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International Mediation Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

Updates Available  

A more recent version of these International Mediation notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ADR: INTERNATIONAL MEDIATION INTERNATIONAL MEDIATION "International dispute":

* Dispute

* Involving any subject-matter

* Where the parties to the dispute are based in different countries, and

* Which may require performance of obligations in different countries. Harmonisation

* Disparities in:
* Training and accreditation
* No common Code of Conduct
* Manner and frequency of promotion and use of ADR

* UN Commission on International Trade Law (UNCITRAL) - 'Model Law on International Commercial Conciliation' (across international jurisdictions)
* Consists of detailed rules covering all aspects of mediation Advantages of Mediation in International Disputes

* Parties can choose where mediation takes place (need not be where litigation would be commenced)

* Avoid difficult jurisdictional and conflict of law issues

* Mediators can assist with communication - language, time-zone issues

* Facilitates speedy settlement - international litigation can take a long time

* Parties can have a number of (pre)mediation meetings in own countries

* Parties can rely on local advisers in relevant country to resolve technical, practical, political or legal issues

* Particularly cost-effective compared to litigation or arbitration INTERNATIONAL MEDIATION ORGANISATIONS Organisations providing Mediators

* International Mediation Institute (IMI)
* non-profit foundation
* aim: set his competency standards for worldwide mediation
* published guidelines 'Guidelines for Lawyers Representing Clients in Mediation'
# assists in selection of mediator(s) with necessary expertise and style

* International Mediation and Arbitration Centre Organisations providing Information

* Juris International

* International Institute for Conflict Prevention and Resolution

* World Mediation Forum

* Arbitration and Mediation Centre of the World Intellectual Property Organisation

* International Mediation Alliance INTERNATIONAL MEDIATION: PREP & PROCESS Preparation

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Selection of mediation team - all need training, expertise, relevant and sufficient Code Management of language and cultural differences Position statement likely to be longer (generally 15-20 pages + indexed bundle) More prep work by mediator Longer mediation

Process

* Mediator encourage parties to explore issues in joint meetings - extended plenary session

* More expert evidence - may be meeting of experts/single expert who parties can Q.

* More acute time pressure

* Unlikely immediate binding settlement agreement at conclusion - final agreement likely to be subject to reflection, review and consultation
* Will require more work by lawyers before parties will sign (and agrmt become binding)
* Mediation may be resumed after adjournment with non-binding "heads of agreement" in the interim EU MEDIATION: EFFORTS AT STANDARDISATION Issues

* Training and accreditation

* No common Code of Conduct

* Manner and frequency of promotion and use of ADR Action

* Attempted to standardise mediation through
* EU Directive on Mediation in Civil and Commercial Matters (Directive 2008/52/EC)
* EU Code of Conduct for Mediators EU Code

* Approved by the Justice Directorate of the European Commission.

* Sets out principles to which individual mediators can voluntarily decide to commit.

* CMC has endorsed the code as laying down minimum standards which its members should observe EU MEDIATION DIRECTIVE Objectives Art.1 - The objective of this Directive is to:

* facilitate access to alternative dispute resolution and

* to promote the amicable settlement of disputes

* by encouraging the use of mediation and

* by ensuring a balanced relationship between mediation and judicial proceedings.

EU MEDIATION DIRECTIVE: "MEDIATION" "Mediation" Art.3 * A structured process, however named or referred to,

* whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

* This process may be initiated by the parties of suggested or ordered by a court or

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