David Weiss, the Director of the Institute for Dispute Resolution (IDR) at New Jersey City University. , is interviewed by Laura A. Kaster, President of the Justice Marie L. Garibaldi New Jersey Alternative Dispute Resolution Inn of Court
LK: David, you proposed a new dispute resolution statute in New Jersey for cross-border disputes that has recently been signed by the Governor. Can you tell us first what the statute does?
DW: the New Jersey International Arbitration, Mediation, and Conciliation Act — specifically addresses a known problem in international law. The problem is that mediated settlements of international disputes are not readily enforceable around the world. That is, mediated settlements are generally treated as all other contracts: if you seek to enforce them abroad, you must litigate or go to international arbitration. This is in stark contrast to obtaining an international arbitration award because there is a treaty or convention called the New York Convention among more than 150 countries that permits arbitration awards to be expeditiously enforced without re-litigation.
LK: Why is that a problem?
DW: Commerce across borders is growing exponentially even for small and medium size U.S. businesses who sell or purchase seamlessly through the Internet or international supply chains. According to the U.S. Department of Commerce, New Jersey exported $32.1 billion worth of merchandise in 2015, much of it going to Canada and Mexico, and in 2014 foreign companies employed more than 244,800 workers in the state.
The real problem is that most commercial organizations, from a family business operation doing a few cross-border transactions to major corporations, want and need cost-effective ways to resolve disputes – from the routine to the bet your business. In domestic disputes, they avail themselves of mediation and settlement in a very large percentage of cases to achieve that goal, maintain good relations, and to avoid the high cost and risks of litigation. But in cross-border disputes, they are discouraged from doing so because mediating a settlement of a contractual dispute will only result in another contract not in an enforceable judgment. That is why by enacting enforcement legislation of settlement agreements you can achieve higher compliance and less uncertainty with regard to enforcement.
LK: How does the NJ Statute address that problem?
DW: The statute authorizes the creation of new arbitration, conciliation and mediation centers that will be able to resolve existing disputes through mediation and then, under the statute, enter an arbitral award on any mediated settlement, allowing the award to enjoy enforcement under the New York convention.
LK: I understand that there will be such a center established in Jersey City – just a ferry ride or bridge crossing away from Manhattan - and that New York does not have a comparable statute. Tell us about that center.
DW: The International Mediation Center (IMC) will act to provide a range of services to the global business community including: physical space to conduct mediations; panels of IMI certified mediators specifically experienced and trained to address cross border disputes between businesses; mediation training for both commercial and government entities; and continuing education promoting mediation advocacy regionally and internationally. We also expect to enter into strategic relationships with other similar mediation centers around the globe, help establish new “sister mediation centers” to assist users and their advisers to address disputes through the mediation process more efficiently. The aim is provide a resource to the business community that they can rely upon to provide efficiency, predictability and cost-effective measures for mediating disputes within our network of centers.
LK: How will mediators/arbitrators and conciliators for the new center be selected and trained or certified?
DW: As mediation continues to develop and grow one of the main concerns is consistent quality. Our center will provide training for the mediators to assure that their success will encourage the business community to foster mediation as their preferred method of dispute resolution. We aim to fulfill this goal by carefully selecting International Mediation Institute (IMI) certified mediators. IMI permits the certification process to take place only by IMI Qualified Assessment Providers (QAP) who vet each mediator. Recently, New Jersey City University’s Institute for Dispute Resolution has become a QAP and will commence its first class for approval of mediators under their assessment program this summer. In addition, our centers will mandate ongoing training for our panel consistent with the IMI Philosophy..
LK: When do you hope to have this up and running?
DW: - The center in Jersey City will be launched this spring and we hope to have our first cases by fall 2017. The first step is securing our panel and working with business and industry stakeholders to inform them of the tools the center will bring to their members and how it will help aide and assist them as they do more business overseas.
LK: Are there other steps that IDR is planning to take to expand the use and benefits of mediation?
DW: Yes this is a first step in a larger vision. We intend to continue to develop innovative domestic and international policies for New Jersey’s b to b market place, but also to assist the b to c market place, and prosumers which is the shared economy like UBER and AIRBNB with more efficient access to justice. We are planning on the next policy initiative to address how mediation can help contain costs and create better access to justice for consumers in home sales and other major transactions. Including online dispute resolution systems which Europe has taken the lead on in recent years through the EU directive 2013/22/EU alternative dispute resolution for consumer disputes. On the research level we are working with other academics around the globe to promote mediation advocacy, explore third party financing of mediation outcomes through option and game theory concepts to improve efficiency in mediation , and investigate how mediation and conciliations can play a more pivotal role in investor/ state disputes such as trade agreements. As Lord Thomas, The Lord Chief Justice of England and Wales, said in his 2015 report to the UK Parliament, “Our system of justice has become unaffordable to most.” While the hourly fees of top US and UK firms have been on the rise for a while, clients are increasingly objecting to traditional approaches to attorney remuneration. This is especially the case when it comes to cross-border litigation and arbitration which distract from clients’ core business.