This Week In Mediation

Mediation News - This Week In Mediation Episode 10

Posted by Aled Davies on 07-Feb-2017 06:23:00
Aled Davies

In the Mediation News this week we take a look at development in Asia as Singapore passes it's long anticipated Mediation Act. It's no secret that Singapore is fast becoming a hub for mediation in Asia. The number of new cases filed for mediation at the Singapore Mediation Centre last years was at an all time high - so things are definitely moving along in that region.

We also saw Goa in India host it's first International Dispute Resolution competition just last month with a mediator from the National University of Singapore taking the spoils.

In this 10th Episode of This Week In Mediation we examine a recent decision from the U.S. Second Circuit Court of Appeals on mediation confidentiality. Staying in the U.S. we look briefly through the lens of truth at the differing perspectives of the presidential inauguration and wrap things up with an important question for our audience.

All this and more from the Mediation news room in London.

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As a mediator what could you offer parties that were so wrapped up in their own realities to help them depart from their entrenched positions?

Topics: Mediation News

 

Mediation News TWIM 10 

The Full Transcript 

Aled Davies:

Hi everyone. I'm Aled Davies and welcome to Mediator Academy's roundup of mediation news from around the world. As always, we try and be informative, illuminating, and a little outrageous from time to time. Welcome to This Week in Mediation. It's our 10th show and I'm delighted to welcome my co-presenter Professor Nadja Alexander. Nadja, welcome.

Nadja Alexander:

Thank you, Aled. Pleasure to be here as usual, especially for the 10th show.

Aled Davies:

Not only is it the 10th show, but it's also another special event. Tell us about that, Nadja.

 

Nadja Alexander:

Well, it is the year of the Rooster. Last weekend was Chinese New Year. Aled, welcome to the year of the Rooster.

 

Aled Davies:

Ah, I see-

 

Nadja Alexander:

May it bring you lots of prosperity and health and success.

 

Aled Davies:

I noticed your very stylish red jacket.

 

Nadja Alexander:

Very observant of you, yes. Red is the lucky colour symbolising good fortune and joy.

 

Aled Davies:

Also it's the colour of the Welsh Rugby Union Rugby jersey, and we had a victory on the weekend which I'm also delighted about. It's going to be a joyous week for mediation. Tell us what's coming up in the show today, please.

 

Nadja Alexander:

This week, in honour of Chinese New Year, we're going to commence with some development in Asia and have a look at Singapore's new mediation act. Then we're going to look at the trend and mediation competitions from India to Paris and Vienna, and then we're going to jump from Europe, across the pond, as you like to say, Aled, to the United States and have a look at a recent decision on confidentiality. Finally, we're going to have a bit of a think about truth and Trump.

 

Aled Davies:

Truth and Trump. Trump and Truth. Well, that sounds like an exciting show.

 

Nadja Alexander:

Trump the truth.

 

Aled Davies:

Trump the truth. As it's Chinese New Year time, why don't we start with what's happening over in Asia?

 

Nadja Alexander:

Singapore has passed a long anticipated mediation act. It's certainly not the first piece of legislation on mediation in Singapore. There's been legislation on court related mediation and also on community mediation for a number of years.

 

Aled Davies:

What's the difference, then, if it's been around for court related and community?

 

Nadja Alexander:

In the past couple of years, Singapore has been very busy revising and refining and extending its dispute resolution offerings, particularly in the cross border arena. Singapore now offers international parties a full suite of dispute resolution services from mediation through to arbitration and various hybrids as well. The law is basically offering legislative support for, in particular, international commercial parties. It applies to all types of mediation apart from where an area of mediation has already been legislated, such as community or court related mediation, and it does apply beyond international commercial, but clearly that was one of the impetuses for the law if you like.

 

 

It basically strengthens the framework for the enforcement of mediated settlement agreements, including cross border mediated settlement agreements. Of course, we've talked about that in previous shows. That's a very hot topic at the moment. The law also codifies a number of issues that clarify the common law. For example, issues around confidentiality and admissibility or non-admissibility of mediation evidence. It deals with court proceedings to preserve legal rights while people are off mediating, and also expressly allows foreign mediators to participate in mediations, similar to what is the practise in arbitration.

 

 

Basically, there's nothing particularly dramatically new. It's a clarification and codification process or project, if you like. But what is new are the provisions related to the enforcement of mediated settlement agreements. I might just say a couple of words about that. The Singapore mediation act has got some similarities with the Hong Kong mediation ordinance, especially in relation to the provisions on confidentiality and non-admissibility of mediation evidence. This is a good thing. I think it's a really good example of the harmonisation of mediation rules around the world. I think harmonization's good as long as it doesn't involve dumbing down. I know the Hong Kong provisions, at least to my mind, are very sophisticated provisions on confidentiality. To enact provisions similar to this, I think is a very good thing and a step forward for mediation, not just in Singapore, but also globally.

 

 

In relation to the mediated settlement agreements, what the act actually does, it says if parties agree, they can apply to the court for the court to record a written and signed mediated settlement agreement as an order of that court. Effectively, your mediated settlement agreement, whether it be a domestic one or an international one, becomes an order of the court. This can only happen provided two additional requirements are met besides the agreement of the parties to do so. One is that the mediation must've been administered by a designated mediation service provider and the mediation must've been conducted by a certified mediator. These last two provisions, I think, are there really to ensure the high quality of mediation processes and of mediator performance particularly when you're going to offer some sort of expedited enforcement mechanism to accompany the mediated settlement agreement.

 

 

You really need to make sure your quality processes are very tight in that case.

 

Aled Davies:

If you want your mediated settlement agreement to be a court order, you just can't use anyone. What about foreign mediators?

 

Nadja Alexander:

That's a really good question, particularly in relation to international commercial mediation because very often people want to have foreign lawyers and foreign mediators, or non-Singaporean mediators involved. It's important here to remember that the legislation doesn't exist on its own. It's been brought in to complement an institutional framework that's being set up in Singapore, offering mediation services. For example, the Singapore international mediation centre was set up at the end of 2014 specifically to offer international mediation, particularly international commercial mediation. It has a panel of mediators from around the world. These are certified by SIMI, which is the Singapore International Mediation Institute, which has a link to the International Mediation Institute, IMI as we know it, which also certifies mediators around the world.

 

 

You can definitely use a foreign mediator, but your mediator does need to be certified.

 

Aled Davies:

You don't need to be Singaporean to be certified as a mediator under the act.

 

Nadja Alexander:

Absolutely not. The idea is, really, to offer an international mediation service, in particular an international commercial mediation service with a pool of high calibre international mediators. That quality standard is assured by making sure that they are certified.

 

Aled Davies:

I see, okay. Interesting. Well, we're in Asia so let's stay in Asia. We're moving onto the topic of mediation competitions. I think there was quite a successful mediation competition in India, in Goa, last month, Nadja?

 

Nadja Alexander:

Did you go to Goa, by any chance, Allen?

 

Aled Davies:

Unfortunately not. I would've loved to have gone to Goa. I've seen a few photographs of some of the judges busy lounging on their beach huts, gazing out into the sunset, clearly working very hard. I'm really interested in this, what seems to be a real trend in mediation competitions. One, I'm interested because I've spoken to some notable academics in mediation who feel that it's a bit of an oxymoron. You've got a mediation competition? How does that work? We've got the one in Goa. We've got the ICC now, which is happening as we speak.

 

Nadja Alexander:

As we speak.

 

Aled Davies:

As we speak, in Paris. There was the CDRC's in Vienna, which is also happening, again, this year. What's all this trend in mediation competitions about, Nadja?

 

Nadja Alexander:

I think it's really exciting. I think it is important. It's interesting that people talk about the tension or the oxymoron about having a mediation competition, because mediation is supposed to be about collaboration, and I think I have two responses to that. One is mediation occurs often in the shadow of the court. There's a tension anyway. We have to deal with this tension. People are trying to collaborate within a legal framework that tells them if this doesn't work out, you're going to have to go off to court and compete anyway, right? We're often dealing with this tension.

 

 

I think the second, and accurately more important point, is that it's not just the mediation process. The mediation process isn't the subject of the competition, and in some of the competitions it's also not the mediators, but it's rather the mediation advocates. It's the students who are playing the role of lawyers, representing their clients in mediation, that are being judged. That is the case, I think, in most of the competitions. Some of the competitions then also judge the actual mediators.

 

 

It's tough to do, to demonstrate how well you collaborate, while still maintaining your client's interests, and doing so in a potentially, ultimately, competitive environment, but that's the job. It's tough.

 

Aled Davies:

I've only attended one, and that was the one in Vienna last year, and what I liked about that particular competition was the way the young people, including myself, [crosstalk 00:11:30]

 

Nadja Alexander:

I was just going to ask about that.

 

Aled Davies:

The way they engaged in it, and they got so excited and passionate and almost injected the world of mediation with some vibrancy and enthusiasm that I haven't seen for a long time. Also, I think, there's going to be some kind of element of reprogramming, reconditioning people's natural dispositions to dealing with conflict and disputes so that they do approach it from a non-adversarial, curious, "let's have a dialogue first", we've talked about this phenomenon, rather than, "Let's establish our positions and see who's rights should prevail."

 

 

I think it's definitely going to help, hopefully, shift the culture of dispute resolution so that it does become a dialogue first, but I just really enjoyed the way young people just really got into the spirit of the competition.

 

Nadja Alexander:

Onward and upward with more mediation competitions.

 

Aled Davies:

I think so. I think so. I think it's good to know that the future of mediation is in good hands, Nadja.

 

Nadja Alexander:

Yes, but we need to remain vigilant so that we've got a growing and sustainable profession to hand over to the next generation, so we can't just sit down on our laurels.

 

Aled Davies:

I don't think that's just all about training mediators, I think it's important that we have good, robust laws. We talked earlier about legislation in the show, but what about case law, Nadja?

 

Nadja Alexander:

We like to keep up to date on that. Here's a decision from the US Second Court of Appeals. It's called In Re Telligent incorporated. As usual, you'll find a link to this case on the website. The facts are a little bit complicated, but I mean, the most important things to remember are this. That it's about a CEO, who's called Mandl, and he was fired because he owes the company $12 million that he hasn't paid back. The company fires him, possibly understandably, but then the company goes bankrupt and the bankruptcy estate sues Mandl, the now former CEO. There were a couple of mediations along the way, of course, because this is a mediation case. After the first mediation, Mandl, the former CEO, fires his lawyer and says, "You haven't been representing me properly and I'm going to take a malpractice action against you." Asserts a malpractice claim but doesn't yet initiate it.

 

 

Then there's another mediation along the way, and there's ultimately a settlement. A term of this mediated settlement agreement is that Mandl, the former CEO, goes after his former lawyer for the malpractice suit and splits any damages awarded in his favour. Then, complying with the mediated settlement agreement, the former CEO, Mandl, does this. In the process of bringing this action, also seeks to bring evidence from the first mediation. He's asking, basically, for an exception to the rules on confidentiality and non-admissibility of mediation evidence.

 

Aled Davies:

The question is, can he do this?

 

Nadja Alexander:

Exactly. You are on the pulse today, Aled.

 

Aled Davies:

Tell me, what did the court say?

 

Nadja Alexander:

The court identified a three factor test, which is actually good because people can usually not remember more than three things, so if they had a nine factor test, that would've been less than useful. Sticking with the lucky number three, they've said, "If you want relief from the rules of confidentiality," in other words, if you want an exception to the confidentiality regime, generally, "you need to show three things. First, you need to show a special need for the confidential material. Second, you need to show a resulting or consequent unfairness from not being able to discover or bring this evidence from the mediation. Third, you need to show that your need for this mediation evidence," as I'll call it, "outweighs the interest in maintaining confidentiality in the mediation."

 

 

All three, one plus two plus three, all three have to be shown. At this case, the court said that Mandl, our former CEO, was not able to show all three. In fact, he wasn't able to show a single one. He wasn't able to bring evidence from the mediation. Very quickly, in fact Don Swanson sums this up very nicely in his book, and he explains that, in relation to the first point, Mandl was seeking a blanket lift of the veil of confidentiality. He said, "We just need to see what happened at the mediation." He didn't submit any specific request, right? He didn't show a special need. He just wanted to look into it generally. That first point wasn't substantiated.

 

 

In relation to the second, the court said, "There's no unfairness from a lack of discovery because you could have got this evidence through other means. For example, through responses to interrogatories or depositions. You haven't shown any resulting unfairness here. Third, based on one and two, you definitely haven't shown that there is a need for your evidence that outweighs the interest in maintaining confidentiality." The court also said, "There is a presumption that mediation confidentiality prevails." You really have to show something extraordinary to encourage the court or convince the court to lift this veil of confidentiality.

 

 

Otherwise, if people thought the court was just going to breezily, easily set aside the confidentiality rules, well, parties might not want to use mediation, or might just be not forthcoming in mediation.

 

Aled Davies:

These three criteria together sounds like justifying an exception to mediation confidentiality, is that right?

 

Nadja Alexander:

Yeah, that's what it seems. They seem, to me, on my reading of them, to be fairly reasonable points. If you can show these three elements, there's a good case for lifting the veil of confidentiality. If you can't, then you need to keep confidentiality to protect the integrity of the process. It does seem, to me, to be consistent with a lot of the exceptions in other countries, particularly other common law countries.

 

Aled Davies:

I was trying to make some connexions between evidence ... We're in the US. I can't not bring Trump into our show, but I don't want us to get into a political conversation. Something that struck me, it actually relates to a mediation I had very recently. I don't know if you've been following the whole Trump inauguration and the catastrophe, the trail of destruction that he's laid in his wake for the last few weeks, but it all started, by all accounts, with him disputing the number of people that attended his inauguration.

 

 

He claimed that it was the most well-attended inauguration ever. I found some interesting studies, one particularly that struck me, by a crowd scientist.

 

Nadja Alexander:

A crowd scientist?

 

Aled Davies:

This guy is a crowd scientist. It's his job, studying crowds. A chap called Keith Still, who conducted a scientific analysis of the crowd size at Donald Trump's inauguration. He compared aerial photographs of Washington Monument during Obama's 2009 Oath of Office, it happens at noon, with aerial photographs of the same plot of land, at the same time, noon, during Trump's inauguration. They were different. The only conclusion that you could draw was that there were far more people that attended Obama's inauguration than there were there at Trump's, by a factor of 10 at least. He went on further to explain how Trump could be confused by this.

 

 

Obviously, Trump, when he was addressing the people that attended his inauguration, he had one perspective. It wasn't an aerial perspective. He could obviously see thousands of heads as far as the eye could see. From his perspective, as far as he was concerned, it was well attended. But obviously the data tells us something different. In that respect, there is as truth, but there are also perspectives. Follow me on this one, now. There was a mediation I was mediating recently. I was stuck. I found myself stuck and struck. I had a meta-moment. One party was adamant about the facts of what had happened in this particular case. The other party had a completely different recollection of events. They were poles apart. There wasn't any grey area.

 

 

This is what happened or this is what happened. I've experienced that a lot in mediation, but I was struck by it. I wasn't quite sure what to do next, how to address each party's truth. Not that I wanted to address their truth, not that I felt that we were there to figure out who was right and wrong, but they just couldn't get past, and I just didn't know what to do. I was thinking to myself, "What should I say next?" Then I was thinking to myself, this is all happening in the mediation, then I was thinking to myself, "I must find someone on this planet to do an interview with, or a little course with, on tactics to address moments like this."

 

 

That's the connexion, really.

 

Nadja Alexander:

Meanwhile, I'm thinking, until you find that person on this planet, which I know you will, that sounds like a really great question of the week, Aled.

 

Aled Davies:

That does sound like a great question of the week. Okay, so let me formulate this question.

 

Nadja Alexander:

Yes. Yes.

 

Aled Davies:

As a mediator, when you encounter two parties that are entrenched in a particular perspective, that they are willing to throw everything else out of the window just to be proved right, how do you intervene in a moment like that in a mediation? What could you say? What could you do? Not necessarily to move the parties on, but just to, I don't know ... Short of saying, "That's your perspective and that's your perspective," and short of giving them a little tutorial on the ladder of inference or short of showing them aerial photographs of Donald Trump's inauguration, short of doing all of that, what could you say that would be thoughtful, that might help the parties reflect on, "Perhaps there is a different perspective." I don't know.

 

Nadja Alexander:

What can you offer parties when they are so entrenched or wrapped up in completely different realities?

 

Aled Davies:

There we are. Beautifully, eloquently summarised. Thank you very much, Nadja. If you're watching this show and you are inclined to suggest a tactic, a strategy, point us in the right direction, or in any direction, please put them in the comments box. We'll be eternally grateful to you. I think that's it for this week, Nadja. Our 10th show. I'm looking forward to show number 20. Hopefully, we'll improve our format, improve the quality of our reporting and we will bring you show number 11, which will be even slicker, more informative, more illuminating, and outrageous.

 

 

Thank you, everyone. It's goodbye from me in London.

 

Nadja Alexander:

And goodbye from me in Singapore.

 

Aled Davies:

Until next week.

 

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