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China has been using a blended dispute resolution process in which disputes in arbitration may be sent to mediation and, if not resolved, are returned for a final decision in arbitration. The success rate in mediation has been rising in China in recent decades, which has attracted interest in Australia and other Pacific nations that are moving toward the Chinese model. A primary concern is having a single neutral handle both the mediation and the arbitration in a case, so some countries require separate mediators and arbitrators.
Arbitration.com (March 23, 2012)
The Mediation Center of the Internet Society of China has prepared the Internet Intellectual Property Disputes Mediation Handbook with the assistance of Beijing Higher People’s Court and other People’s Courts. The Handbook took effect on February 1 and focuses on online mediation of IP disputes, mediation of court-referred cases, and other areas.
China Daily (March 14, 2012); Research Paper Download Center
The mediation center established by the Japanese government is now beginning to resolve claims resulting from the Fukushima nuclear power plant catastrophe, with three resolutions from the 600 claims that have been submitted thus far. Many more claims are likely from the 150,000 people displaced by the nuclear accident, but to begin the process each claimant must complete a 56-page form using a 150-page instruction manual and provide receipts and other documentation. The Japanese government has set up a $26 billion fund to pay damages on behalf of Tokyo Electric Power Co. (Tepco), with another $11.7 billion approved in November and more likely to follow. Few lawsuits have been filed, although one lawyer is threatening to file a shareholder derivative action against Tepco’s corporate directors seeking $72 billion for failing to raise the height of tsunami barriers.
Law.com (January 26, 2012)
Hong Kong is seeking to become a regional dispute resolution center and is focused on promoting mediation. At a mediation workshop of the International Chamber of Commerce, Hong Kong’s Secretary for Justice stated that a mediation task force is being established to assist in implementing recommendations in a recent Report by a Working Group on Mediation. In addition to public education and promotion of mediation, the Report covered training and accreditation of mediators and the need for a mediation ordinance. The judiciary also has been promoting mediation in implementing Civil Justice Reform. In addition, eight mediation service providers have joined together to offer one-stop mediation referral services in a Joint Mediation Helping Office.
7th Space Interactive (November 12, 2010)
China’s highest legislative body, the National People’s Congress, enacted the People’s Mediation Law in late August, which will take effect on January 1, 2011. China has an extremely long tradition of mediating disputes and currently has nearly five million mediators working in over 800,000 mediation committees. Last year the mediation groups handled over 7.6 million disputes and resolved 97 percent of them. Even so, the legislation is seen as a milestone and is being reported as China’s first national mediation law. The legislation is intended to clarify the rights of mediators and parties so that mediation may be used in increasingly complex and difficult disputes. The statute also makes clear that mediation agreements are legally binding and enforceable by a single party, and mandates that courts and police inform those in conflict about the potential for resolution through mediation.
CRIEnglish.com (August 29, 2010); English.Xinhuanet.com (August 30, 2010)
Detailed proposed regulations to establish mediation as a dispute resolution procedure were introduced in the Russian Parliament in March. Mediation has not previously been a part of Russian law. The proposed regulations would rely on voluntary mediation between parties to a dispute and would provide for confidentiality of the process. The regulations would also establish quality standards for mediation services and some integration of mediation with arbitration and litigation.
Mondaq.com (March 22, 2010) (Registration Required)
Hong Kong’s Practice Directive 31 (PD31) on mediation went into effect on January 1, as scheduled in the Civil Justice Reform adopted in early 2009. PD31 requires counsel to explain mediation to parties and file with the court in each litigation a statement that the party is willing to mediate or why it is not. Further, PD31 sets up a process by which either party can propose mediation and receive a response from the other party within fourteen days. If mediation is unreasonably refused, the court potentially can impose litigation costs on the unreasonable party.
Clifford Chance (January 7, 2010)
In an effort to reduce the backlog of 500 native title claims, the Australian parliament has amended the Native Title Act to strengthen mediation and give the Federal Court power over the mediation process and the ability to deal with recalcitrant parties. One senator raised concerns about mediators being given coercive powers by the amendment, especially since the legislation does not define who can be a mediator or require any particular qualifications or accountability, while other senators felt the amendments did not go far enough.
SMH.com.au (September 14, 2009)
LEADR Fellow Geoff Sharp has publicly responded to the state-funded mediation pilot program in New Zealand’s High Courts by expressing concern that taxpayer funding will devalue mediation and urging the program be established appropriately from the beginning. Sharp suggests looking to the user pays model in the U.K., which both encourages mediation and imposes costs on litigants who unreasonably refuse to mediate. Sharp also recommends an independent advisory body to help integrate mediation into New Zealand’s civil justice system, based on Australia’s National Alternative Dispute Resolution Advisory Council.
Lawfuel.com (September 7, 2009)
The High Court in Auckland, New Zealand is introducing a pilot program using private mediators for court-ordered mediations in certain civil disputes. Judges had previously conducted all mediations or settlement conferences, which were successful but took a great deal of judicial time. The Chief High Court Judge is creating a roster of 12 to 15 mediators, who will be paid NZ$1,500 (US$1,000) for half-day and NZ$3,000 for full-day mediations. The pilot begins on November 1 and will be reviewed in June 2010.
Law Fuel (August 10, 2009)
The World Intellectual Property Organization is opening its first arbitration and mediation center outside its Geneva headquarters, with a new Singapore office opening in January to serve the Asia-Pacific region. WIPO administers mediations relating to patent, trademark and copyright issues, as well as telecommunications, engineering and domain name disputes. The Singapore WIPO office will also collaborate with Singapore’s Media Development Authority to address film related disputes, along with providing training and advice on mediation and arbitration.
Bernama.com (July 28, 2009)
The New South Wales Court of Appeals in Newcastle City Council v. Wieland, NSWCA 113 (NSW, Australia 2009), concluded that court-ordered mediation expenses generally should be treated as legitimate costs of the proceedings, since the mediation is a required step. If the parties wish to ensure that each pays its own mediation costs, they must make that clear by agreement.
Mondaq (May 27, 2009) (Subscription Required)
A possible last minute compromise between copyright holders and internet service providers would rely on independent mediators to help resolve internet piracy complaints. Mediation would replace an obligation on ISPs and server operators to investigate piracy complaints and bar clients from the web, which would be imposed by the revised Copyright Act. Advocates of internet freedom marched on Parliament to protest the legislation, which was set to take effect at the end of February.
New Zealand Herald (February 20, 2009)
Upcoming changes in the Singapore Criminal Procedure Code will give police the power to refer squabbling parties to a Community Mediation Centre. Parties who reject a police referral to mediation would have the refusal counted against them if the dispute ends up in court. Founded in 1998, the mediation center successfully mediates about three-fourths of its cases.
Today Online (February 14, 2009)
Mediation of litigated cases continues to increase in China; last year, one-third of five million civil cases were resolved using non-mandatory mediation, often with assistant judges acting as mediators. The Supreme People’s Court is pleased with the effectiveness of mediation and hopes to further increase the use of mediation in civil and family cases to deal with ever larger caseloads. Pilot projects using mandatory mediation began in June 2008 in seven Chinese provinces and large cities.
China Daily (November 21, 2008)
The Finance Minister of Singapore stated that the Monetary Authority is encouraging mediation as a recourse for protesting investors. Banks in Singapore have established independent mediation panels to address concerns raised by customers.
Channel News Asia (October 15, 2008)
The Hong Kong Monetary Authority appointed the Hong Kong International Arbitration Centre to provide mediation and arbitration services to address disputes between banks and investors in Lehman-related products. In certain circumstances, the Monetary Authority will pay a portion of the fee for the Centre’s services. Hong Kong’s Secretary for Justice is also encouraging mediation to help resolve disputes relating to Lehman minibonds.
The Standard (October 31, 2008); The Standard (October 22, 2008)
A litigation funding company in Australia provides resources in carefully selected cases to individuals and small businesses involved in disputes with larger entities who may try to use their advantage in resources to obtain procedural wins or force unfair settlements. The funding company sees itself as helping to level power imbalances, but selects only cases it feels are likely to generate a good return. The managing director believes mediation is the best option for resolving business disputes, but that mediation works better when the smaller party has options.
Sydney Morning Herald (June 7, 2008)
Australian Supreme and County Courts will be able to send cases to mediation for the first time in a pilot project being started in Victoria, which will include large commercial disputes. Based on a Canadian model, senior judges will be involved to give the mediation process their imprimatur. The project is allocated A$3.7 million in the current budget package for the judicial system. In addition, the budget includes a A$5.8 million expansion of the mediation program in Magistrate Court and A$6.2 million to expand alternative dispute resolution regionally in Victoria.
The Age (May 4, 2008)
In four days of negotiations, World Bank-appointed mediators helped Fiji government representatives and the management of several telecommunications companies reach agreement on conditions to deregulate the Fiji telecommunications industry, which had been run as a monopoly for decades. The agreement is subject to approval of the Fiji Cabinet and company boards.
Fiji Times (November 22, 2007)
The highlight of Law Week in Tonga was the prominence of mediation, according to the Chief Justice of Tonga. A mediation film shown every night on Tongan television was very popular and greatly increased knowledge about mediation both among lawyers and the public. With financial assistance from the World Bank, copies of the mediation video are being sent to every village and church committee in the country.
Tonga-Now (November 23, 2007)
A Korean Fair Trade Mediation Board and a Fair Trade Dispute Mediation Council were established when amendments were made to the Korean Fair Trade Act in July and November. The Korean Fair Trade Commission’s new procedures permit persons suffering damage from antitrust violations or unfair trade practices to file an application for mediation by the Council. If a settlement is reached in the mediation, the Fair Trade Commission will not impose additional penalties.
Mondaq (November 7, 2007)
New South Wales, Australia has proposed relying on a community mediation center in order to lower the cost of court ordered mediations. The Attorney General notes that the community mediation center has 20 years experience and a success rate of over 80 percent.
ABC News (October 28, 2007)
Japan’s Cabinet Office plans to improve mediation services for consumers harmed by illegal business practices and defective products by creating a new Alternative Dispute Resolution system at the National Consumer Affairs Center. After submission of a final report in September, legislation will likely be introduced to give the Center greater authority to conduct mediations and resolve matters, including authority to request companies to participate, present materials and execute agreements with consumers. Sufficient resources are also needed to ensure success, as the Center’s workload is already heavy. This proposal reflects the gradual change in Japan’s approach to consumer protection, which is moving from reliance on extensive regulation to greater enforcement by consumers through the legal system.
Daily Yomiuri (August 8, 2007) (Subscription Required)
Mediation centers in Singapore, Hong Kong, Indonesia, Malaysia and the Philippines are joining together to form the Asian Mediation Association (AMA) in response to increasing trade and cross border activity among countries and businesses in the region. The AMA will pool resources and provide a regional infrastructure for conflict management and resolution. An AMA secretariat will be located at the Singapore Mediation Centre, where a memorandum of understanding forming the AMA was signed on August 17 at the 10th anniversary celebration of the Singapore Centre. The AMA hopes to expand to include China and India, as well as other Asian members.
Channel NewsAsia (August 17, 2007); Business Times (Singapore) (August 18, 2007) (Subscription Required)
After a successful workplace mediation, the employee mentioned to a co-worker that the manager had attended with her son and had been in tears during the mediation. The employer learned of the conversation, alleged a breach of the mediation confidentiality agreement and terminated the employee. The New Zealand Employment Relations Authority concluded in Plimmer v. Hawksbury Community Living Trust, CA 31/07 (Christchurch, March 28, 2007), that the employee’s disclosure was inadvisable but did not breach confidentiality since there was no disclosure of the settlement discussions or the details of what had been agreed.
Independent (NZ) (July 18, 2007) (Subscription Required)
Western Australia’s Supreme Court began a pilot program to mediate criminal cases last November, and is now expanding its “criminal case conferencing” program by covering more serious crimes, including murder and armed robbery, and appointing a second mediator. Mediation occurs only with the consent of the accused and victims (or secondary victims in the case of murder). While possible outcomes of mediation include agreements to substitute charges, obtaining admissions that will shorten the trial, and solutions that avoid trial altogether, the program is not plea bargaining. Further, as with civil mediation, mediation communications cannot be used in any later trial and the mediation is entirely separate from the court proceedings. The Supreme Court is the highest court in the state and deals with serious criminal charges and large civil cases.
Australian (July 13, 2007)(Subscription Required)
Bangalore, India’s third largest city, is inaugurating its first mediation center in a ceremony to be attended by the Chief Justice of India, Supreme Court judges, and other dignitaries, in what is being called one of the most significant developments in the judicial history of the state. The mediation center is one of a handful in India. The center currently handles civil cases with 57 trained mediators and a success rate of nearly 50%. The High Court plans to train additional mediators from surrounding districts and expand to include minor criminal matters.
Hindu (India) (June 21, 2007) (Subscription Required)
China’s Supreme Court President recently emphasized the importance of continuing to pursue mediation as an alternative to civil trials, calling for a step-up in mediation work. However, courts should not attempt to meet mediation quotas, but should ensure that mediation remains voluntary and fully respect the will of the litigants.
World News Connection (June 25, 2007) (Subscription Required)
Singapore’s High Court held that settlement agreements reached through mediation do not have the authority of court judgments, invalidating the court order a claimant’s attorney obtained from a court registrar to enforce a settlement. Singapore’s Subordinate Court promptly ruled that mediated settlements reached through the country’s Primary Dispute Resolution Centre may be endorsed by courts in order to be enforced as judgments. Questions remain about the status of existing judgments resulting from settlements, as nearly 10,000 cases are mediated a year.
Straits Times (May 3, 2007) (Subscription Required)
Discussing both the successes and challenges of mediation in Bangladesh at a roundtable organized by the Bangladesh Legal Aid and Services Trust, Justice Mustafa Kamal stated the need for more trained mediators to allow judges to disengage from mediation. Justice Kamal noted that results have varied, with family mediation program success rates varying from 35% to 83%. Mediation has resulted in a ten-fold increase in debts recovered and has been extended to appellate cases. Justice Kamal suggests creating a training institute that would certify mediators.
The Daily Star (April 29, 2007)
Information Communication Technologies (ICTs), now often touted as a panacea for socio-economic development, fail to make any sense for those enmeshed in violent conflict. This is why I have proposed a deep and meaningful exploration into the way ICT can help engender peace and conflict transformation. I am interested in how (and indeed, if) democracy and peace can be strengthened in countries such as Sri Lanka, Nepal, Colombia, Timor Leste using ICT – how they could be made more resilient to the mercurial actions and policies of political leaders and non-state actors that often sow the seeds for more conflict, how they could give voice to the voiceless and marginalised, and how they can strengthen the participation of youth and empower women in reconciliation.
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