Week 3 Mediation (II) Flashcards
What are the main characteristics of mediation?
Voluntariness:
- Consent as voluntariness is the key - both parties must voluntarily agree to forego court litigation.
Confidentiality:
- Everything is confidential and proceedings and everything discussed cannot be public, even after the mediation is over. E.g., if the case goes to Court, the confidential information disclosed during mediation cannot be used/disclosed in Court
Why is confidentiality good in mediation?
Because personal information can be disclosed during the dispute resolution, and so parties don’t have to worry about that and can be totally truthful. Also, since trade secrets/intellectual property is weakly protected in the Netherlands, so it is better to use mediation to protect that secrecy through confidentiality promised by mediation.
Aspect to think of when determining which dispute resolution to choose
- Determining which type of dispute exists is helpful… however, this is only useful when there is already a dispute… a dispute resolution clause is negotiated when the parties are good with each other
- E.g., take a look at whether the two parties really need each other? I.e., can party A choose another supplier? If yes, then there really isn’t a need to invest in a continuous relationship
E.g., Party A and B are good friends and want to have a continuous relationship, so mediation would make most sense.
E.g., issue regarding building a road, would make most sense to go to Court, especially if it’s about a lot of cost involved and the cost is the legal point of contention
What dispute resolution should you use for a commercial/personal relationship?
First mediation, then arbitration, or litigation
What dispute resolution should you use for a continuous relationship?
May use mediation because the parties need each other (need the relationship to continue, and mediation is obviously most amicable solution)
What dispute resolution should you use if the convention is around a legal-based issue?
There is nothing relationship about this, so the only goal is to solve the dispute through litigation or arbitration (depending on if confidentiality is desired)
Design of the proceedings for litigation
Prescribed by law and no flexibility for the parties to design the proceedings
Design of the proceedings for mediation
There are model rules such as the ICC Mediation Rules. Parties are granted freedom in how they want to design their mediation.
Design of proceedings for arbitration
You have relative freedom to design the proceedings and are not bound by civil law procedural rules. Lex arbitri is the most important.
Special expertise in litigation
Court can call for expert witnesses but in civil law jurisdictions, the Court decides whether an expert is appointed and who it will be so parties have no influence on that
Special expertise in arbitration
In arbitration, the parties can choose arbitrator(s) that have expertise in the field.
Special expertise in mediation
In the US, mediators do not met with both parties at the same time and they tend to give their own advice because they have expertise in the field.
In Europe, you would not do that as both parties are talking to the mediator together and the mediator does not give his own advice but rather is just trying to find the underlying problem to the conflict.
What is the theoretical advantage of mediation?
Because that solution has been reached by the parties themselves and not been imposed by a third party like a judge or arbitrator which also leads to mediation settlement agreements that are compiled by the parties so there would not be much need for enforcement (for which you need to go to litigation which will create unnecessary steps)
If you know that you need to enforce the end agreement, what dispute resolution(s) best?
Arbitration or litigation
Singapore Convention
UN Convention on International Settlement Agreements Resulting from Mediation (2019).
EU voted against adoption.
Go to notes and just glance over where certain articles are - know Articles 1 - 5 of the Convention
