties choose may conflict, with the result being that policy the neutral? decisions have to be made that will balance the ■■ Information control. Do the parties control interests affected. the disclosure of information? That is, is the ■■ Efficiency aims at maximizing the satisfaction of procedure private? interests of all involved at the least possible cost. Because the citizens expect that their affiliation By using these functional characteristics, essential to a society increases the realization of their mechanisms for dispute resolution can be interests, efficiency is an important element of distinguished, as shown in table 3.1.4 justice. Hence, the cost-benefit relationship is relevant for policy making in the field of dispute resolution and of mediation, in particular. FOCUS: WHAT ARE THE Consequently, the design of dispute resolution mechanisms may reflect that certain mechanisms RELEVANT CRITERIA? are exceptionally well suited for specific types of disputes. POLICY PRINCIPLES Three principles of particular relevance for USER INTERESTS mediation policy are party autonomy, equality, and The conduct of mediation proceedings depends on efficiency. the parties’ wishes. Therefore, mediation policy ■■ Party autonomy places the parties at the center makers should listen to the conflicting parties and of dispute resolution through mediation. The understand their interests. Empirical surveys can parties are responsible for their dispute as well as help to grasp what the citizens want from dispute for being in a position to resolve it. The mediator resolution providers. One example is the Inter- and other third parties assist the parties in solving national Mediation Institute’s 2013 “International their dispute. As a consequence, the interests Corporate Users Survey.”5 On the question of of the parties determine whether the dispute whether mediation should be a compulsory Table 3.1: Dispute resolution mechanisms and their characteristics Parties together have... Initiation Procedure Result-content Result-effect Neutral choice Information control control control control control control Negotiation yes yes yes yes N/A yes Mediation yes yes yes yes yes yes Conciliation yes yes no yes yes yes Arbitration yes yes no no yes yes Adjudication no no no no no no Note: n/a = not applicable. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER THREE 19 procedural step in the conduct of all commercial success rate of mediation, understood as the disputes, in both litigation and arbitration, 48 per- conclusion of a settlement or similar agreement, cent of responders were in favor of mediation being is remarkably high. A cross-country comparison a mandatory step, whereas 37 percent disagreed and reveals success rates of more than 50 percent, often 15 percent were ambivalent. As its title indicates, around 75 percent or even higher.6 Mediation does the cited survey refers to corporate users only. equally well if the understanding of a successful Hence, it does not say anything on the interests mediation is not limited to a successful conclusion of noncommercial parties, such as consumers. of a settlement but is extended to the satisfaction This insight cautions against simplifying and of the parties with the process. Cross-country overextending the result. data shows satisfaction rates of the parties of 80 percent and higher.7 This finding translates into INTERNATIONAL EMPIRICAL high implementation rates of mediation settlement FINDINGS agreements.8 It seems that the reconciliation effect of mediation leads to more favorable implementation A summary of the empirical findings available rates of such agreements compared with court shows that mediation is a valuable method for orders. resolving disputes and is worth promoting. The 20 REGULATORY PROJECT CHAPTER FOUR Regulatory Principles CHAPTER NUMBER CHAPTER Chapter Title: FOUR Chapter Title Chapter Regulatory Title Principles WHAT IS THE SCOPE OF THE PROPOSED REGULATORY PLAN? Select a regulatory plan that is general, sector specific, or integrated (table 4.1). Table 4.1: Scope of regulatory plan Jurisdictions with regulatory Regulatory plan Description plan adopteda 1. General General mediation laws extend to Austria; Germany; Hong Kong SAR, China; all mediation or mediators in a given Japan; Samoa jurisdiction. 2. Sector specific Sector-specific regulation refers to Australia, France, the United Kingdom, the laws dedicated to mediation in a United States specific industry, court, mediation program, area of law, or other defined context. 3. Integrated Integrated mediation laws focus on Australia (in relation to family, farm debt, a particular sector; however, they and franchising disputes, among others) are not stand-alone laws. Integrated Californian Evidence Code (ss  1115–1128) in laws are incorporated into general relation to mediation evidence regulatory instruments dealing with Many jurisdictions, including Australia; a particular topic, for example, when Belgium; France; Germany; Hong Kong SAR, court-referred mediation is covered China; the United Kingdom; and others have by the applicable civil procedure code, integrated regulation for court-referred court statute, or rules. mediation. Here the regulatory provisions are covered by the applicable civil procedure code, court statute, or rules. a. Note that jurisdictions may have more than one regulatory plan, for example, general regulation complemented with specific or integrated legislation for certain areas. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 23 WHO IS THE TARGET users of mediation services, or all of these audiences? See table 4.2. AUDIENCE? 2. Consider: The target audience is identified. Now, Once the regulatory plan (general, sector specific, consider to what extent there might be exceptions or integrated) is selected, it is time to identify the to the scope of the regulatory plan identified (table audience in further detail. 4.3). For example, a general regulatory plan may 1. Consider: Is the proposed regulatory plan not be intended to cover certain sectors, such targeting mediators, mediation service providers, as mediation of consumer disputes, workplace Table 4.2: Target audience Target audience Examples Mediators • Only mediators accredited under a national or other recognized scheme • Any person who holds himself or herself out to be a mediator and uses a written agreement to mediate • Any person who holds himself or herself out to be a mediator, regardless of whether he or she uses a written agreement to mediate • Other Users of mediation services • Individuals in dispute • Repeat players, such as –Businesses –Government departments –Professional advisers acting for parties in mediation • Others Mediation service providers • Courts (including referral bodies) • Law societies and bar associations • Dispute resolution organizations, such as arbitration and mediation organizations • Independent mediators • Others Others, please specify Table 4.3: Regulatory plans and exceptions Selected regulatory plan Examples of exceptions General • Consumer mediation • School mediation • Victim-offender mediation • Workplace mediation • Neighborhood and community mediation Sector specific: Identify the • Mediation in the financial sector sector • Exceptions may relate to cross-border financial mediation or mediations involving institutions listed in a schedule Integrated: Identify the • Family mediation to be integrated into the family law, generally sector • Exceptions may relate to –Mediations conducted by a nonqualified mediator under the legislation (other rules may apply here) –Mediations conducted by court staff (other rules may apply here) 24 REGULATORY PRINCIPLES disputes, neighborhood disputes, school disputes, actors for making mediation policy with a check or others. (√) in the middle column. If you are working on a particular regulatory project, then focus on the 3. Consider: Mediation is a dispute resolution regulatory actors relevant to the project. In the third process that operates on a stand-alone basis and column, provide further details about the regulatory also in combination with other processes that actors, such as the names of relevant departments, resolve disputes, such as arbitration and court organizations, individuals, their websites, and proceedings.9 Does the regulatory plan extend to contact details. mediation as a stand-alone process only, or, for example, will it extend to mediation that takes place in an arbitration or court proceeding? Will the REGULATORY FORM regulatory plan extend to mediation in one or more of the following circumstances? See table 4.4. Regulatory form is particularly important in relation to the diversity–consistency tension. Here, regulation is understood as inclusive. It includes WHO ARE THE positivist notions of law, such as legislation, RELEVANT ordinances, case law (juridification), and practice directions. It extends to forms of soft regulation, REGULATORY ACTORS? such as codes of conduct for mediators, institutional mediation rules, and other industry standards Regulatory actors are not limited to formal (codification and institutionalization), mediation lawmakers such as legislators. Worldwide, the pledges, and clauses. In addition, regulation by types of regulatory actors involved in mediation private contract and the market laws of supply regulation are far ranging. The previous subsection and demand play an important role in shaping the identified the categories of stakeholders who may regulatory landscape for mediation. See box 4.1 be interested in mediation policy. Stakeholders and box 4.2. involved in mediation policy making are referred to as regulatory actors. Table 4.5 identifies the types Generally, soft regulation is more flexible and of regulatory actors most commonly involved in responsive to changing circumstances than are hard making mediation policy. As you think about your forms of regulation such as legislation. In the early own jurisdiction, identify the potential regulatory Table 4.4: Options for regulatory plan Mediation as a stand-alone process not currently covered yes-------------not sure ----------no by legislation Mediation that falls within existing arbitration legislation yes-------------not sure ----------no Mediation that falls within other legislative frameworks, yes-------------not sure ----------no for example, court-referred mediation Processes similar to mediation, such as conciliation that is subject to existing legislation (Note that sometimes the yes-------------not sure ----------no distinction between mediation and conciliation is difficult to determine, yet it is very important.) MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 25 stages of contemporary mediation development, it of regulatory experts and are more adaptable to is useful to consider flexible and responsive forms changing circumstances as the professional field of of regulation along with traditional hard regulatory mediation develops. Table 4.6 outlines the different forms. The soft forms involve a greater range characteristics. Table 4.5: Types of regulatory actors Type of regulatory actor √ Examples Lawmakers Legislators Policy makers Relevant government’s department of justice or law Courts and judges General courts and specialist courts Lawyers Barristers, solicitors, legal practitioners, attorneys, and notaries Other professionals involved in Engineers, medical professionals, counselors, psychologists, dispute resolution social workers, financial and business consultants, and others Individuals, consumers, organizations, small firms, large Users corporations, and government departments Dispute resolution institutes Arbitration or mediation organizations Bar associations, mediator organizations, engineer associations, Professional organizations or other professional associations with mediator members Other Box 4.1: Did you know? A mediation pledge is a statement in which the signatories promise a principled approach to conflict resolution with a stronger focus on mediation. A mediation pledge can be part of a more general pledge for a systematic approach to dispute resolution with a focus on alternative dispute resolution; the general pledge is then called an ADR (alternative dispute resolution) pledge. Most often, such a pledge takes the form of a public statement. For example, a company may pledge to always consider and try mediation, if suitable, before going to court. Mediation pledges are being used in many countries, including France, Germany, Poland, Singapore, the United Kingdom, and the United States. 26 REGULATORY PRINCIPLES Table 4.6: Soft law versus hard law Soft law characteristics Hard law characteristics Flexible Fixed Not subject to strict rules of interpretation Subject to strict legal rules of interpretation Responsive to changing or evolving circumstances Limited scope to respond to changing or evolving circumstances Dispositive in nature, that is, usually binding on May be dispositive or mandatory in nature individuals by entering a contract such as an agreement to mediate Involve a wide range of regulatory actors and experts Involve a narrower field of regulatory actors and experts, particularly in the last stages of making a law final provisions encouraging parties to reasonably engage REGULATORY CONTENT in mediation before trial with penalty costs if they fail to do so.10 Here the principle of voluntariness in For content, different aspects of mediation can mediation applies to the agreement of a solution but be regulated. They fall into the following four not necessarily to the choice to attend mediation. categories: (a) triggering mechanisms, (b) process and procedure, (c) standards, and (d) rights and In contrast, civil law thinking often adheres to the obligations. notion that voluntariness in mediation extends to the choice to attend mediation or not. Therefore, there TRIGGERING MECHANISMS— are fewer requirements to attend mediation, and HOW IS DEMAND FOR mediation triggers are generally described as soft, MEDIATION INITIATED? such as in the awareness programs in Austria and Triggering mechanisms include court referrals Germany and in court referrals only with consent to mediation (voluntary, mandatory, and other of parties in France (box 4.3). As a result, mediation incentives), mediation information sessions, practice in most civil countries tends to lag that mediation clauses, legal requirements to mediate of common law countries. Of course, there are before litigating, corporate mediation pledges, and exceptions to the general trends—for example, civil mediation awareness programs. law in Italy with mandatory mediation—however, the differences in the general mindset between civil Transnational experience shows that most people and common law thinking remain relevant. are subject to the status quo bias—that is, they resist change and prefer the familiar. Therefore, PROCESS AND PROCEDURE— they are reluctant to embrace mediation without HOW IS THE MEDIATION incentives or triggers being present. In most PROCESS CONDUCTED? common law jurisdictions, a range of incentives— What procedures are used for (a) the internal from mediation information sessions to mandatory mediation process, (b) appointment of mediators, court mediation referrals (referral without consent (c) payment, and (d) administrative matters? of the parties)—is available to convince disputants Procedural regulation manages aspects of mediation to engage in mediation. In Australia; Hong Kong such as commencement, termination, protocols, and SAR, China; and the United Kingdom, there are MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 27 Box 4.2: Illustrations of regulatory form Legislation: The German Mediation Act 2012 establishes duties of mediators and rights of parties in mediation. Ordinance: The Hong Kong Mediation Ordinance regulates confidentiality and nonadmissibility. Framework regulation: The European Directive on Civil and Commercial Mediation is designed to achieve homogeny and predictability in mediations of commercial disputes. Court Practice Directions: Practice Direction 31 in Hong Kong SAR, China, requires parties to mediate before litigating when it is reasonable to do so. Court precedent (common law): Australia, Canada, the United Kingdom, and the United States have much case law on confidentiality, enforcement of mediated settlement agreements, mediation clauses, and other issues. Nonlegislative standards: The Australian National Mediator Approval and Practice Standards provide one example; also, the International Chamber of Commerce mediation rules are another example of a set of international institutional rules that can be incorporated into parties’ mediation arrangements by private contract. Over time, they have a standardizing, harmonizing, and normalizing effect. Private contract: Agreements to regulate many aspects of mediation, particularly in the absence of legislation on the topic, for example, rights and duties of participants and mediator, confidentiality, requirements for mediated outcome (for example in writing), and so on. Box 4.3: Case illustration—Austria The Austrian experience provides a useful example of what happens when triggering mechanisms are not considered in the regulatory plan. Initially, mediation initiatives focused on the training and regulation of mediators and on the aspects of the mediation process, with little effort to incentivize demand. Consequently, despite extensive quality legislation relating to mediators, very few mediations took place. Subsequent efforts have focused on triggering mediation through nonlegislative means— or soft triggering—such as awareness programs at courts. 28 REGULATORY PRINCIPLES selection and appointment of mediators. A global that most jurisdictions prefer to use nonlegislative review of mediation regulatory practice shows regulatory forms for internal process issues (box 4.4).1 1 Box 4.4: Case illustrations—Rules governing mediation In Hong Kong SAR, China, process primarily follows institutional rules, such as the Mediation Rules of the Hong Kong International Arbitration Centre and the Hong Kong Mediation Accreditation Association Limited Mediator’s Code of Conduct. When these rules are incorporated into mediation clauses and agreements to mediate, they become binding on the parties involved. The Hong Kong Mediation Ordinance (see box 1.2) does not deal with process, apart from a detailed definition of mediation that describes an interest-based process and a section expressly permitting foreign lawyers and nonlawyers to support parties in mediation. In France, internal mediation processes are regulated by the numerous codes of conduct and ethics drafted by different regional or national mediation centers in the country. Legislation on mediation deals with other aspects of mediation such as rights and obligations (see below). In the United Kingdom, there is little general legislation about cross-border mediation and no legislation on domestic mediation. Detailed rules on the internal process of mediation are contained in institutional mediation rules and agreements to mediate. Box 4.5: Case illustration—Mediation accreditation Mediator accreditation (certification) in Hong Kong SAR, China, is voluntary. Nothing legally prevents anyone who does not have accreditation from offering mediation services. This statement remains true even with the enforcement of the Mediation Ordinance 2013. (box 1.2) So why do people bother getting accredited? The answer lies in the power of industry and professional self- regulation. After its establishment in 2013, the Hong Kong Mediation Accreditation Association Limited (HKMAAL) quickly became the premier mediation accreditation body in Hong Kong SAR, China. At the time of this writing, more than 2,000 general accredited mediators are on HKMAAL’s panels. In Hong Kong SAR, China, the value of professional accreditation is recognized by the majority of stakeholders: mediators; users of mediation services (for example, litigants); and referring bodies, such as courts, professional associations, and dispute resolution organizations. Further, by adopting accreditation-friendly mediation rules and codes such as the Hong Kong Mediation Code, referral bodies and mediation users continue to encourage accreditation as a foundation for professional practice. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 29 STANDARDS—HOW ARE They have adopted the view that quality assurance MEDIATION PRACTITIONER through certification must be balanced with STANDARDS AND QUALITY the flexibility, diversity, and innovation that mediation promises. To this end, responsive ASSURANCE MEASURES regulation, achieved through standards of national REGULATED? mediator codes of conduct, with the buy-in of the The regulation of mediation practitioner standards mediation of community, was considered more is often referred to as professionalization. Such useful than legislative intervention. Thus the path regulation shifts mediation away from being an to professionalization in Australia; Hong Kong activity requiring life skills to one requiring SAR, China; and Singapore features uniform training, assessment, and certification. The nonlegislative certification standards (box 4.5). professionalization of mediation tells us who is Singapore has multilevel standards for entry-level in the “mediation club” and who gets to mediate. mediators and for more experienced mediators. Therefore, professionalization is also about who is not in the club and who does not get to mediate. In other jurisdictions, such as the United Kingdom and the United States, the mediation industry and Legislative solutions to professional certification profession have not been able to agree on uniform (also referred to as credentialing and accreditation) standards, although there have been attempts to are usually expensive and require government achieve such standards. organization or financing. In contrast, industry regulation is supported by the industry itself with Mediator certification requirements can be expertise, financing, and other matters. Current categorized into three elements: best practice trends focus on developing responsive ■■ Requirements regulatory solutions for professionalization issues. ■■ Attaining the standard Contrary to some civil law jurisdictions such as ■■ Maintaining the standard Austria and Slovenia, which passed legislation detailing accreditation standards, an increasing Requirements. What do candidates need to be number of jurisdictions are making a deliberate eligible for consideration as a mediator, even before choice to develop nonlegislative uniform standards they consider training? They should consider drawn from the mediation industry or profession. their age, level of education, field of education These jurisdictions include Australia; Germany; specialization, and work experience, and they Hong Kong SAR, China; and Singapore.12 should have no criminal conviction (box 4.6). Box 4.6: Case illustration—Mandatory threshold requirements ■■ Australia: A person must be of good character evidenced by a signed statement by two qualified witnesses. ■■ Austria: A person must be at least 28 years old and have no criminal convictions. Similar provisions exist in Portugal. ■■ Hong Kong SAR, China: A person must have three years of professional work experience. ■■ Russia: A person must have a university degree. ■■ Spain: A person must have a university degree or a superior professional background. 30 REGULATORY PRINCIPLES Attaining the standard. What training and continuing professional education, practice, and assessments do candidates need to reach the standard other requirements must mediators comply with? of a competent mediator and become certified as a To retain certification, mediators should consider mediator? Candidates must consider the number of continual professional development, mediation and training hours, the content of the training, and the co-mediation practice, mediation simulations, and style of training (for example, the number of role- observations (box 4.8). plays, the practical and written assessments, and the qualifications of trainers and coaches). See box 4.7. From a user’s point of view, the professionalization of mediation is a significant theme. It reflects the Maintaining the standard. What is required to consistency-diversity dilemma—that is, the need to maintain one’s certification as a mediator? Which balance standardized quality assurance with cultural Box 4.7: Case illustration—Training In most common law jurisdictions, including Australia; Canada; Hong Kong SAR, China; New Zealand; and the United States, mediation training often consists of 40 hours of specialized, interactive skills training followed by role-play assessment and, in some cases, a written assessment. Other jurisdictions, such as the United Kingdom, require fewer hours. In most civil law jurisdictions, training ranges from 90 to 400 hours conducted in three-day blocks over one to two years (for example, Austria, approximately 370 hours; Germany, approximately 150 hours; France, approximately 100 to 200 hours; Belgium, approximately 90 hours). Assessment includes theoretical and practical components and usually a number of live cases and reports on those cases. In civil and common law countries, once training and assessment have been completed, mediator candidates can apply for mediator certification (also called accreditation or credentialing). Some countries such as Australia and Austria require mediators to obtain professional indemnity insurance to secure a place on the panel. Box 4.8: Case illustration—Professional development Most civil and common law countries have continual professional development (CPD) requirements for mediators to retain their certification. Some jurisdictions also have practice requirements. ■■ Australia: CPD 25 hours over two years, plus mediation practice hours ■■ Austria: CPD 50 hours over five years ■■ Belgium: CPD 18 hours over two years ■■ France: No national standard; however, can be up to CPD 20 hours each year depending on certifying organization ■■ Hong Kong SAR, China: CPD 15 hours over three years MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 31 diversity. Business leaders, including Deborah RIGHTS AND OBLIGATIONS— Masucci, former head of American International HOW ARE RIGHTS AND Group Inc.’s Employment Dispute Resolution OBLIGATIONS OF PARTICIPANTS Program, have publicly endorsed the need for an (MEDIATORS, PARTIES, AND international pool of mediators who are recognized for competence, skill, and experience and who have LAWYERS IN MEDIATION) the backing of reputable organizations. REGULATED? Participants have rights and obligations during One organization established to meet this need mediation and after mediation. Participants is the public interest initiative, the International include mediators, parties, and lawyers. Rights and Mediation Institute (IMI). IMI operates with the obligations may be regulated in legislation, common support of mediation organizations around the law principles, court rules, codes of conduct, and world to certify international mediators on the private contractual arrangements. basis of its competency certification scheme and standards for training and assessment. The IMI Rights and obligations are typically the focus of recognizes that different mediation practices exist mediation legislation (for example, the Mediation and accommodates diverse mediation models in Act in Germany; Mediation Ordinance in Hong its standards.13 Quality assurance is offered not by Kong SAR, China; the Uniform Mediation Act standardizing practice but by using mechanisms in the United States) and general law principles such as peer and client review and a code of (for example, case law in Australia, Canada, professional conduct based on the overarching the United Kingdom, and the United States). principles of transparency, trust, competence, In addition, mediation rights and obligations confidentiality, and neutrality. The Singapore continue to be regulated through agreements International Mediation Institute is a regional cross- to mediate and institutional rules (for example, border mediation hub set up with the support of IMI. International Chamber of Commerce mediation It offers several levels of mediator recognition with rules and Singapore International Mediation Centre the highest level matching the IMI certification. mediation rules). Box 4.9: Regulatory case illustration—Duties of mediators ■■ Duty of impartiality: See the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Conciliation, article 6 (2). ■■ Duties in relation to conducting the process and advice giving: See UNCITRAL Model Law on International Commercial Conciliation, article 6 generally. ■■ Duties related to confidentiality: See UNCITRAL Model Law on International Commercial Conciliation, articles 8, 9, 10; Hong Kong SAR Mediation Ordinance sections 8, 9, 10; Singapore International Mediation Centre Mediation Rules, rule 6. 32 REGULATORY PRINCIPLES First, the duties of mediators will be considered. ■■ Rights and duties in relation to enforceability of In general, mediators are subject to the following mediation clauses, agreements to mediate and duties: mediated settlement agreements; and ■■ Impartiality (box 4.9) ■■ Duties related to confidentiality and mediation ■■ Providing disclosure evidence in subsequent proceedings: insider— ■■ Conducting the process and giving advice outsider confidentiality; insider—insider confi- ■■ Terminating the mediation dentiality; insider—court confidentiality (box ■■ Reporting 4.10). Box 4.10: Did you know? Three kinds of confidentiality The following tripartite classification of confidentiality covers the various situations of confidentiality in mediation: insider–outsider confidentiality, insider–insider confidentiality, and insider–court confidentiality. Insider–outsider confidentiality refers to a general duty of confidentiality in the face of outside parties. This classification means that those parties involved in a mediation (insiders) cannot make prohibited disclosures to people outside the mediation (outsiders). The duty can apply to the various participants in mediation, such as the parties, mediators, advisers, experts, interpreters, witnesses, and relevant support staff. The duty prohibits those participants from disclosing mediation information to outsiders or nonparticipants. An example can be found in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Conciliation, article 9.a Insider–insider confidentiality regulates the flow of information in mediation, especially in relation to private sessions—also known as caucuses—between the mediator and a party. As a matter of practice, mediators manage insider–insider confidentiality in one of two ways: the open communication approach or the in-confidence approach. In the former, information passed to mediators in private sessions is not treated as confidential unless specifically requested by the relevant party. The other approach, the in-confidence model, operates by treating all information disclosed privately as confidential unless otherwise indicated by the disclosing party. An example of the open communication approach can be found in UNCITRAL Model Law on International Commercial Conciliation, article 8. Insider–court confidentiality involves the rights and obligations associated with protecting these mediation communications from being legally discovered or admitted in evidence in court and arbitral proceedings. It is categorized as a specific form of insider–outsider confidentiality in which the court is the outsider. Technically, however, this area is not about confidentiality but rather about admissibility of evidence. Specifically, it is about the admissibility of mediation communications in evidence in court or tribunal proceedings. An example can be found in UNCITRAL Model Law on International Commercial Conciliation, article 10. a. See United Nations, UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use 2002 (New York: United Nations, 2004), http://www.uncitral.org/pdf/english/texts/arbitration/ml-conc/03-90953 _Ebook.pdf. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 33 Next, the duties of lawyers representing clients in ■■ To avoid breaches of confidentiality between mediation will be considered (box 4.11). Lawyers clients may be subject to the following obligations: ■■ To act in good faith toward other parties and ■■ To act in the best interests of the client lawyers ■■ To consider settlement if it may be in the client’s ■■ Duty to the court and the administration of justice best interests ■■ Duties associated with confidentiality Box 4.11: Regulatory case illustration—Duties of lawyers in relation to mediation ■■ Germany: Lawyers are under a general duty to advise clients on alternative dispute resolution in the process of establishing the most favorable way to solve a legal conflict. ■■ Italy: The lawyer’s duty to advise on mediation is reinforced by the possibility for the client to void the lawyer–client contract in case of noncompliance. ■■ Poland: Lawyers are obliged by law and a code of ethics to advise clients on the possibility of mediation. Box 4.12: Case illustration—United Kingdom As indicated earlier in the chapter in the discussion on mediation triggering mechanisms, parties in the United Kingdom may face cost sanctions for failing to reasonably engage in mediation. While this provision applies to premediation behavior, the British case of Earl of Malmesbury v. Strutt and Parkera suggests that the duty might extend to the mediation itself. In this case, the court considered the application of cost sanctions in relation to a party’s unreasonable behavior in mediation, arguably falling short of good faith participation in the process. The case dealt with a dispute in which the Earl ultimately prevailed in court, but the financial quantum awarded was significantly less than both his claim and his final offer at mediation. The judge, Justice Jack, made the following comments: [T]he claimant’s position at the mediation was plainly unrealistic and unreasonable. Had they made an offer which better reflected their true position, the mediation might have succeeded. The judge equated the behavior of a party who had agreed to mediate and then acted unreasonably with that of a party who unreasonably refused to mediate. Under the British Civil Procedure Rules of 1999, the latter behavior could be taken into account in cost determinations. Therefore, the court considered it appropriate to take the former category of behavior into account. In this case, both parties waived privilege so that evidence from the mediation could be considered in relation to the award of costs. a. See Malmesbury v. Strutt and Parker (2008) EWHC 424 (Q.B.), http://www.cedr.com/library/edr_law/Earl_of _Malmesbury_v_Strutt-and_Parker.pdf. 34 REGULATORY PRINCIPLES Depending on the legal system, parties will have ■■ The right to enforce a mediated settlement one or more of the following duties and rights: agreement ■■ A duty to engage in mediation if it is reasonable to do so Box 4.12 provides an example of a legal obligation ■■ A duty to participate in mediation in good faith to engage in mediation. Financial incentives for ■■ The right to commence court proceedings after parties to pursue mediation are addressed in box a mediation that failed to achieve a settlement 4.13. (litigation limitation periods are relevant here) Box 4.13: Did you know? Two models for dealing with costs and mediation There are two models for regulatory approaches to costs. They can be distinguished according to the type of incentives provided for the conflict parties. In the first regulatory model, a mediation costs rule that applies to the parties may never create costs for the state. This principle can be observed in the costs laws of the United Kingdom mentioned in box 4.12. There, a party that rejects an attempted alternative dispute resolution can be held liable for the costs of litigation even when it succeeds with the claim in court. On closer examination, this cost incentive is created only through a threatened redistribution between the parties rather than through monetary incentives provided for by the state. The second regulatory model aims at avoiding net costs for funding the court system (in particular, by avoiding unnecessary court cases). To reduce net costs for the treasury, however, countries that use this model provide cost incentives for mediation that lead directly to additional expenses for the state. For example, the costs laws of Sacramento County, California, provide for an initial financial grant for the first three hours of mediation. A rate of US$200 an hour is set for those first three hours of work by court-recognized mediators, and it is met by the court budget. The expectation is that this mediation incentive will avoid court cases that would create even greater costs for the treasury. In addition, a cost incentive in favor of mediation is the fact that the usual costs of mediation are lower than the usual costs of litigation and arbitration, without the state intervening to exert regulatory control. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 35 WHAT IS THE RULE OR HOW TO DETERMINE THE PRINCIPLE TO BE THE APPROPRIATE ENUNCIATED? REGULATORY MIX Now that you have considered the functions and There have been different approaches to mediation the form of the various rules in the regulatory regulation throughout the world. The three main plan, the rules or principles must be defined. When approaches are (a) extensive state regulation, (b) framing rules and principles, they can be general extensive private regulation, and (c) mixed models and abstract; or they can be concise, specific, and (table 4.10). targeted (table 4.7). Contemporary best practice models recommend a combination of private and public mechanisms in HOW TO MATCH regulated markets with a high level of responsiveness to needs, interests, and changes. Experts further THE FORM TO THE suggest that responsive regulatory mechanisms— CONTENT often associated with self-regulatory approaches and even formal framework approaches— Mediation regulation does not have to take the encourage performance beyond compliance (box same form. Different aspects of mediation can be 4.14). In other words, participation in determining regulated in different ways; that is, the aspects can regulatory measures does more than enhance take different forms. This section helps you work awareness, understanding, and compliance—it out how to match the regulatory form (see regulatory supports aspirations to achieve best practice in the form in chapter 3) to the regulatory content (earlier regulated market. in this chapter table 4.8). Now that you have gone through the regulatory planning process once, go back to the beginning and review (table 4.9). Table 4.7: Advantages and disadvantages of types of rules Framing rule Advantages Disadvantages General and abstract Can accommodate a wide range Fails to offer sufficient guidance of stakeholder interests and certainty in a range of diverse Offers some flexibility through sectors and situations scope for interpretation Concise, specific, and targeted Can be tailored to suit the needs May not accommodate unexpected of a specific group applications of the rule 36 REGULATORY PRINCIPLES Table 4.8: Guidelines for rules according to focus Ask yourself about the focus Use this guideline of the proposed rule Does the provision focus on If the goal is to encourage the use of mediation in a new mediation jurisdiction, encouraging parties to go then multiple triggering provisions that use a variety of regulatory forms are to mediation (triggering)? suggested. This triggering allows for multiple access points to mediation and, therefore, increases the accessibility to and use of mediation services. Where mediation use is low, consider using triggers with strong incentives or that are mandatory. Consider nonlegislative triggers as much as possible because they are less intrusive and easier to change as the mediation field develops. Does the provision focus on Consider using soft law forms, such as nonlegislative standards and institutional internal elements of med- rules, and also tailoring the process by using private contract. iation, such as process? Does the provision focus on In a jurisdiction where mediation is still new and developing as a profession, the quality and certification consider nonlegislative standards, such as national mediator certification of mediators? standards established by the major mediation organizations in the jurisdiction. This regulatory form offers flexibility as mediation develops as a profession. Legislative regulation can be introduced once the mediation profession has been established or when problems occur. Does the provision regulate These provisions link the mediation process and its participants directly to the rights and obligations legal system of the jurisdiction. Therefore, the three Cs—clarity, certainty, and of mediation participants consistency—are important. Mandatory provisions in legislation offer the three (mediators, parties, lawyers, Cs and cannot be overridden by institutional rules or clauses in agreements to and others)? mediate or by other contracts between the parties. Therefore, the rules remain clear, certain, and consistent, thus allowing lawyers and courts to interpret them in the same way over time. Alternatively, default provisions in legislation place parties in a position to amend statutory rights and duties of themselves or the mediator. This position supports party autonomy yet challenges the consistency of rights and obligations of participants in mediation. Table 4.9: Review Review Action Example Review the proposed If a mediation takes place in the framework of an arbitration procedure, will the regulation and take into arbitration law or the proposed mediation regulation apply? account existing dispute resolution regulation ( for Sections 33(3) and (4) of the Hong Kong Arbitration Ordinance, Cap 609, example, existing reg- address the management of information obtained from a party by an arbitrator ulation on arbitration) and acting as a mediator during mediation. The effect of these provisions is that potentially overlapping mediation proceedings conducted as a part of an arbitration or multitiered provisions. dispute resolution (MDR) foreseen in either section 32(3) or 33 of the Arbitration Ordinance are governed by the Arbitration Ordinance and not the Mediation Ordinance. From a practical perspective, this governance by the Arbitration Ordinance means that the confidentiality of mediation and admissibility of mediation communications as evidence may be regulated differently. The way confidentiality and admissibility are handled depends on whether mediation is conducted as part of an MDR process with the same person acting as mediator and arbitrator or with different individuals as mediator and arbitrator. Check assumptions about After identifying overlapping legislation, revisit exceptions to the scope of the the content of the regulation proposed law. in relation to its proposed scope and function and about the nature of the obligations contained in it. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 37 Table 4.10: Approaches to mediation regulation Approach Examples Extensive state regulation: In Austria, mediation of civil matters is intensively regulated by the Civil Law Mediation Refers to far-reaching Act (Zivilrechts-Mediations-Gesetz). This act is supplemented by the Civil Law state (legislative) man- Mediator Training Regulations (Zivilrechts-Mediations-Ausbildungsverordnung), datory regulation of which set out training requirements in binding form and with relatively extensive mediation. detail. Cross-border mediation is regulated in a separate law, which effectively implements the European Mediation Directive (EU-Mediations-Gesetz). In Bosnia and Herzegovina and Serbia, extensive mediation laws were enacted by the state and civil procedure codes amended to support the development of mediation and regulate its operation. Japan is a further example of this regulation model. In the field of conciliation and mediation, Japan has two general procedural law sources in statutory form, and subordinate legislative provisions supplement them. Arguments raised in favor of a high regulatory density are consumer protection, the need for state promotion of mediation, legal certainty, and the necessity to draw a line between mediation and professional legal services. Extensive private reg- In England and Wales, the legislature has largely restricted itself to creating cost ulation: Regulation of incentives for the use of mediation in general civil and commercial proceedings, mediation is largely left as well as to supporting it through obligations in proceedings. There is also the to stakeholders (such as interesting example of the Civil Mediation Council, a state-supported but privately parties, mediators, law- constituted organization that ensures a degree of unity and minimum standards yers, professional assoc- among private mediation associations by means of issuing a quality seal. iations) to create their The supporters of private regulation sometimes argue that mediation is as yet rules through contract insufficiently established or widespread for any need for regulation to be assessed and codes. and met. On the contrary, precipitate regulation would hinder the development of mediation by practitioners, academics, and associations involved. Comprehensive regulation of mediation is sometimes also rejected on grounds of an underlying incompatibility with the intrinsic nature of mediation as a discrete procedure outside civil litigation. Mixed models, options: In Germany, for example, regulation can provide for mediation by registered and Refers to a regulatory unregistered mediators with different legal consequences. mix whereby the state In Australia and the United States, the absence of a comprehensive national and the stakeholders can mediation regulatory approach combined with piecemeal development of sector- create choice by offering specific regulation through soft and hard law mechanisms offers diversity and different models and choice for informed users of mediation. options from which to choose. 38 REGULATORY PRINCIPLES Box 4.14: OECD quality and performance principles The Organisation for Economic Co-operation and Development’s OECD Guiding Principles for Regulatory Quality and Performancea provides a useful policy illustration. Adopted by the OECD Council in 2005, it endorses a regulation mix that promotes “innovation though market incentives and goal-based approaches” and is compatible with “competition, trade investment-facilitating principles at domestic and international levels.” These principles echo those of legal reform projects that promote mediation as a dispute management mechanism that provides benefits for trade and investment and economic growth and stability. They are also reflective of the principles of interest- based mediation itself. a. See http://www.oecd.org/fr/reformereg/34976533.pdf. MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FOUR 39 CHAPTER FIVE Success Factors and Pitfalls: How to Make It Work and What to Avoid CHAPTER FIVE CHAPTER Success NUMBER Factors and Pitfalls: Chapter How to Title: Make It WorkTitle Chapter and Chapter What Title to Avoid SUCCESS FACTORS Mediation offers attractive characteristics, namely (a) cost and time advantages, (b) high success and satisfaction rates, and (c) flexibility to maximize the fulfillment of the interests of the parties. Still, mediation policy and the regulatory context play an important role in providing an attractive environment for the parties to choose the dispute resolution mechanism that best suits their interests. Important success factors for the regulation of mediation are as follows: ■■ Institutional integration of mediation. The challenge is to design dispute resolution institutions that guide conflicts to mediation if the mechanism is best suited to satisfy the interests of the parties (box 5.1). ■■ Enabling mediation law. Mediation policy should provide a reliable Mediation framework without limiting the flexibility of mediation and by offers attractive putting mediation on an equal footing with other dispute resolution mechanisms. This policy applies to both private and judicial characteristics, namely mediation. (a) cost and time advantages, ■■ Information. Many stakeholders suffer from information (b) high success and satisfaction deficits. By improving stakeholders’ understanding of the rates, and (c) flexibility to characteristics of the dispute resolution mechanisms available, maximize the fulfillment the decision making of the parties, lawyers, judges, in-house of the interests of the counsel, and others will be improved. parties. ■■ Incentives to counter predictable human error. Regulatory incentives and other impulses can influence human behavior in dispute resolution and can be an effective strategy to counter parties from making choices that potentially are not in their interests. Such incentives, even if they generate costs, are often a less expensive solution for public finances compared with funding a court system that does not always fit the conflict needs of the parties (box 5.2). MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FIVE 41 Box 5.1: Institutional integration An example of institutional integration of mediation can be illustrated by judges screening incoming cases on the basis of a questionnaire. The questionnaire asks the parties to reveal mediation indicators. Such indicators are characteristics of the dispute that show whether it is suited for mediation. If the court considers the case suited for mediation, the court will issue a recommendation to the parties to try mediation. Box 5.2: Incentives Examples of incentives to manage decision deficits of parties affected by disputes include the following: ■■ A duty for lawyers to discuss (and document) the suitability of dispute resolution with their clients ■■ A requirement on parties to engage in mediation before court when it is reasonable to do so ■■ A subsidy for the first hour of a mediation LESSONS LEARNED relatively little means or interest to engage in mediation, in particular certain groups of consumers In jurisdictions where mediation plays no role or or individuals with a weak negotiation position. only a minor role, “teething problems,” such as low- Care needs to be taken that such groups are not quality mediation processes, lack of information, systematically disadvantaged in mediation. weak institutional support, confidentiality problems, and abuse of mediation need to be overcome. The difficulty for policy makers is to solve those problems FITTING THE POLICY TO without suffocating mediation by overregulation. THE PEOPLE A key issue is to break the vicious circle of mutual obstruction: incomplete information leads to low Mediation policy should ideally be created with demand for mediation, which leads to the being a view to the specific environment. Such a view unattractive, which leads lawyers and judges to hold includes (a) the specific conflict culture, (b) the little respect for mediation. As a result, mediation is particular rules and standards of the jurisdiction, (c) rarely recommended to and chosen by the parties. the historical development of dispute resolution, (d) the established practices of dispute resolution, (e) In jurisdictions where mediation is firmly the unique moral guidelines, and (f) socioeconomic established, other problems are more prevalent. particularities. Particularly, the stage of development The danger is that well-meant regulation limits the of mediation in the jurisdiction plays an important flexibility of mediation through overly restrictive role. The stage will have an effect on the choice and formal rules. Another problem is to establish and content of regulation (if any). A blind transfer the correct level of protection for parties with of regulatory solutions from other legal systems 42 SUCCESS FACTORS AND PITFALLS: HOW TO MAKE IT WORK? WHAT TO AVOID? runs the risk of failure. Hence, this book attempts the diversity–consistency tension. Ultimately, to inspire and provoke questions, but it cannot offer regulating mediation is a creative act involving the a one-size-fits-all approach to regulating mediation. following: An interdisciplinary perspective is a good approach ■■ A cast of colorful regulatory actors representing to identifying the particularities of the mediation different interests in mediation environment to be regulated. The legal approach ■■ A broad range of regulatory form options can be complemented by ethical, economic, social, consisting of hard and soft law instruments psychological, historical, and other disciplines. offering differing levels of robustness and responsiveness The diversity–consistency tension is at the heart of ■■ Diverse regulatory themes with one of four the conversation about mediation regulation. The primary functions: triggering mediation tension needs to be sustained and managed rather processes, regulating the internal mediation than resolved. In the same way as mediators are process, setting standards for mediators, and trained to live with uncertainties and to expect the regulating rights and obligations of participants unexpected, so too must policy makers embrace in mediation MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER FIVE 43 CHAPTER SIX Regulatory Topics Checklist CHAPTER NUMBER CHAPTER Chapter Title: SIX Chapter Title Chapter Regulatory Topics Title Checklist In the following tables (tables 6.1–6.8), we provide checklists of regulatory aspects to consider when making decisions about establishing legal norms. The appearance of a topic on a list does not mean that regulation is recommended. Rather, it is merely a reminder of what to consider. Table 6.1: Fundamental structures Regulatory area Civil and commercial law, general laws governing mediation, specific regulation for particular types of disputes Dispute resolution act Integration of mediation and other dispute resolution procedures or specific laws in one act or separate laws Types of rules Mandatory, semimandatory (that is, only mandatory for one side) or dispositive statutes, regulations, codes, model agreements, and so forth Rulemaker Parliament, executive branch, courts, chartered associations, private mediation providers, independent institutions, parties, mediator Table 6.2: Mediation definition and procedure Definition of Differentiation from other types of out-of-court dispute settlement, mediation relationship with everyday attempts at dispute settlement, and activities of lawyers, psychologists, and so forth; confidentiality and mediator neutrality and impartiality as essential characteristics but not part of definition of mediation Structure and Regulation of mediation procedure, presence of advisers, personal course of mediation attendance, virtual mediation, duration of mediation procedure Mediator Regulation of agreement between the parties and the mediator, role of the mediator, regulation of selection and refusal of mediator, co-mediation, record keeping MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER SIX 45 Table 6.3: Mediation and court proceedings Relationship of mediation Common or differentiating rules for private, court-annexed, and judicial to court proceedings mediation; information of the court on the progress of the mediation Mediation before going to Inadmissibility of claim, enforceability of agreements to mediate, requirements on court lawyers to provide information and advise the parties, and so forth Court-initiated mediation Rights and obligations of courts to check for mediation suitability, rights and obligations to inform parties, rights and obligations to give directions to the parties; initiation of judicial or court-external mediation Changing procedures Rules to allow for an easy transfer from court proceedings to mediation or vice versa Table 6.4: Costs of mediation Cost incentives and Cost incentives in the form of direct state subsidies, redistributive cost sanctions sanctions for uncooperative parties Mediator fees Free market choice, state control, cost exemptions, and state subsidies Effects on court costs Independent calculation of court costs, reduction of court fees Distribution of mediation Regulation, contract costs between the parties Legal aid Conditions, connection to quality control, amount, contributions by mediators or their associations Table 6.5: Mediation and limitation and prescription periods Limitation and prescription Suspension during or restart of time periods after mediation Scope Legal claims, other rights (particularly substantive and procedural limitation and prescription periods), relative effect on the parties to the mediation, possible effects on third parties, determination of affected claims (and other rights) Definition of start of Agreement to mediate, request to attend mediation when mediation is mediation compulsory, actual start of the procedure Definition of end of Statement of one party, both parties, and the mediator that the mediation mediation has failed; parties have reached agreement; treatment of interrupted and then restarted mediation Determination of start and Presumptions, determination by documentation obligations end of mediation 46 REGULATORY TOPICS CHECKLIST Table 6.6: Consequences of successful or failed mediation Agreement where New type of contract (declarative agreement) or use of existing contract types mediation has been (particularly settlement), extent and legal limits of agreement successful Implementing the Enforceability, enforcement procedures, competence for declaration of agreement enforceability, substantive checks (if yes, what is the standard or the benchmark?), application requirement (one or both parties?) Procedure where Transfer to court procedure, relationship to other forms of out-of-court dispute mediation has failed settlement Table 6.7: Confidentiality Legal basis State laws or contract, substantive law, and procedural law Relevant procedures and Court procedure, arbitration procedure, outside procedures situations Relevant persons Parties, mediators, legal advisers, translators, experts, judges involved, other third parties, assistants of all such persons Substantive law Discretion and other confidentiality duties Procedural law Right to refuse to testify, restrictions on parties to submit facts and evidence Scope Different types of information carriers and transmission versus the danger of “flight into mediation”; limitation to the mediation matter and to the parties of mediation Table 6.8: Professional laws of mediators Regulatory approaches Authorization model (official admission to practice as a mediator) Incentive model (everyone allowed to practice as mediator; however, favorable rules for the parties—concerning, for example, the confidentiality and the quality of mediation—only apply if the mediation is carried out by a registered mediator) Marketplace model (no public interventions in the professional law of mediators) Access to profession Quality assurance, training requirements, admission conditions, grounds for exclusion Lists of mediators Institutions administering the lists, contents of lists Professional practice Using titles, compulsory liability insurance (if yes, insured amount), continuing education duties, consumer protection, relationship to professional law of other groups (lawyers, notaries, and so forth) Institutions State oversight, private self-regulation, mixed solutions Mediators Neutrality/impartiality, duties, liability, rights MEDIATION SERIES: MAKING MEDIATION LAW | CHAPTER SIX 47 APPENDIX A: Particular Issues: Cross-Border and Online Mediation CHAPTER NUMBER APPENDIX A: Chapter Particular Chapter Title Title: Cross-Border Issues: and Online Chapter Title Mediation This appendix outlines particular issues of cross-border and online mediations. They are independent developments, cross-border and online mediations are also interrelated in practice. For example, it is not uncommon for some parts of cross-border mediations such as preliminary meetings to be conducted online or through telecommunications. Consider a dispute resolution clause signed in the Arab Republic of Egypt as part of a commercial banking contract by parties from Lebanon and France. The clause stipulates that the United Arab Emirates’ substantive law is to apply to the resolution of any dispute arising out of the contract and that mediation is to be the initial dispute resolution process. The mediator is from Switzerland, and she is subject to the applicable professional code of mediator conduct in Switzerland. The place of mediation is to be in London, and the British law on mediation (procedural law) prima facie applies to the mediation process. However, initial discussions between the mediator and the parties with their lawyers take place on videoconference using Internet The clause stipulates technology. that the United Arab Emirates’ substantive law This scenario shows the potential interaction of (a) different legal is to apply to the resolution of regimes and (b) online and international mediation. any dispute arising out of the contract and that mediation The following discussion outlines the main regulatory instruments that address cross-border and online mediations. is to be the initial dispute resolution process. CROSS-BORDER MEDIATION: REGULATORY INSTRUMENTS Mediation regulation first developed domestically. On a cross-border level, mediation regulation has become increasingly relevant. With the opening of more geopolitical borders and the rise in online transactions, the regulation of cross-border mediation is a highly topical matter. MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX A 49 A number of international bodies have been active In relation to family disputes, numerous cross- in creating cross-border regulatory instruments. border regulatory instruments exist. The Hague In 2002, the United Nations Commission on Conference on Private International Law has International Trade Law (UNCITRAL) published produced three relevant conventions. The first is the Model Law on International Commercial the Hague Convention on Parental Responsibility Conciliation (“conciliation” is used in the sense and Protection of Children,19 also known as the of mediation here), which has been adopted by Hague Convention 1996, which promotes the use 14 countries in 26 jurisdictions and continues to of mediation with respect to matters that fall under be influential in policy discussions worldwide. the convention (article 31). The Hague Convention In 2015, UNCITRAL determined to take up the on the International Protection of Adults is a sister task of developing a multilateral convention on convention reflecting much of the Hague Convention the enforceability of international commercial 1996 in the context of vulnerable adults. Finally, mediated settlement agreements with the goal of the Hague Convention on the Civil Aspects of further encouraging cross-border mediation. International Child Abduction also makes provision for mediation. In the European Union, council The European Directive on Mediation in Civil and regulations, directives, and recommendations have Commercial Disputes,14 which requires member been adopted that specifically relate to cross-border states of the European Union (EU) to regulate family mediation, reinforcing support for mediation aspects of cross-border mediation, has been in family disputes.20 implemented across the region. In addition, the EU policy has specifically addressed cross-border In 2007, the Permanent Bureau of the Hague mediation in consumer disputes. In 2005, the Conference on Private International Law released EU established the European Consumer Centres a feasibility study on cross-border mediation Network to inform customers of their rights and to in family matters. The study examines the assist in the resolution of cross-border complaints development of international family mediation and disputes.15 The European Commission issued practice and concludes with some suggestions for recommendations in 1998 and 2001 reinforcing future work on greater international cooperation its support for the use of mediation in cross- and communication about available mediators, border consumer disputes.16 The EU directive on mediation services, and national laws on family consumer alternative dispute resolution (ADR)17 mediation. Finally, the study suggests that the and the EU regulation on online dispute resolution Hague Conference continue to work toward (ODR)18 focus on rolling out a regulatory plan uniform or harmonized standards for mediator to address issues in consumer ADR—especially approval and practice and for laws that regulate in relation to online services. Together these mediation, specifically for incentives and regional regulatory instruments seek to respect the requirements to mediate, for confidentiality, and for diversity of mediation offerings while providing a the international recognition and enforceability of comprehensive regulatory coverage to ensure the mediated agreements.21 integrity of mediation processes and fair regulation of rights and obligations of those involved. 50 PARTICULAR ISSUES: CROSS-BORDER AND ONLINE MEDIATION ONLINE MEDIATION independently (that is, they are not connected to a legal or professional association), benchmarks AND DISPUTE and best practices are fragmented. To be effective, RESOLUTION: commercial ODR services must show economic REGULATORY vitality and security, and users must have faith in the governance structure regulating trade. Industry INSTRUMENTS and government need to implement a regulatory infrastructure that will allow flexibility for ODR Online dispute resolution (ODR) has grown out of providers while it unifies basic practices and the application of information and communication standards. This implementation has begun with technology to alternative ways to resolve disputes. regulatory instruments such as the following: A distinction can be made between traditional offline ADR, on one hand, and online dispute ■■ EU regulation on online dispute resolution22 resolution that represents a new generation of ADR ■■ EU directive on consumer ADR, which also processes, on the other hand. A major challenge extends to consumer ODR23 for the development of ODR is that service ■■ UNCITRAL draft procedural rules on ODR for providers lack a coherent infrastructure in which to cross-border electronic commerce transactions24 operate. Given that many ODR providers operate MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX A 51 APPENDIX B: Further Reading CHAPTER NUMBER Chapter Title:APPENDIX B: Chapter Title Chapter Further Title Reading ARTICLES Alexander, N. 2004. “Visualising the ADR Hoffman, A. 2007. “Mediation in Germany Landscape.” ADR Bulletin 7 (3): 46. and the United States.” European Journal of Law Reform 9 (4): 505–51. ———. 2014. “Nudging Users Towards Cross-Border Mediation: Is it Really About Hoffman, D. 2011. “Mediation, Multiple Harmonized Enforcement Regulation?” Minds, and Managing the Negotiation Contemporary Asia Arbitration Journal 7 Within.” Harvard Negotiation Law Review (2): 405–18. 16 (Spring): 297–330. Braithwaite, J. 1993. “Responsive Lande, J. 2010. “The Movement toward Regulation for Australia.” In Business Early Case Handling in Courts and Private Regulation and Australia’s Future, edited by Dispute Resolution.” Ohio State Journal P. Grabosky and J. Braithwaite. Canberra: on Dispute Resolution 24: 81–129. Australian Institute of Criminology. PwC (PricewaterhouseCoopers). 2013. Bühring-Uhle, C., G. Scherer, and L. “International Arbitration Survey 2013: Kirchhoff. 2003. “The Arbitrator as Corporate Choices in International Mediator: Some Recent Empirical Insights.” Arbitration.” Survey, PwC, New York. Journal of International Arbitration 20 (1): http://www.pwc.com/gx/en/services/ 81–88. advisory/consulting/forensics/international- arbitration-survey.html. Chen, B. 2009. “Minibond Investors Urged to Try Mediation.” Standard, March 26, 2009. Riskin, L. 1996. “Understanding Mediators’ Orientations, Strategies and Techniques: Haloush, H., and B. Malkawi. 2008. A Grid for the Perplexed.” Harvard “Internet Characteristics and Online Negotiation Law Review 1 (Winter): 7–51. Alternative Dispute Resolution.” Harvard Negotiation Law Review 13 (1): 327–48. MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX B 53 Sander, F., and S. Goldberg. 1994. “Fitting the Ariely, D. 2008. Predictably Irrational: The Hidden Forum to the Fuss: A User-Friendly Guide to Forces That Shape Our Decisions. New York: Selecting an ADR Procedure.” Negotiation Journal HarperCollins. 10 (1): 49–68. Berger, K. 2015. Private International Dispute Sander, F., and L. Rozdeiczer. 2006. “Matching Resolution in International Business. Negotiation, Cases and Dispute Resolution Procedures: Detailed Mediation, Arbitration, 3rd ed. Alphen aan den Rijn, Analysis Leading to a Mediation-Centered Netherlands: Wolters Kluwer Law & Business. Approach.” Harvard Negotiation Law Review 11 (Spring): 1–41. Bühring-Uhle, C., L. Kirchhoff, and G. Scherer. 2006. Arbitration and Mediation in International Steffek, F. 2009. “Mediation in Europa und Business, 2nd ed. Alphen aan den Rijn, Netherlands: der Welt—Rechtsvergleichende Forschung zur Kluwer Law International. Umsetzung der Mediationsrichtlinie.”  Zeitschrift für Konfliktmanagement 1: 21–25. Carroll, E., and K. Mackie. 2006. International Mediation: The Art of Business Diplomacy, 2nd ———. 2012. “Mediation.” In Max Planck ed. Alphen aan den Rijn, Netherlands: Kluwer Law Encyclopaedia of European Private Law, vol. International. 1, edited by Jürgen Basedow, Klaus J. Hopt, and Reinhard Zimmermann, 900–04. Oxford, U.K.: Goldberg, S., F. Sander, N. Rogers, and S. Cole. Oxford University Press. 2012. Dispute Resolution: Negotiation, Mediation, and Other Processes, 6th ed. New York: Walts Sussman, E. 2009. “The New York Convention Kluwer Law and Business. Through a Mediation Prism.” Dispute Resolution Magazine 15 (4): 10–13. Goldsmith, J. C., A. Ingen-Housz, and G. Pointon, eds. 2006. ADR in Business: Practice and Issues Across Countries and Cultures. Alphen aan den BOOKS Rijn, Netherlands: Kluwer Law International. Alexander, N., ed. 2006. Global Trends in Mediation, Hodges, C., I. Benöhr, and N. Creutzfeldt-Banda. 2nd ed. Alphen aan den Rijn, Netherlands: Kluwer 2012. Consumer ADR in Europe. Oxford, U.K.: Law International. Hart Publishing. Alexander, N. 2009. International Comparative Hopt, K., and F. Steffek, eds. 2013. Mediation: Mediation: Legal Perspectives. Alphen aan den Principles and Regulation in Comparative Rijn, Netherlands: Kluwer Law International. Perspective. Oxford, U.K.: Oxford University Press. Alexander, N., S. Walsh, and M. Svatos. The EU Mediation Deskbook. Forthcoming. Alphen aan den Ingen-Housz, A, ed. 2011. ADR in Business: Rijn, Netherlands: Kluwer Law International. Practice and Issues across Countries and Cultures II. Alphen aan den Rijn, Netherlands: Kluwer Law Andrews, N. 2012. The Three Paths of Justice: International. Court Proceedings, Arbitration, and Mediation in England. New York: Springer. Kirchhoff, L. 2008. Constructive Interventions: Paradigms, Process, and Practice of International Mediation. Alphen aan den Rijn, Netherlands: Kluwer Law International. 54 FURTHER READING McIlwrath, M., and J. Savage. 2010. International Convention on the International Protection of Arbitration and Mediation: A Practical Guide. Adults. 2000. The Hague. https://www.hcch.net/en Alphen aan den Rijn, Netherlands: Kluwer Law /instruments/conventions/full-text/?cid=71. International. Convention on Jurisdiction, Applicable Law, Menkel-Meadow, C., L. Love, J. Sternlight, and A. Recognition, Enforcement and Co-operation in Schneider. 2010. Dispute Resolution: Beyond the Respect of Parental Responsibility and Measures Adversarial Model, 2nd ed. New York: Aspen. for the Protection of Children. 1996. The Hague. https://www.hcch.net/en/instruments/conventions Parker, C., C. Scott, N. Lacey, and J. Braithwaite, /full-text/?cid=70. eds. 2004. Regulating Law, 1st ed. Oxford, U.K.: Oxford University Press. Council of Europe Parliamentary Assembly Recommendation (Recommendation 1639 [2003]) Poon, G. 2010. The Corporate Counsel’s Guide to adopted November 25, 2003. https://wcd.coe.int Mediation. Chicago, IL: American Bar Association. /ViewDoc.jsp?id=747751&Site=CM. Steffek, F., and H. Unberath, in cooperation with H. Genn, R. Greger, and C. Menkel-Meadow, eds. Directive 2008/52/EC of the European Parliament 2013. Regulating Dispute Resolution: ADR and and of the Council of May 21, 2008, on certain Access to Justice at the Crossroads. Oxford, U.K.: aspects of mediation in civil and commercial matters. Hart Publishing. Official Journal of European Union 136: 3–8. http://eur-lex.europa.eu/LexUriServ/LexUriServ. Thaler, R., and C. Sunstein. 2009. Nudge: Improving do?uri=OJ:L:2008:136:0003:0008:En:PDF. Decisions about Health, Wealth, and Happiness. New York: Penguin Books. Directive 2013/11/Eu of the European Parliament and of the Council of May 21, 2013, on alternative Trevor, M., and G. De Palo, eds. 2007. Arbitration dispute resolution for consumer disputes and and Mediation in the Southern Mediterranean amending European Council Regulation No. Countries, 2nd ed. Alphen aan den Rijn, 2006/2004 and Directive 2009/22/EC. http:// Netherlands: Kluwer Law International. eur-lex.europa.eu/legal-content/EN/TXT/?uri= CELEX%3A32013L0011. CATEGORIES OF LAW European Commission Recommendation on family mediation (Recommendation [98] 1) adopted LEGISLATION, EUROPEAN January 21, 1998. https://wcd.coe.int/ViewDoc .jsp?id=461347&Site=CM. UNION, AND INTERNATIONAL LEGAL INSTRUMENTS European Commission Recommendation on the principles applicable to the bodies responsible Civil Procedure Rules. Ministry of Justice, United for out-of-court settlement of consumer disputes Kingdom. (98/257/EC) March 30, 1998.  http://eur-lex .europa.eu/legal-content/EN/TXT/?uri=CELEX% Convention on the Civil Aspects of International Child 3A31998H0257. Abduction. 1980. The Hague. https://www.hcch.net /en/instruments/conventions/full-text/?cid=24. MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX B 55 European Commission Recommendation on the United Kingdom Ministry of Justice (England principles for out-of-court bodies involved in and Wales). Practice Direction to the Pre-Action the consensual resolution of consumer disputes Conduct and Protocols 4.7. Last updated July 28, (C [2001] 1016) April 4, 2001. http://eur-lex.europa. 2015. https://www.justice.gov.uk/courts/procedure- eu/legal-content/EN/TXT/?uri=uriserv%3Al32031. rules/civil/rules/pd_pre-action_conduct. Hague Convention of Private International Law, Feasibility Study on Cross-Border Mediation in CASE LAW Family Matters (General Affairs and Policy 2007). Halsey v. Milton Keynes General NHS Trust and Mediation Ordinance (CAP 620, Law of Steel v. Joy and Halliday [2004] EWCA Civ 576. Hong Kong). Accessed March 14, 2016. Malmesbury v. Strutt and Parker [2008] EWHC h t t p : / / w w w. l e g i s l a t i o n . g o v. h k / b l i s _ p d f . 424 (QB). nsf/6799165D2FEE3FA94825755E0033E532/ 41900F89AE6EA77648257A240054AF9F/$FILE /CAP_620_e_b5.pdf. INSTITUTIONAL RULES AND Regulation (EU) No. 524/2013 of the OTHER SOFT REGULATION European Parliament and of the Council of Cairo Regional Centre for International Commercial May 21, 2013, on online dispute resolution for Arbitration (CRCICA). 2013. “Mediation Rules.” consumer disputes and amending Regulation Cairo, CRCICA. http://www.crcica.org.eg/rules (EC) No. 2006/2004 and Directive 2009/22 /mediation/2013/crcica_mediation_rules_2013.pdf. /EC (Regulation on consumer ODR). http: //eur-lex.europa.eu/LexUriServ/LexUriServ European Code of Conduct for Mediators. Accessed .do?uri=OJ:L:2013:165:0001:0012:EN:PDF. January 3, 2016. http://ec.europa.eu/civiljustice /adr/adr_ec_code_conduct_en.pdf. UNCITRAL Model Law on International Commercial Conciliation, A/RES/57/18 (2002). General Authority for Investment and Free Zones. https://documents-dds-ny.un.org/doc/UNDOC “Mediation Rules.” Accessed January 3, 2016. /GEN/N02/538/98/PDF/N0253898.pdf? http://www.gafi.gov.eg/English/Howcanwehelp OpenElement. /Investors%20Disputes%20Settlement%20Center% 20Files/GAFI_rules_20_June_EN_FINAL[1].docx. UNCITRAL online dispute resolution for cross- border electronic commerce transactions: draft International Chamber of Commerce (ICC). procedural rules, A/CN.9/WG.III/WP.133 (2015). 2014. ICC Mediation Rules. http://www.iccwbo. http://daccess-dds-ny.un.org/doc/UNDOC/LTD org/products-and-services/arbitration-and-adr /V14/080/65/PDF/V1408065.pdf?OpenElement. /mediation/rules/. Mediator Standards Board. 2012. The Australian PRACTICE DIRECTIONS National Mediator Approval and Practice High Court of Hong Kong Special Administrative Standards. http://www.msb.org.au/sites/default Region. Practice Direction on Mediation “PD 31” of /files/documents/Practice%20Standards.pdf. 2009. http://www.gov.hk/en/residents/government /publication/consultation/docs/2010/Mediation. pdf. 56 FURTHER READING National Alternative Dispute Resolution Advisory Consultation paper. Financial Services and the Council (NADRAC). 2001. Report to the Treasury Bureau, Hong Kong, SAR, China. http:// Commonwealth Attorney-General: A Framework www.gov.hk/en/residents/government/publication for Standards. Canberra: Commonwealth of /consultation/docs/2010/consult_iec_fdrc_e.pdf. Australia. https://www.ag.gov.au/LegalSystem /AlternateDisputeResolution/Documents International Mediation Institute (IMI). 2013. “IMI /NADRAC%20Publications/Framework%20 International Corporate Users ADR Survey.” IMI, for%20ADR%20Standards%20Body%20of%20 The Hague, Netherlands. https://imimediation. Report.pdf. org/imi-international-corporate-users-adr-survey- summary. POLICY DOCUMENTS NOTES Department of Justice, Hong Kong Special Administrative Region. 2010. “Report of the 1. Another way to address such behavior is to Working Group on Mediation.” http://www.gov.hk introduce information initiatives—such as /en/residents/government/publication/consultation information campaigns or information leaflets /docs/2010/Mediation.pdf. distributed by courts to potential litigants—that enable citizens to make better decisions on dispute Report from the Commission to the European resolutions. However, the effectiveness of this Parliament, the Council, and the European approach is not guaranteed and needs to be tailored. Economic and Social Committee on the application See, for example, N. Alexander, “Nudging Users of Directive 2003/8/EC to improve access to justice Towards Cross-Border Mediation: Is It Really in cross-border disputes by establishing minimum about Harmonised Enforcement Regulation?” common rules relating to legal aid for such Contemporary Asia Arbitration Journal 7, no. 2 disputes. http://eur-lex.europa.eu/legal-content/EN (2014): 405–18. /ALL/?uri=CELEX:32003L0008. 2. See Arab Republic of Egypt’s General Authority Singapore Ministry of Law. 2013. “Commercial for Investment and Free Zones, “Mediation Rules,” Dispute Resolution Services in Singapore Set to article 1, for a similar definition. Grow.” Press release, December 3. https://www. mlaw.gov.sg/content/minlaw/en/news/press- 3. Nadja Alexander, Fatma Ibrahim, and Jean- releases/icmwg-recommendations.html. François Roberge, Mediation Series: Mediation Essentials (Washington, DC: IFC/World Bank Group, 2016), chapter 2. WEBSITES 4. For this table and further information, see European Commission. Accessed January 3, 2016. Felix Steffek, “Principled Regulation of Dispute http://www.ec.europa.eu. Resolution: Taxonomy, Policy, Topics,” chapter 3 in Regulating Dispute Resolution: ADR and Financial Dispute Resolution Centre. Accessed Access to Justice at the Crossroads, ed. F. Steffek, January 3, 2016. http://www.fdrc.org.hk. H. Unberath, H. Genn, R. Greger, and C. Menkel- Meadow (Oxford, U.K.: Hart Publishing, 2013), Financial Services and the Treasury Bureau. 2010. 33–62. “Proposed Establishment of an Investor Education Council and a Financial Dispute Resolution Centre.” MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX B 57 5. “IMI International Corporate Users ADR Survey,” 14. Directive 2008/52/EC of the European Parli- International Mediation Institute, accessed April 1, ament and of the Council of May 21, 2008, on certain 2013, https://imimediation.org/imi-international- aspects of mediation in civil and commercial matters, corporate-users-adr-survey-summary. http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2008:136:0003:0008:En:PDF. 6. See Klaus Hopt and Felix Steffek, Mediation: Principles and Regulation in Comparative 15. See http://ec.europa.eu/consumers/solving_ Perspective (Oxford, U.K.: Oxford University consumer_disputes/non-judicial_redress/ecc-net Press, 2013), 103 et seq. /index_en.htm. 7. See F. Steffek, “Rechtsfragen der Mediation 16. Recommendation on the principles applicable und des Güterichterverfahrens,” Zeitschrift für to the bodies responsible for out-of-court settlement Europäisches Privatrecht 3 (2013): 531–32. of consumer disputes (98/257/EC) March 30, 1998. Recommendation on the principles for 8. See Klaus Hopt and Felix Steffek, Mediation: out-of-court bodies involved in the consensual Principles and Regulation in Comparative resolution of consumer disputes (C [2001] 1016) Perspective (Oxford, U.K.: Oxford University April 4, 2001. Press, 2013), 106. 17. Directive 2013/11/Eu of the European Parli- 9. On arbitration and court proceedings, see Nadja ament and Council of May 21, 2013, on alternative Alexander, Fatma Ibrahim, and Jean-François dispute resolution for consumer disputes and Roberge, Mediation Series: Mediation Essentials amending European Council Regulation No. (Washington, DC: IFC/World Bank Group, 2016), 2006/2004 and Directive 2009/22/EC. chapter 1. 18. European Council Regulation No. 524/2013 10. For Australia, see ss 6-11 of the Civil Dispute of May 21, 2013, on online dispute resolution for Resolution Act 2011; for Hong Kong SAR, China, consumer disputes and amending EC Regulation see Practice Direction 31; for the United Kingdom, No. 2006/2004 and Directive 2009/22/EC. see para 4.4(3) Practice Direction on Pre-Action Conduct, which lists unreasonably refusing to 19. The 1996 Hague Convention on Parental Res- consider ADR as an example of noncompliance ponsibility and Protection of Children assigns the with the Practice Direction or relevant preaction role of competent authority on the matter to the protocol. Ministry of Justice and Public Order. 11. See F. Steffek, “Mediation in Europa und der 20. European Council Regulation No. 2201/2003, Welt—Rechtsvergleichende Forschung zur of November 27, 2003, concerning jurisdiction Umsetzung der Mediationsrichtlinie,”  Zeitschrift and the recognition and enforcement of judgments für Konfliktmanagement 1 (2009): 23. in matrimonial matters and the matters of parental responsibility; European Council Directive 2002/8 12. Australia and France have legislation on accre- /EC of January 27, 2003, to improve access to justice ditation standards for family mediators but not for in cross-border disputes by establishing minimum general mediators. common rules relating to legal aid for such disputes; European Council Parliamentary Assembly 13. See www.imimediation.org. Recommendation 1639 (2003), of June 21, 2004, on 58 FURTHER READING family mediation and equality of sexes. European 23. Directive 2013/11/Eu of the European Parlia Council Recommendation No. R (98) 1 of January ment and of the Council of May 21, 2013, on 21, 1998, on family mediation. alternative dispute resolution for consumer disputes and amending Regulation No 2006/2004 and 21. See Hague Convention of Private International Directive 2009/22/EC. Law, Feasibility Study on Cross-Border Mediation in Family Matters (General Affairs and Policy 24. See UNCITRAL, online dispute resolution for 2007), 21–28. cross-border electronic commerce transactions: draft procedural rules, A/CN.9/WG.III/WP.133 22. European Council Regulation No. 524/2013 (2015). of May 21, 2013, on online dispute resolution for consumer disputes and amending EC Regulation No. 2006/2004 and Directive 2009/22/EC. MEDIATION SERIES: MAKING MEDIATION LAW | APPENDIX B 59