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Archive for the ‘Mediation’ Category

On June 25, 2015 there is a talk in the Upper Lecture Theatre of the King’s Inns from 6–7pm on the dispute process known as med/arb. Many law students and practitioners will be familiar with the individual use of mediation or arbitration as an alternative to the court system. Ms Justice Laffoy, of the Supreme Court, chairs the event where Scotland’s leading mediator John Sturrock QC will discuss with well known Irish barrister John Gordon as to the circumstances where allowing for the use of arbitration after an unsuccessful mediation has already occurred may be helpful.
Arran Dowling-Hussey, a friend of mine with whom I share the distinction of being a Consultant with the Kolkata-based legal boutique arbitration specialists, KoVe Global, called my attention to this event, still anticipated at the time of writing.
As a layman, I wondered why lawyers thought the matter in need of study when nothing seemed simpler than for two parties in conflict to say, to a friend, “We have a problem. Would you please be so kind as to help us find an agreement and, if an agreement isn’t possible, please decide the issues for us? We’ll abide by your decision.”

What more was there to say? Well, I don’t suppose the word ‘friend’ would be very welcome to my lawyer colleagues. Although the Commerçants of yore would appeal to one of their own, sometimes but not always a doyen of the trade or profession, to resolve their differences – at the traders in the commodity markets of London still do – the law works very differently. Ignorance is not merely bliss; it’s a prime qualification. Think of the wonderful dicta of London Judges. Folk of a certain age will recall the Judge who asked “Who are the Beatles?” at the very height of their fame.

The Canon Law regarding who may and who may not marry is embodied in a Table of Kindred and Affinity in the Book of Common Prayer. A man may not marry, for example, his wife’s daughter’s daughter; a woman may not marry her father’s mother’s husband. It’s a complex enough list but is as nothing compared with the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration, of 27 pages. The idea of appointing as arbitrator someone you both know and trust horrifies the IBA, as does, by implication, the idea of seeking the judgement someone whom you know to understand your business.

That Justice is blindfolded, everybody knows. Except that she isn’t. There are statues of a blindfolded justice, of course. I haven’t attempted a formal census, but there seem to be as many representations of Justice sighted as there are blindfolded. Sometimes she wields the great sword of state, almost always the symbolic scales that share her name. Symbolic, of course, of Jus, of what is right and true, while the sword symbolises the Imperium, the coercive power, of the State.

Two important examples of statues of a Sighted Justice are the Statue of Peace through Justice at the Peace Palace in The Hague and the Statue of Justice in London atop the dome which caps the Central Criminal Court in Old Bailey. I’ll return to the value of sighted Justice later. For now, I am concerned with those two symbols – the scales, Jus and the sword, Imperium. Together, they represent the decision-making power of the state and its coercive authority. Power and authority that are vested in the Court.

It is not unusual to see it said that arbitration exercises Jus and not Imperium. I’ve said as much myself, but it oversimplifies the matter. Jus is the product of public judicial reasoning and, depending upon the competent jurisdiction, binds all who fall within that jurisdiction. Where the doctrine of stare decisis is observed, it becomes a part of the system; where stare decisis is not the rule, it yet will be persuasive.  Arbitrators have no coercive power and no public authority. An Arbitrator’s Award is merely a statement of what a private person has said should be done, no more and no less. Unlike a decision of the Court the Award binds no-one but the parties. Even the parties are bound only by their own agreement.

Arbitrators have no coercive power and no public authority. An Arbitrator’s Award is merely a statement of what a private person has said should be done, no more and no less. Unlike a decision of the Court the Award binds no-one but the parties. Even the parties are bound only by their own agreement.  Interestingly, because the logical effect of the Award is not a product of the legal process of any state, it has no territorial limits. It is in the same words and says the same things wherever it is taken.

Interestingly, because the logical effect of the Award is not a product of the legal process of any state, it has no territorial limits. It is in the same words and says the same things wherever it is taken.That simple fact is celebrated in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York 1958 (NYC or NYC 1959). This Convention, to which 155 Nations have subscribed at the time of writing, does not alter the Awards, which remain true wherever they are found. What it does

That simple fact is celebrated in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York 1958 (NYC or NYC 1959). This Convention, to which 155 Nations have subscribed at the time of writing, does not alter the Awards, which remain true wherever they are found. What it does is ensure that an arbitration agreement or an arbitral Award will be recognised and, more importantly, that the process for enforcement will be no more onerous than it would be for a domestic Award.This last provision if important because enforcement is the link between the Award and the Law. Often, parties will comply with the Award of their own volition. No Convention, no law is necessary. However,

This last provision is important because enforcement is the link between the Award and the Law. Often, parties will comply with the Award of their own volition. No Convention, no law is necessary. However, most legislation provides that, provided certain essential requirements are met, an Award will be given the authority of a Court judgment and enforced by the Court. Courts will respect the private agreement of the parties as the source of the Award and will not seek to reopen the arbitrator’s fact-finding decision.

The great difficulty of connecting mediation with arbitration is not the inadvertent remark of the neutral during the discussion. Professional care should prevent that. The prime difficulty is the so-called caucus when the mediator moves between the two (not more, please!) consulting them each on a without-prejudice basis.  It is argued that the mediator, having learned privately what the two parties are expecting, hoping, or prepared to achieve, would apply that knowledge if later required to act as arbitrator.

This argument ignores two factors: first that nothing revealed without prejudice can be evidence in the matter; secondly that nothing capable of being evidence may be concealed knowingly.  In addition, modern arbitrators generally have to support their Awards by logical reasons.

I suggest that there is little difficulty if caucusing is not to be attempted; if it is, however, it would be as well to have the written agreement of the parties to the detailed procedure.

Of course, arbitration can be used to settle the entire dispute when mediation has failed. It can also be used in the course of mediation to determine a knotty point – perhaps of law but possibly of fact – to enable the mediation to progress.  Good luck to all my friends in Dublin.

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Result of Linkedin poll

I ran a poll in a Linkedin group recently.  The question was: When one is asked to accept appointment as neutral – such as mediator, co-arbitrator, chairman, umpire or sole – and one of the Parties is a 1st, 2nd, or 3rd level friend in Linkedin, should one:

  • Decline  3 (11%)
  • Decline if 1st level only  1 (3%)
  • Accept but declare the connection  16 (59%)
  • Accept but declare 1st level only  2 (7%)
  • Accept and say nothing  5 (18%)

I offer the result without comment.

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For Mediators (and others)

Let me pose a problem – perhaps it’s not really a problem. It’s a true tale (more or less) from the 1990s or thereabouts.

My friend Harry (no, not that one) is a mediator. He is called in by the Acme Book Company Ltd to resolve a dispute with their New Sussex sales agent whom they propose to terminate (just her employment). It is intended to conduct all provincial sales online. They are offering a severance payment in excess of the statutory norm but require an agreement that she, we’ll call her Delia, will not work in the New Sussex book trade for five years after termination.

Niccolo Machiavelli. the owner of Acme Books mentions, in caucus, that he knows that Big River would like to engage Delia, because they know what a good job she did representing ABC at the New Sussex Book Fair last year. Niccolo reminds Harry that secrets of a caucus must be kept. The severance payment is a mere fraction of what Delia might earn in a few months with Big River. Let’s say that there aren’t many jobs around.

Q1 What does a mediator do now?

Q2 Does it make any difference that ABC is likely to be a source of repeat business?

Q3 Does anyone believe the answer to Q2?

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