International Commercial Mediation Update: Preparing for Mediation
Updated: Jul 30, 2019
As the August 7 signing ceremony for the Singapore Convention draws near, here are some thoughts for parties to consider before launching in to a mediation.
In this post, I’ll review factors to consider in preparing for mediation. Further, leading up to the signing, this blog will feature additional tips on structuring the mediation process, opening sessions, negotiation, impasse, and settlement considerations.
Last year, the United Nations Commission on International Trade Law (UNCITRAL) Working Group II finalized the draft Convention on International Settlement Agreements Resulting from Mediation, to be known as the Singapore Convention; draft Model Law was finalized as well. Subsequently, the Convention and Model Law were approved by the General Assembly and we now await the August 2019 signing ceremony in Singapore.
The Convention and Model Law outline the requirements for a settlement agreement, process for enforcing an agreement and grounds for refusing to grant relief. The documents are seen as completing the ADR framework for international disputes.
Throughout the process of drafting and considering the Singapore Convention, hope was consistently expressed that it would do for mediation what the New York Convention has done for arbitration.... Historically, many parties and states have expressed reticence to leverage mediation in international disputes for fear of the inability to enforce settlement agreements across borders.
As I have previously reported (See International Commercial Mediation: Brief Update on Developments in Enforceability; International Commercial Mediation Update: UNCITRAL Working Group II Moves Forward on Convention and Model Law; and International Commercial Mediation Update: UNCITRAL Finalizes Convention and Model Law Drafts on International Settlement Agreements Resulting from Mediation), the Convention offers significant opportunity for international parties to leverage mediation as a tool for expedient and cost-effective settlement. To that end, here are some ideas on how to start the mediation process and best prepare for a productive negotiation.
Is the dispute ripe for mediation?
Over the past twenty years I have served as mediation advocate, in-house advisor, and mediator. Having mediated and studied the practice of mediation for years, the best answer to the question posed above is... as soon as possible.
Once a dispute arises and parties are unable to find a solution for themselves, it is sensible to call in a mediator. Why? A good mediator not only brings a fresh perspective, expert negotiation skills and the ability to help forge solutions that parties can’t otherwise see... mediators help parties save the time, cost and exasperation involved in protracted disputing.
Having studied the efficiency and and cost savings associated with mediation of commercial disputes, I can say with certainty that I have never seen a mediation that wasted time or money. Even if the case doesn't settle on the spot, it will either settle soon after the mediation or some other positive outcome will arise because of it.
Who is the best mediator for your dispute?
People feel passionately about this question. Do you need a judge? Or fear they might be too heavy handed? Is subject matter experience a must? Or is it better to retain someone who knows how to run an efficient process? What about gravitas? Or does imply that a woman can’t do it as well?
Many people say this is the most important part of the mediation... The mediator. I don’t agree. The parties’ commitment to a fruitful process is most crucial. And so the most important characteristic of a mediator is that both sides respect and trust her.
Unlike arbitration, mediators almost always have ex parte communications. This can happen before appointment is made as well. If you want to know if a mediator can handle your dispute, call her and interview her. I do this all of the time.
If your counterpart feels strongly about working with a particular mediator, you should probably go with it. By doing so, you make an early showing of good faith and building trust in negotiation is important for good discussions and settlements.
How to develop a negotiation plan?
After the mediator is selected, talk to her. Tell her why you need assistance with negotiation and what the negotiation history has been so far. A capable mediator will help you develop your negotiation plan. You may also provide the mediator with requests or instructions in advance of the event.
I often recommend that parties draft their own versions of an ideal settlement agreement before the session begins. This way, parties arrive at the mediation with template agreements in hand and in mind - knowing that the final version will look much different than their initial write up. This also helps to reinforce for each side what is most important to them in resolving the dispute.
Go in with an open mind.
Once preparations are done and it’s showtime, know that every mediation has a life of its own. For the most positive experience, keep an open mind. Cultivate empathy for those folks sitting across the table from you. Even if you don’t think they deserve it. Letting go of judgments, resentment, or ill will sometimes seem insurmountable. But doing so makes for a more productive discussion and a better path to the conclusion of the dispute.