Asian Mediation Articles
This second half of the article on the BAC (Beijing Arbitration Commission) reviews building effective mechanisms to maintain integrity. It examines fairness in arbitration and potential arbitration risks.
A number of disputes exist between the USA and China on economic issues: the level of China’s currency, China’s adhering to international patent protection rules, etc. concern the USA; China would like the USA to get its debt issues under control among other irritants… There is little evidence in the media that each side fully understands where the other side is coming from.
The emergence in China of local arbitration commissions (“LACs”), and in particular their growing role as a forum of choice for dispute resolution, is a phenomenon that has received inadequate scholarly attention. This article intends to present an analysis of LACs based on a case study of the Beijing Arbitration Commission (“BAC”), for which the author worked as a part-time case-handling secretary.
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)
Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.
How do you negotiate the Israel-Palestine problem? What about North Korea? Well a recent book by Stuart Diamond, Professor at the Wharton School and Author of ’Getting More: How to Negotiate to Achieve Your Goals in The Real World’ highlights methods of how to negotiate in real life situations, including that problem and more.
With rapid growth in commercial dealings between Asian nations and an ever-expanding number of partners, the likelihood of disputes grows along with opportunities for greater understanding and early resolution.
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)
(11/12/10)Wong Yan Lung, SC
The following is the keynote speech by the Secretary for Justice, Mr Wong Yan Lung, SC, at the International Chamber of Commerce (ICC) Dispute Resolution Services: Amicable Dispute Resolution (ADR) Workshop 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)
Chris Moore talks about the focus of CDR's work: large, multi-party disputes that often involve the public, organizational and policy-level work, and work in international disputes.
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)
Larry Fong talks about his cultural history as a Chinese Canadian which he believes has affected his decision to mediate professionally.
Theresa Wakeen describes a case she had that involved a Korean mother and a bus-driver who had hit and killed the mother's daughter with the bus. Talks about cultural differences in mediation and conflict resolution, the presence of both parties, and the importance of communication between the parties.
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)
Chris Moore shares his opinion on how world conflict has gone down in some arenas, but in others it has not, as new issues for dispute resolution have arisen. Also, he describes how the field has been more effective at the grassroots level than at a global level.
Thomas Stipanowich shares his notion of the Chinese model for concilliation, which is about restoring harmony within a community. Traditionally, a community elder would come in to the conflict to help resolve it.
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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)