Many articles have been written about mediation (and this short article makes the assumption that "conciliation" is covered by the term "mediation"), but many practitioners, academics and theorists write about mediation in the abstract without sometimes having regard to the universality of mediation. We live in a world now where everything is instant whether it be coffee, communications or conflict.
One commentator on international trade disputes in the context of the World Trade Organisation wrote, "In late 2004 and early 2005, the row over Boeing and Airbus subsidies hit the headlines, this time on account of the fact that mediation might be attempted to resolve the dispute. The suggestion appeared novel. In the arena of international disputes, the mediation option does, in fact, appear to be rarely used."
There will be practitioners who will say that such a comment does not reflect actual practice in the day to day field of dispute resolution for them. This article does not set out to evaluate current usage in the international arena, rather to examine where mediation has become, and is becoming, a dispute resolution tool of lawyers around the world.
First, it is to be remembered that the "old hands" at mediation are themselves scattered around the globe - the USA (universally regarded as the forerunner of modern mediation practice), Canada, Australia, New Zealand and, for the last 16 years, the UK comprise a list of the leaders in mediation usage. But what of the rest of the world? Just as it takes two to tango, it takes two to mediate a two-party dispute, and how many lawyers of any nationality are prepared to move out of their comfort zone of the conventional route of litigation?
The writer has a rare overview of the dispute resolution scene around the world, having been a "red meat litigator" for many years working in the UK, Chile and Canada, with an overlapping mediation practice for the last 13 years. Added to this is a role as a trainer of mediators and lawyers in his capacity as a member of Faculty for the Centre for Effective Dispute Resolution (CEDR) in London. His work takes him from Africa, to Asia, to the Middle East, to Eastern Europe and, of course, to the EU. There follows a few snapshots of mediation activity around the world.
In Lagos, Nigeria, CEDR has worked with the courts and a team of local people who wish to improve on current dispute resolution methods by speeding up and reducing the cost of the delivery of justice. In 2004 and 2005, a team of trainers has visited Lagos and Abuja to train mediators, train trainers locally and help to establish the Lagos-based mediation service. So effective has been the work done there that the Chief Justice of Nigeria has appointed a designated mediation High Court Judge (himself, now an accredited mediator) as well as agreeing to open up in each of the 33 national Court Centres the same Multi Door Courthouse system which is now operating in Lagos.
As well as in Nigeria, the writer has worked with the Chief Justice of Uganda who is himself an ardent supporter of mediation and has systems already working in his jurisdiction. Despite, and perhaps because of, the internal national problems in certain parts of Africa, there is an ever growing desire to resolve problems without the 'war' that conventional litigation can so easily become.
The writer has delivered mediation skills training to lawyers in government departments in Malaysia where international trade is a major activity. By being seen to be taking the lead, the government is setting a standard which others who trade within and without Malaysia can follow and enables them to replicate dispute resolution methods so frequently used by the "old hands."
Elsewhere, Singapore has become a serious player on the mediation scene, and other countries are developing a mediation capability. China is now a force to be reckoned with, not just for its economic growth and success, but because that very growth and success has generated the need to look outwards and to work in the style of their trading partners when trading relationships mean more than just a one-off deal.
The Middle East
India and Pakistan have had forms of dispute resolution for many, many years, but as modern international trade becomes more totally universal, so does the need to resolve disputes in a form which the international legal and trading community uses and understands. Looking at Pakistan in particular, there is currently a pilot training programme in the Sindh Province (Karachi is the provincial capital) which is training mediators, training some of them to be local trainers, delivering case management guidance to the judiciary on ADR matters and creating mediation awareness in the legal and business communities. The work is being done by CEDR and is scheduled to last one year. The writer is part of the CEDR team and knows the enthusiasm that the Pakistan involvement has created for what is seen as an essential development in Pakistan's burgeoning international trade as well as securing the overarching benefit of acceleration of the delivery of justice.
By its Private Enterprise Partnership Middle East and North Africa (PEP-MENA) scheme, the World Bank, through its International Finance Corporation arm, has plans to develop mediation in 18 other countries in that part of the world. Pakistan may be the first in this region to develop modern mediation, but it will certainly not be the last.
The European Union has already achieved a membership of 25 states. Others seek to join the "Club," but the EU has a wide range of membership criteria of which justice is a leading issue and within that, mediation capability is a feature.
Currently there are three bidders for entry - Romania, Bulgaria and Turkey. For the first two, the year 2007 is the current deadline. The 2005 Progress Reports on each of those two countries show that each has work to do to meet the criteria, and justice forms one of the main areas for development. As almost all mediation commentators will know, the success or failure of a nation to adopt mediation depends on many factors but some key features often revolve around a blend of statutory recognition, mediator regulation, mediator training, mediator quality, judicial acceptance, lawyer acceptance and client usage. Leave out one or more of those components and it may well be more of the same in court for the litigants.
In Bulgaria, the government took a lead by putting before Parliament a draft bill on mediation. It generated significant interest and debate, resulting in a number of amendments, all of which in the writer's view helped to produce a short, effective and user friendly Mediation Act. (There may not be much humour in an article of this nature but it is worth noting that under Bulgarian Law, an Act of Parliament has to be published in the State Gazette six months before the Act becomes the law - the newspaper compositor unfortunately mistyped the name describing the new Act as the "Medication Act." Perhaps mediation is some form of alternative therapy after all!)
In Bulgaria and Romania. the writer has delivered judicial awareness training to assist both countries to meet one of the key elements in the successful adoption of a mediation strategy, with Bulgaria going significantly further than many countries (including the UK) by having its own Mediation Act. Whilst the philosophy of the UNCITRAL guidance on International Trade Disputes, encapsulated in the United Nations Resolution 57/18, is being adopted around the world by many more countries year on year, not many have taken the bull by the horns in the way that Bulgaria has done. Undoubtedly, both Romania and Bulgaria are taking the right steps to match the EU criteria for new entrants.
Not far away lies Turkey. Here is a country which aspires to EU membership, and whilst they have further to go than Romania and Bulgaria, in mediation terms the Minister of Justice has taken up the mediation issue within the last few weeks, and it remains to be seen which route the Turkish Government will follow. In the meantime, earlier in July of this year (2006), the recently formed British Turkish Lawyers Association, of which the writer's firm is a founding member, held major seminars in Istanbul and Ankara which were attended by over 170 lawyers. Mediation attracted considerable interest in a country which has no current mediation experience, but Turkey has the same issues to address as almost all countries in the world - an overloaded judicial system, high cost of litigation and an expanding international trade profile. Turkey represents yet another fertile area for mediation development.
25 states with many similarities and many differences. From the judicial perspective, the EU reflects the massive influence which the French Emperor Napoleon had on continental Europe. Warlike he may have been, but it is highly significant that almost 200 years after his demise, the stark contrast between the common law legal systems and the civil law legal systems exists today just as much as they did when "Boney" was in his prime.
The EU has adopted a Code of Conduct for Mediators and this is a very effective way forward but it does not provide the whole answer. A draft Directive on mediation was published in 2004, but as is the way in major organisations such as the EU, issues take time to germinate. There are many national attitudes which need to be taken into account. At a recent major conference in Luxembourg, the writer and other delegates were given some insight into the current thinking on the Directive after debate in the EU Parliament but only time will tell the way forward in the EU. Meantime, some countries forge ahead under their own mediation philosophy whilst others await the publication of the final draft Directive. Whatever course is adopted, one can be sure that at the end of the day, national attitudes, formulated by usage of the Civil Codes or Common Law, will determine the attitude of the respective judiciaries towards mediation usage in each of the member states of the EU.
History and custom have shaped national legal systems over many centuries, and it would be foolish to think that some overriding desire to see an end to conflict will produce a sudden outbreak of mediated settlements.
Anyone can litigate, anyone can lose friends and anyone can lose valuable trading partners. But not everyone wants to do all of those things. Effective trading relationships can take years to develop and minutes to kill. The investment in their development is not to be thrown away lightly or wantonly.
Perhaps, President Clinton put his finger on the pulse of dispute resolution when he tried at all levels of international dispute resolution to get everyone around the table to put themselves in the position of the opponent - what are the absolute parameters beyond which the opponent cannot negotiate because they cannot deliver a deal beyond those parameters?
Litigation may deliver results - mediation delivers deals.
Ronald Bradbeer is a Consultant with Eversheds LLP.