European Parliament Approves Mediation Directive for Cross-Border Civil Disputes
Keith Seat

After many years of effort, a Mediation Directive for cross-border civil and commercial disputes was approved by the European Parliament on April 23, 2008. The new Directive (i) requires member states to encourage training of mediators and development of codes of conduct and other quality control measures for mediation services, (ii) gives all judges the right to invite parties to mediate, (iii) requires member states to provide judgment-like status for mediated agreements, (iv) requires mediation confidentiality and protects mediators from compulsion to give evidence, and (v) ensures that statutes of limitations and prescription periods will be suspended during mediation. Member states have three years to implement the Directive for most issues, and may chose to apply the Directive to internal as well as cross-border disputes.

European Parliament (Brussels) (April 23, 2008)

La Mediación en España
Franco Conforti
No han sido pocos los e-mail recibidos de colegas interesándose por la situación de La Mediación y la salida laboral que tiene el Mediador en España y más concretamente en la Comunidad Valenciana. He recapitulado la información disponible al respecto y he decidido escribir este artículo a título informativo.

1st International Congress on Conflict, Conflict Resolution and Peace
Anna Troeng
The rise in the importance and influence of conflict mediation and transformation processes marked the debates at the 1st International Congress: Conflict, Conflict Resolution and Peace organised by the UOC’s Campus for Peace and Solidarity. The ability of new technologies to open up new spaces for dialogue and negotiation and the use to which they can be put in the field of conflict resolution has had a bearing on many of the projects presented and debated at the congress.

IFC Providing Mediation Assistance to Macedonian Chamber of Commerce
Keith Seat

In order to provide better resolution of member disputes and improve the business environment through the use of mediation, the Macedonian Chamber of Commerce signed a memorandum of cooperation with the Alternative Dispute Resolution Program of the World Bank’s International Finance Corporation. The agreement is part of an effort by Macedonia and neighboring countries to use mediation in the business sphere, with the greatest success thus far in Serbia, Bosnia and Herzegovina, where about 2,200 disputes involving 45 million euros have been resolved.

World News Connection (September 21, 2007) (Subscription Required); IFC’s ADR Program

UK Using Mediation to Curb Gang Wars
Keith Seat

In its efforts to reduce gang violence and murders, the police force in Manchester, England is looking to Northern Ireland’s use of mediation in the late 1980s which helped Catholics and Protestants break the cycle of retaliatory violence and ultimately settle their issues. The process under consideration involves using community members as mediators between rival gangs in a police-sponsored program, which is already under way in Birmingham.

Manchester Evening News (August 7, 2007)

Mediation Critical When Litigation Unaffordable
Keith Seat

Mediation is crucial for those unable to afford the risks and costs of litigation, according to a strongly worded editorial by British High Court Justice Gavin Lightman. However, mediation was set back by the appellate decision in Halsey v. Milton Keynes General NHS Trust, EWCA (Civ) 576 (2004), which refused to order parties to mediate over their objections and required a litigant seeking costs for an opponent’s refusal to mediate to carry the burden of proving the refusal was unreasonable. The importance of these issues is heightened by the government’s limitation on civil legal aid.

TimesOnline (July 31, 2007)

Milestone UK mediation case said to be wrongly decided
Geoff Sharp
A senior High Court judge last week criticised the Court of Appeal’s thinking on mediation in the key decision of Halsey v Milton Keynes NHS Trust, which he said was ‘clearly wrong and unreasonable’Mr Justice Lightman said that the use of mediation is being stifled by the Court of Appeal’s decision in Halsey, in which it laid out that parties could not be forced into mediation and that the burden for ‘proving reasonableness’ over refusing to mediate is not on ...

U.K. Construction Mediation Robust, But Judges Disfavored as Mediators
Keith Seat

Interim results from an ongoing survey of U.K. construction litigation conducted by the Technology and Construction Court (TCC) and King’s College, London, reveal that much mediation of construction disputes is occurring, but litigants are not interested in the TCC’s pilot project to provide judges as mediators. Of the many cases settled, about one-third were resolved through mediation, with most of the rest settling by direct negotiations. Of the mediations conducted, four-fifths occurred at the parties’ own initiative, generally with use of a limited number of well-regarded barristers and construction professionals as mediators. During the first year of the TCC pilot program, litigants have been willing to use judges as mediators only twice.

Mondaq (June 26, 2007) (Subscription Required or Direct with Registration); The Lawyer.com (July 4, 2007)

Mediation Takes Root in Poland
Keith Seat

Mediation has proven effective in Poland since being introduced only eighteen months ago, with more than 200 cases a month now being referred to mediation by civil courts. Looking to the experiences of other European countries and the United States, a recent legal conference in Warsaw focused on the continuing need for education on the benefits of mediation, and noted that the fees paid to professional mediators often fall short of the effort spent resolving the dispute.

Polish News Bulletin (June 6, 2007) (Subscription Required)

First Set of Barristers’ Chambers to Launch Mediation Practice
Keith Seat

While many sets of chambers in England now have dedicated arbitration practices, Exchange Chambers, a top thirty set in London, is the first to develop a dedicated mediation group, with a third of its barristers becoming accredited mediators. The head of chambers stated the move is based on the dramatic increase in the number of cases being resolved in mediation.

The Lawyer (March 29, 2007)

Mediation In Poland
Anna M. Wróbel
In my first article I showed you a picture of Poland, country in which a totally new reality replaced the old system. Now let me take you on yet another short history tour of the judiciary system, and then show you how mediation works in Poland.

Poland: Meet Your Next-Door Neighbor
Anna M. Wróbel
Before telling you how mediation is doing in Poland I thought it appropriate to give you a picture of this country's past and present times so that you can see what influences Poles and their vision of dispute resolution.

Romania Holds First Mediation Congress

Romania’s first Mediation Congress is taking place March 16-17 in Craiova to enhance practical mediation skills and further the Union of Mediation Centers in Romania in order to continue the growth of mediation. Mediation centers are now established throughout the country, having begun in 2005 with assistance from the U.S. Embassy, the Ministry of Justice and bar associations in Romania; training was provided by experienced U.S. mediators. Expected participants at the Mediation Congress include mediators, attorneys, judges, and guests from around Romania and abroad.

Press Release (March 8, 2007)

UK Reversal: Expert Statement Used in Mediation Not Privileged

A joint statement used in mediation by the parties’ experts in a construction dispute was held not to be privileged by the UK’s Court of Appeal, reversing the Technology and Construction Court (TCC) in Aird v. Prime Meridian Ltd. Rather than considering the intent of the trial court, the appellate court focused on the fact that the court mandated the joint expert statement using a litigation form and that the experts had agreed to remove the “without prejudice” designation. The Court of Appeal explained that a joint expert statement could only be ordered for litigation under the court’s rules and so would not be privileged even though it was used in mediation.

Aird v. Prime Meridian Ltd., [2006] EWCA Civ 1866 (Court of Appeal) (December 21, 2006)

European Commission Commits to Use of Mediation in Contracts

The European Commission recently committed to use mediation and other forms of alternative dispute resolution in disputes with contractors, many of whom have complained to the Commission Ombudsman. The Commission previously endorsed mediation as a better way to resolve disputes, and proposes to include an optional mediation clause in its standard procurement contracts. While the Commission states it cannot require contractors to mediate disputes with their subcontractors, the Ombudsman is encouraging the Commission to recommend mediation in such situations, as well as using mediation in disputes over grants made by the Commission.

US Federal News (December 18, 2006) (Subscription Required)

UK Announces Mediation Week Plans

The U.K. Department for Constitutional Affairs (DCA) and Her Majesty's Courts Service are sponsoring Mediation Week from October 9-13, with presentations, seminars and mediation demonstrations taking place in participating courts across England and Wales. The week is part of DCA’s Proportionate Dispute Resolution strategy to ensure justice by increasing awareness of rights, responsibilities and resolution alternatives.

HMCS Mediation Week; Mediation Week Events

Poland Proposes Large Payments to Mediation Counsel

Draft executive regulations from the Polish Minister of Justice would provide state reimbursement for lawyers taking part in mediations that may be up to 150% of what is paid in ordinary court cases. Generous fees would encourage mediation, which only began in civil cases in Poland in December 2005, but ultimately will be set by the court.

Polish News Bulletin (July 4, 2006)

World Bank Organizes Mediation Training in Pakistan

The World Bank’s International Finance Corporation organized a mediation skills training program in Karachi in June. The training is part of the its ongoing efforts to establish a pilot mediation program in Pakistan in cooperation with the Federal Ministry of Law, Justice and Human Rights and the High Court of Sindh. Thirty-six professionals from various backgrounds were trained by UK mediators. The Chief Justice of the High Court of Sindh praised the efforts, strongly encouraging the use of mediation in Pakistan to ease the burdens on its courts, free tied-up assets, and minimize business-stifling litigation.

Business Recorder (June 17, 2006) (Subscription Required)

Controversy over UK Judges Acting as Construction Mediators

A pilot program in which judges will mediate construction disputes has begun in the UK’s Technology and Construction Court (TCC), despite lack of support from solicitors or the alternative dispute resolution community. Mediations may be handled either by the judge in charge of a case or another judge, with all mediating judges receiving special dispute resolution training. While critics raise concerns about the role of judges as mediators and potential damage to the court’s reputation, the TCC Bar Association supports the mediation program because participation is voluntary. The pilot program began June 1 and will continue until July 2007.

Lawyer (June 5, 2006) (Subscription Required)

UK Courts Impose Sanctions for Unreasonable Failure to Mediate

While UK courts strongly encourage mediation, they have been reluctant to simply order parties to mediate, and have instead imposed sanctions on litigants who unreasonably refuse to mediate, even if the party is ultimately successful in litigation. In a significant line of cases, UK courts are making increasingly nuanced decisions about whether the refusal to mediate was unreasonable, looking at factors such as the nature of the dispute, the merits of the case, whether delay for mediation would cause harm, whether mediation had a reasonable chance of success and the extent to which mediation was encouraged by the court. Some decisions have recognized that looking into whether a refusal to mediate was unreasonable may involve sensitive issues of mediation confidentiality and privilege, and note the need to avoid questions of why mediation may not have resulted in settlement.

The Journal (Newcastle England) (May 2, 2006) (Subscription Required); Detailed Article

English Courts Urging Mediation for Personal Injury and Other Claims

Updated Civil Procedure Rules encouraging mediation and other alternatives to litigation went into effect on April 6 in England and Wales. Notably, “pre-action protocols” were amended for personal injury (PI) claims to encourage negotiation and mediation, which are common for other types of claims. While there has been resistance to mediating PI cases in the UK, use of mediation is increasing and the success rate in PI cases is said to exceed 90%.

Civil Procedure Rules
PI Pre-Action Protocol
Post Magazine (March 9, 2006) (Subscription Required)
Estates Gazette (March 11, 2006) (Subscription Required)

UK Patent Office Offers Mediation Service

The UK Patent Office began a new mediation service in April for resolving intellectual property (IP) disputes. The Patent Office provides accredited mediators for IP disputes at a set rate of 1,000 pounds/day (in London), as well as a lengthy list of independent mediators that parties can choose to hire directly. Detailed information about the new service and various aspects of mediation is available on the Patent Office’s website. The Patent Office also provides useful model mediation procedures and an agreement to mediate.

UK Patent Office Mediation Service; Model Procedures and Agreement

UK-China Mediation Centre Launched

A new international alliance launched the UK-China Mediation Centre in April, with locations in Beijing and London. The alliance is between the Centre for Effective Dispute Resolution (CEDR) and the China Council for the Promotion of International Trade. The focus is on mediating disputes between Chinese and European businesses to avoid the need for arbitration or litigation.

Lloyd’s List International (4/12/06) (Subscription Required)

Mediation without Trust: Critique of the Hungarian Mediation Law
Judit Revesz
In the first part of this article I try to describe the social psychological dynamics of Hungarian society in the 20th century and how it relates to the practice of mediation and then offer some critical observations on the Hungarian Mediation Law itself. This new Hungarian mediation law established a hybrid institution, also called mediation, which has a similar set of foundation principles as the American model but at the same time it’s setup is such that it might indirectly create more conflicts than it resolves. It will be a real challenge for any Hungarian mediator to find a way to facilitate the parties’ informal private discussions while empowering rather than judging them, maintaining an open channel of communication, staying impartial and confidential and at the same time keeping aligned with the rules of the Act on Mediation.   1 Comment

Transatlantic Dispute Resolution
Eric van Ginkel
The recent expansion of the European Union is likely to lead to a further, dramatic increase of the number of transatlantic disputes. The only efficient way to deal with them is by mediation or a similar alternative dispute resolution method, followed by arbitration if the mediation fails to lead to a settlement.

Mediation Takes Hold in Scotland
John Sturrock
Scotland is famous for its innovation and willingness to try to address the challenges of modern life through creative thinking. Despite this, in the past few years in Scotland, there has been a cautious approach to mediation and other forms of consensual dispute resolution. However, mediation in Scotland, once closely associated with only family disputes, is now increasingly being chosen by those in civil and commercial disputes as their preferred option for dispute resolution.

Italian businesses, mediation, could it be? The mediation bridge: An idea becoming reality
Alessandra Sgubini
When a “bridge” exists between two countries, an exchange of knowledge, attitudes, and ideas can have positive impact for both countries and can create business for both countries. My vision is to develop a concrete plan for the transfer of the concept of mediation to Italy and to build an ideal mediation “bridge” for the benefit of business communities in both San Diego (US) and Milan (Italy).   2 Comments

Mediators in Need of Momentum: ADR in Europe
Michael Leathes, Avi Schneebalg
Mediation got off to a good start in Europe. Heralded as a solution to clogged-up courts, spiralling legal fees and business relationships torn apart by gladiatorial lawyers, it enjoyed a big initial take-up in some countries during the early and mid-1990s. However, the movement towards alternative dispute resolution is in danger of stalling in Europe.

Confidentiality and Privilege in Mediation: A Dutch Perspective
John Bosnak
It is the author's bold submission, that Dutch case law, as developed by the Netherlands Supreme Court, might be of some general interest, as it is based on general principles, amongst others found in case law by the European Court for Human Rights. As Dutch is not Europe's most accessible language, some observations in English might be stimulating for those who are interested in this matter.

Mediation in the UK- at the crossroads?
Karl Mackie Has mediation failed to make its mark? CEDR’s mediation statistics, the only annual benchmark of commercial mediation in the UK, showed mediation growth to be at a virtual standstill last year. Anecdotal reports from other mediation providers and individual practitioners mirror this. So, are commentators right to paint a gloomy outlook for mediation?

Mediation in Stockholm
Christer Holm
This article describes the background and main features of the recently adopted Rules of the Mediation Institute of the Stockholm Chamber of Commerce. Attention is given to the provision by which the parties, after having reached a settlement agreement, may agree to appoint the mediator as arbitrator and request him to confirm the settlement agreement in an arbitral award. Forum Discussion

Belgrade Combating Fear Project
Paul Wahrhaftig
Project MOST, of the Centre for Anti-War Action, in Belgrade, Yugoslavia, has been active in helping citizens overcome the trauma of war as a necessary first step towards breaking the cycle of violence in the Balkans. They are exploring a new approach to the problem - focusing on fear. Forum Discussion

Finding A Way Out Of Yugoslavia: Lessons From MOVE
Paul Wahrhaftig
Another place - another time - another violent conflict - but haunting parallels. In the 70's and 80's it was the predominately black counter-culture group called MOVE and the City of Philadelphia. It escalated from a conflict between an assertive community group and its neighbors to armed sieges, a shootout in 1978 which killed one policeman, and an armed assault and bombing by the city in 1985 which killed 11 and burned down an entire neighborhood

The Hague Appeal for Peace Conference
Gouri Sadhwani Civil Society held the largest international peace conference in history on May 11-15, 1999. Over 9,000 activists, government representative and community leaders from over 100 countries attended the Hague Appeal for Peace Conference.

George Mitchell: Role Model for Mediation
Geoffrey Corry
There is much that we can learn by reviewing the strategies and process interventions used by George Mitchell and his mediation team in facilitating agreement in Ireland. Seven key aspects of Mitchell's work are highlighted in this article from the editor of Forum Discussion