Medley on Mediation

Niall Lawless

Chartered Arbitrator and Engineer, Adjudicator, Mediator

Chair CIC ADR Management Board

www.linkedin.com/in/adjudicator

On 7th August 2019 I was in Singapore where 46 countries signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’[1]). The Singapore Convention provides parties with a straight forward method of enforcing mediated settlement agreements across borders. It is significant because it will give businesses greater confidence that mediation is a reliable way to settle international commercial disputes.

One of the grounds for granting relief against enforcement is where there was “a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement”. [2]

To mitigate against any breach of standards erudite parties will use a mediation procedure designed to ensure a fair and consistent application of the mediation process, underpinned by a mediator from a reputable panel. One such highly regarded procedure is the CIC Model Mediation Agreement and Procedure (the ‘CIC MMAP’[3]).

Although it was a privilege to participate in such a landmark event as the signing of the Singapore Convention, my principle reason for being there was to attend the 2nd to 5th August 2019 Singapore International Mediation Institute (‘SIMI’) Mediation Competition[4]. I was coach to ‘Mediation Works’[5] comprising Ariunsanaa Batbaatar (Mongolian), Cécile Maitre-Ferri (French) and Ren Xiaolu (Chinese). Mediation Works achieved a Gold Medal for outstanding Mediation Advocacy, with the team’s performance receiving critical acclaim from highly respected professionals.

During the SIMI Mediation Competition there were 40 competing teams from 17 countries, with over 140 students participating. All teams performed for five rounds. SIMI used a ‘power matching’ system to allocate team pairings for each round of the competition, except for the first round which was determined by random selection. Power matching ensured that the best performing teams faced each other in subsequent rounds, which maintained bracket integrity.

Mediation Works came together through networking, and prepared almost exclusively on-line over a six week period, supported by three-day training in person in Beijing. One of the first documents I asked the students to study was the CIC MMAP, which emphasises the bifurcation and importance of the role of:-

• Lead Negotiator the business principal with full authority to settle the dispute and to sign the settlement agreement. The role of lead negotiator is challenging as it requires the evaluation and development of options, and being able to respond wisely and expeditiously to any new information provided by the other party.
• Parties’ lawyers or representatives who can make or break the mediation. Good mediation lawyers or representatives can shift seamlessly to advisor from advocate. In their role as advocate they will succinctly summarise legal arguments, but not in an adversarial or combative way. They allow the business principal to take the lead, preparing their clients offering advice, guidance and information on negotiation and mediation.

Cross-cultural ability, intellectual resilience, and mastery of roles were reasons Mediation Works prevailed and achieved a Gold Medal for outstanding Mediation Advocacy.

[1] www.singaporeconvention.org/index.html

[2] www.singaporeconvention.org/convention-text.html

[3] The CIC MMAP can be downloaded here.

[4] www.simi.org.sg/News/International-Mediation-Singapore/Competition-Information

[5] The ‘Mediation Works’ team biography prepared according the SIMI Guidelines can be downloaded here.