TEN TRENDS IN INTERNATIONAL MEDIATION

• Author: Nadja ALEXANDER BA, LLB (Hons) (Qld), Dip International Studies (Vienna), LLM D Jur (summa cum laude) (Tübingen); Professor, School of Law, Singapore Management University; Director, Singapore International Dispute Resolution Academy.
• Publication year: 2019
• Citation: (2019) 31 SAcLJ 405
• Published date: 01 December 2019
• Date: 01 December 2019

I. What is “trending” in international mediation?

1 In this article the author identifies and explores ten trends in international mediation, that is, mediation of cross-border disputes. The article begins with outlining the diverse demographic of cross-border disputants who engage in mediation, the evolving practice areas of international mediation and the accompanying institutional developments, before moving on to consider the progress made towards an international legal framework for cross-border mediation. The professionalisation of mediators and the emerging specialisation of mediation advocacy are then explored, followed by variations on

international mediation practice models, the use of mediation in multi-tiered dispute resolution (“MDR”), and the growing sophistication of online dispute resolution (“ODR”). The final two trends consider the impact of apology legislation and third-party funding on mediation internationally. The terms “cross-border” and “international” are used interchangeably.

II. Trend 1: Changing profile of cross-border disputants

2 The profile of cross-border disputants is changing, and with it the nature of international dispute resolution and the growth of mediation in this area. The increasing accessibility of the Internet and the corresponding growth of micro and small business enterprises engaging in international commerce have contributed to a significantly higher volume of international transactions and, as a result, international disputes. Consider for example, the Pandora's box of cross-border disputes, which have emerged as a result of business-to-consumer (“B2C”) and business-to-business (“B2B”) online transactions. Consumers increasingly purchase goods online from the comfort of their own homes, blissfully unaware of the place from where the goods are shipped, and when and where in time, space and geography they have entered into the purchase contract. When a problem arises and small business owners or consumers seek redress, they may – unexpectedly – find themselves engaged in an international dispute.

3 Small business owners and consumers are not the only new kids on the cross-border mediation block. Separated parents residing in different parts of the world may find themselves caught up in deeply complex family conflict, as evinced by cases of international child kidnapping.1 Today's global mobility has seen an increase in these types of disputes; here mediation may be used to support dialogue and negotiation between parents.

4 In yet another illustration of this changing demographic, the profiles of stakeholders in the international investment community have diversified to include e-traders, women and small-business entrepreneurs. The nature of ownership of major industry players – such as in health, utilities and public transport services – have broadly been transformed from mostly State-owned or State-run departments into private (or partially privatised) businesses. Moreover, political and legal changes in some parts of the world have provided traditional people with a degree of self-determination. This has in turn given them a voice

in making decisions about their future, particularly in relation to how the resources attached to their land and seabed areas are used and by whom. Here village chiefs can find themselves sitting across the negotiating table from mining executives, venture capitalists and government ministers as they sort through complex issues connecting law, economics, employment, housing, environmental and resource issues, public policy, culture, human rights, and customary law.

5 This first trend highlights how all sorts of people are finding themselves engaged in cross-border disputes, including (online) consumers, small business operators, parents and chiefs in remote indigenous villages. Increasing diversity in the characteristics and needs of disputants in cross-border disputes has enhanced the appeal of mediation as a flexible, informal and relatively cost-effective forum.

III. Trend 2: Opening up of international mediation practice

6 As international mediation continues to gain traction especially in the commercial sphere, we observe the development of institutional capacity to serve the needs of disputants and professional mediators operating in this changing dispute resolution landscape. The mid- to late 1990s signalled the beginning of the institutionalisation of cross-border mediation services. International commercial arbitration institutions – such as the International Chamber of Commerce (“ICC”) in Paris,2 the London Court of International Arbitration3 and subsequently the Asian International Arbitration Centre4 – began to offer international mediation, while national organisations – such as the Resolution Institute in Sydney,5 Alternative Dispute Resolution (“ADR”) Centre in Rome, Centre for Effective Dispute Resolution in London, International Institute for Conflict Prevention and Resolution in New York and JAMS in California – began to extend their existing mediation services and facilities across borders. A more recent development has been the establishment of organisations dedicated to the provision of international mediation services, such as the Singapore International Mediation Centre (“SIMC”),6 the Japan International Mediation Centre-Kyoto7 and new organisations focusing on both international mediation

and arbitration services such as the Bali International Arbitration and Mediation Centre.8

7 In most cases, international commercial mediation is founded upon flexible and mutually derived contractual arrangements, and can take place on an ad hoc or institutional basis. International commercial mediation has been successfully used in a range of sectors including manufacturing, mining, construction, intellectual property, and insurance and reinsurance.9

8 In addition to institutions that offer commercial mediation for cross-border disputes, institutions specialising in specific practice areas of international mediation are emerging. Specialisation areas include consumer e-disputes, family, intellectual property (“IP”), investor–State disputes and State-to-State disputes. A number of illustrations follow.

A. Mediation of consumer e-disputes

9 E-commerce and e-conflict have contributed to a proliferation of institutional ODR service providers across borders serving B2B and B2C disputes. Consumer e-mediation for cross-border disputes has increased dramatically in recent years especially with frameworks such as the European Union (“EU”) online dispute resolution platform. Trend 810 on ODR addresses online consumer mediation.

B. Family mediation

10 Cross-border family disputes about parenting and property division are increasingly deliberated in alternative venues to the courts, especially in relation to child kidnapping cases. The issues which may arise from cross-border family disputes are complicated, owing in part to the advent of modern communication and transport technology. Further, they emerge from deeply embedded conflict behaviour between the parents that cannot be addressed within the confines of international legal proceedings.11

11 Mediation is well suited as a dispute resolution mechanism for these and other kinds of international family disputes.12 Numerous organisations have been established to support the mediation of such cross-border family disputes. They include Reunite (UK),13 Mission d'aide à la médiation internationale pour les familles (MAMIF) (France),14 Médiation familiale binationale en Europe (MFBE) (Germany/France),15 Lawyers in Europe on Parental Child Abduction,16 and the International Social Service (“ISS”) based in Geneva.17 At the time of writing ISS has convened a series of meetings called the Collaborative Process, the work of which has generated a set of core principles for the conduct of international family mediation. The Collaborative Process continues to work on establishing a global network of international family mediators with accompanying terms of reference and oversight bodies.18

12 In terms of cross-border regulatory instruments,19 the Hague Conference on Private International Law has produced three relevant Conventions. The first is the Hague Child Protection Convention of 199620 (“1996 Hague Convention”) that promotes the use of mediation

with respect to matters that fall under the Convention.21 The Hague Adult Protection Convention of 200022 is a sister convention reflecting much of the 1996 Hague Convention in the context of vulnerable adults. Finally, the Hague Child Abduction Convention of 198023 also makes provision for mediation. In addition, council regulations, directives and recommendations have been adopted that specifically relate to cross-border family mediation, reinforcing support for mediation in family disputes.24

C. Intellectual property mediation

13 In terms of intellectual property (“IP”) mediation, World Intellectual Property Organization (“WIPO”) and the European Union Intellectual Property Organisation are the primary institutional providers.25 Service providers for the Internet Corporation for Assigned Names and Numbers'26 Uniform Domain Name Dispute Resolution policy include the Asian Domain Name Dispute Resolution Centre,27 the National Arbitration Forum28 based in the US and WIPO. In Singapore,

the Singapore Mediation Centre also offers the Singapore Domain Name Dispute Resolution Service, by which parties are invited to consider mediation; otherwise, the dispute is resolved by an Administrative Panel pursuant to the Singapore Domain Name Dispute Resolution Policy.29 The WIPO Centre has administered more than 580 mediation and arbitration cases between 2009 and 2017;30 for mediation, it boasts a settlement rate of 70%.31 Further, in the US, intellectual property showed the highest growth in mediation use of any specialty area between 1997 and 2011.32 From a legal perspective, the territorial nature of IP rights...