Independent Senator and Dialogue Solutions Director Anthony Vieira’s speaking notes on Mediation- at a presentation on 3 October 2019 at the Law Association of Trinidad and Tobago.
Mediation is defined under the Mediation Act as a process in which a mediator facilitates and encourages communication and negotiation between the mediation parties, and seeks to assist the mediation parties in arriving at a voluntary agreement. There is no universally accepted model of mediation, and there are a variety of models.
The Mediation Act defines the process as including the mediation session together with all administrative processes and procedures leading to and necessary for the conduct of the mediation and all processes and procedures after completion of the mediation session ending with the signing of the mediation agreement or, if there is no agreement, when the mediation session is otherwise terminated.
Instructive to observe that we have specific legislation for mediation, since 2004 (over 15 years now). One of the first countries in this regard.
Interesting to observe that under the Act the Mediation Board is required to maintain a register of certified mediators; there is a Code of Ethics, and there are Disciplinary Regulations. Mediation, therefore, is a regulated profession.
There are important provisions under the Act treating with:
These are very useful for maintaining the integrity of the process and gives real comfort to the participants. In countries where these statutory protections don’t exist, one must rely on the mediation agreement – and that can be the subject of heated and uncertain litigation.
Mediation is recognized as a valid process; certified mediators are regulated as professionals; the process is now mainstream. In many commercial agreements, mediation features under dispute resolution provisions. A number of regulators also use mediation as an option for resolving disputes (for example under the EMA).
Mediation is seen by our Judges in the Civil Courts as having an extremely important role to play. For one thing, Courts are now increasingly being drawn into highly complex and specialized areas such as intellectual property, telecommunications, sports, construction and energy disputes. Often beyond the comfort zone of many judges and a strain on the judiciary’s burdened and limited resources.
To quote Lord Bingham:
Practitioners and judges must recognize that the complexity and range of modern government, the increasing sophistication of legal issues and relationships, the demands of representative democracy, the growth of regulation and the ever-growing interdependence of national communities make it inconceivable and impracticable that the law should depend on the decisions of the Judges alone; The Business of Judging, page 383.
Not surprisingly the Civil Proceedings Rules 1998 now puts parties and lawyers under a clear duty to help the Court in furthering the overriding objective, among other things, by making good faith attempts to negotiate and to try and reach an agreement. Mediation and other forms of ADR, including Judicial Settlement Conferences, not only have the support of the Judges – they are actively encouraged.
But the main reason I love mediation is because it is the only legal process where the parties themselves determine the outcome; It puts the parties in control of the outcome without expending vast resources on litigation procedures; It avoids the high legal costs and lengthy delays which make it difficult and expensive to resolve disputes in Court; It focuses on solutions and the realistic resolution of problems; It is adaptable.
Litigation can be very disruptive to relationships (the adversarial process fans the flames of anger and hate). After litigation, parties don’t want to see – far less have any further dealings with - their opponents. Yet a good mediator can reduce acrimony and aggression and may be able to preserve or restore relations – this allows for the possibility of maintaining satisfactory relationships.
Whereas litigation requires a winner and a loser, mediation seeks to maintain relationships and to truly resolve the dispute rather than just have it determined.
Because mediation takes into account personal needs, wants, and concerns of the parties it tends to be more holistic than traditional litigation which is confined to reaching the ‘correct legal decision’ based on the pleadings, evidence and applicable law. Everything else is irrelevant and must be vigorously excluded in Court. The aim of litigation is to reach a correct decision about the respective rights and liabilities of parties in a specific situation. The assumption is that there can only be one correct conclusion, not a range of them. The Court and the parties are limited to a judgement about legal rights and liabilities.
But mediators are not in the business of judging, or about who is right and who is wrong. The goal is getting the parties to reach an agreement – one designed to give effect to their mutual interests. The original legal issues are disposed of by the agreement as an incidental matter. The role of the mediator is helping the parties find their own way.
Harvard Law School Professor Frank Zander Pithily distinguishes the two processes by describing mediation as a future-oriented process, while Court and litigation are past-oriented processes. 20 years ago when I was trying to raise awareness about the benefits of Mediation, there was much doubt and misunderstanding about the process. Indeed, some confused it with meditation. Happily, that is no longer the case.
Just recently, in fact on 7 August 2019, 46 countries signed the UNCITRAL Convention on the Settlement of Disputes, now known as ‘the Singapore Convention’. Alongside the Singapore Convention sits a new Model Law on International Commercial Mediation and International Settlement Agreements.
So mediation is now global, and especially so in the commercial world of dispute resolution.
The Singapore Convention encourages the use of mediation as a means of alternative, and largely amicable, commercial dispute resolution; and to provide a means by which settlements reached as a result of the mediation process may be enforced in Convention States – in much the same way as the New York Convention aids the recognition and enforcement of foreign arbitration awards.