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Canada has decided against forcing banks to use the Ombudsman for Banking Services and Investments (OBSI) and will provide new regulations permitting them to hire private mediators to resolve client disputes. OBSI was created in 1996 to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints; investment dealers are still required to use OBSI. The issue arose after Canada’s two largest banks, the Royal Bank of Canada and Toronto-Dominion Bank, withdrew from OBSI in favor of private mediation and other banks were expected to follow. However, some consumer advocate groups and regulators are concerned that if banks hire private mediators the independence of the mediators could be compromised.
Financial Post (April 30, 2012)
A World Bank paper discusses the effectiveness of alternative dispute resolution, looking at the empirical benefits of mediation and other forms of ADR and noting the need for additional studies outside the U.S. The short paper, by the Investment Climate Impact Project, focuses on measurable issues of cost savings and timing. It also discusses less measurable impacts, such as improving business relationships and problem-solving skills, reducing pressure on courts, and improving investors’ perceptions about the safety of business investments in emerging markets.
Settling Out of Court, Note No. 329 (2011); The World Bank Group’s Viewpoint Policy Journal
The world’s first international conflict resolution group for disputes over derivatives and other complex financial instruments has been established as a non-profit under Dutch law and is based in the Hague. The group is the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance). While a panel of experts is already on its newly-launched website, the group will begin offering mediation and arbitration services in January 2012. The organization states that it benefits from various subsidies, so may be less expensive than other alternatives.
Commodity Focus.com (June 28, 2011); P.R.I.M.E. Finance
The High Court in Hong Kong refused to enforce an arbitral award from China because one of the party-appointed arbitrators acted as a mediator and met with a person connected with one of the parties to propose a settlement. Although the court found that lack of transparency and other concerns tainted the arbitral award, the court made clear that it was not rejecting the concept of med-arb, which is expressly permitted in Hong Kong and common in Asia.
International Law Office (June 7, 2011); Gao Haiyan v. Keeneye Holdings Ltd., HKEC 514 (April 12, 2011)
The World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center will provide mediation services for Creative Barcode members; Creative Barcode is a new mechanism for facilitating safe disclosure of creative concepts and ideas in business deals and proposals by using barcoded files. In more traditional endeavors, some 2,700 cybersquatting cases were filed with the WIPO Center in 2010, setting a new record. The cases were handled by over 300 panelists in 49 countries in 13 languages. The WIPO Center also continues to handle significant numbers of intellectual property disputes.
Dexigner (March 22, 2011); Ag-Ip-News.com (March 31, 2011)
In a twist on mini-trials, “jury mediation” brings together typical jurors to receive a short presentation from the parties, including key documents and even witness testimony, after which the “jury” deliberates and provides its conclusions and reactions in conversation with a mediator and trial consultant. The goal is to decrease uncertainty and increase the information on which parties can make informed settlement decisions in mediation.
New Orleans City Business (March 25, 2011)
While recognizing that the parties’ franchise agreement provided that disputes must go through mediation prior to litigation, the federal court entertained plaintiff’s effort to maintain the status quo during mediation by seeking a preliminary injunction. However, the court denied plaintiff’s request after analyzing the factors required for a preliminary injunction.
Edelman v. Certified Restoration Dry Cleaning Network, No. 11-10781 (U.S.D.C. E.D. Mich., March 11, 2011)
The parties were not bound by a mediation agreement signed by their counsel, which provided a ten-day period for objections after which the agreement was to be binding, because the agreement also included a settlement “proposal” that was to be accepted or rejected within a specified period. That proposal was not accepted, so under standard contract principles there was no meeting of the minds. The failure of either party to opt out within the ten-day objection period did not result in an enforceable agreement, since there had never been acceptance of the settlement terms.
Powerhouse Custom Homes, Inc. v. 84 Lumber Co., No. A10A2351 (Ga. App., January 24, 2011).
Ontario has followed Nova Scotia in enacting a statute specifically addressing commercial mediation. Ontario’s Commercial Mediation Act of 2010 permits agreements reached in mediation to be registered and enforced as court judgments. Commercial mediation does not include disputes over insurance benefits, collective bargaining disputes, computerized mediation or informal attempts by judges or arbitrators to encourage settlement while presiding over litigation or arbitration proceedings. The statute requires certain disclosures by mediators relating to possible conflicts and bias and sets forth mediation confidentiality requirements. The statute is based on the UNCITRAL Model Law on International Commercial Conciliation, which has also been incorporated by several states in the U.S. when enacting the Uniform Mediation Act. The Ontario statute focuses on pre-litigation mediation and does not apply to the mandatory mediation provisions of the Rules of Civil Procedure. The statute took effect with commercial mediations that commenced on or after October 25, 2010 in Ontario or even outside the province if the parties stipulate coverage of Ontario law.
Stikeman Elliott LLP (November 5, 2010); Law Times (December 6, 2010)
