Transborder Mediation Knowledge, ethics and skills Professor Dr Nadja Alexander Australian Centre of Peace and Conflict & European University Viadrina, Germany Professor Dr Nadja Alexander Australian Centre of Peace and Conflict & European University Viadrina, Germany

Mediator Skills  Individual personal skills and attitude of the mediator is the most significant factor in party satisfaction Rosenberg and Folberg, 1994

Overview 1. Transborder Mediation 2. Meta Model of Mediation 3. Mapping the Agenda Setting 4. Global Trends in Mediation 1. Transborder Mediation 2. Meta Model of Mediation 3. Mapping the Agenda Setting 4. Global Trends in Mediation

Overview of Australian mediation  Community mediation  Private sector mediation - commercial, family, succession, construction, workplace, criminal, personal injury…  Court-related mediation  Community mediation  Private sector mediation - commercial, family, succession, construction, workplace, criminal, personal injury…  Court-related mediation

Part One: transborder mediation Part One: transborder mediation

New disputants and disputes  Technology as an equalizer  E-commerce and e-conflict  International B2B is not limited to transnationals  The rise of indigenous resource rights around the world affects transacting and disputing  Technology as an equalizer  E-commerce and e-conflict  International B2B is not limited to transnationals  The rise of indigenous resource rights around the world affects transacting and disputing

Regulation of Transborder Mediation  UNCITRAL Model Law on International Commercial Conciliation  EU Draft Directive – debate about coverage of cross-border disputes  European Code of Conduct  UMA  UNCITRAL Model Law on International Commercial Conciliation  EU Draft Directive – debate about coverage of cross-border disputes  European Code of Conduct  UMA

Organisations specialising international private dispute resolution  ICC  MEDAL  Singapore Mediation Centre  Hong Kong International Arbitration Centre  International CPR initiative  ICC  MEDAL  Singapore Mediation Centre  Hong Kong International Arbitration Centre  International CPR initiative

Issues in Transborder Mediation  Diversity v Consistency  Standards and accreditation  Legal issues  Mediation clauses  Good faith in mediation  Confidentiality  Role of professionals  The mediator who pushed too much  On-line mediation   Diversity v Consistency  Standards and accreditation  Legal issues  Mediation clauses  Good faith in mediation  Confidentiality  Role of professionals  The mediator who pushed too much  On-line mediation 

Court-related Mediation  Seduction – Judges without any formal power  Dating – Judges with power and consent  Marriage – Judges with power and no consent  Separation – Concerns about future of courts  Arranged marriages – R outine part of litigation and pre-litigation process  Seduction – Judges without any formal power  Dating – Judges with power and consent  Marriage – Judges with power and no consent  Separation – Concerns about future of courts  Arranged marriages – R outine part of litigation and pre-litigation process

Consent for court-connected mediation increased in Qld Australia

Sign of the Times ? Quick Cheap Good Choose Any Two Quick Cheap Good Choose Any Two

Part 2: Mediation Meta-Model

INTERACTION DIMENSION INTERVENTION DIMENSIONINTERVENTION DIMENSION Mediation Meta-Model PROCESS Settlement Mediation Facilitative Mediation Transformative Mediation POSITIONAL BARGAINING INTEREST-BASED NEGOTIATING DIALOGUE PROBLEM Expert Advisory Mediation Wise Counsel Mediation Wise Elder Mediation © Nadja Alexander 2007

Part 3 Mapping the agenda

Agenda Setting The Purpose of an Agenda is to… identify broad topic areas of concern identify specific issues to be discussed frame issues in a non-judgmental manner determine the sequence to discuss issues

Agenda Setting Agenda items can reflect:  Legal or technical positions  Party interests: substantive, relationship, procedural  Community concerns  Human needs Agenda items can reflect:  Legal or technical positions  Party interests: substantive, relationship, procedural  Community concerns  Human needs

Interests Procedural RelationshipSubstantive

Global Themes in Mediation ADR DDR EDR JDR MDR ODR PDR TDR ADR DDR EDR JDR MDR ODR PDR TDR

MDR Practice  The growth of mediation in multi- tiered or blended processes  Mediation windows  Med-arb  Co-med-Arb  Arb-Med-Arb  Arb-Co-med-Arb  And… combinations with expert appraisal  The growth of mediation in multi- tiered or blended processes  Mediation windows  Med-arb  Co-med-Arb  Arb-Med-Arb  Arb-Co-med-Arb  And… combinations with expert appraisal

Challenges of MDR  Compromise of two fundamentally different processes  How to define process (Channel Tunnel Case)  Settlement terms may not be suitable for an award  Post settlement, no dispute and therefore no award possible  Compromise of two fundamentally different processes  How to define process (Channel Tunnel Case)  Settlement terms may not be suitable for an award  Post settlement, no dispute and therefore no award possible