Nadja Alexander
Office:
Singapore Management University
School of Law
55 Armenian St
179943
City:
Singapore
Country:
Singapore

Questions and Answers:

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Nadja Alexander specialises in cross-cultural and cross-border disputes involving corporations, countries and communities. Three decades of engagement as a mediator, dispute resolution adviser and systems designer have taken Dr Alexander to more than 35 countries and led to her current role as director of the Singapore International Dispute Resolution Academy. Described as a practical thinker and a thinking practitioner, Nadja is internationally regarded for the passion, energy and creativity she brings to her work. See www.nadjaalexander.com.

What made you decide on a career in mediation?

Mediation chose me rather than the other way around. In the late 1980s, most lawyers were not interested in mediation. Early in my professional career, I was given a couple of great opportunities to facilitate problem-solving processes for corporate and government clients. I embraced the challenge and never looked back.

What attracted you to Singapore as a place to work?

Singapore has an exciting vision for cross-border mediation and international dispute resolution, and a steadfast commitment to making this a reality. It’s a dynamic place to work with a “can do” attitude.

You work both as a mediator and on disputes system design and policy advice. To what extent do the two sides of your practice complement one another?

Practice provides an opportunity to road test, design and gather evidence to validate policy and theory. Each mediation process involves design elements, whether I am dealing with two unrepresented parties in a partnership dispute, or multiple private and public parties with professional advisers in a complex cross-border matter.

Working on mediation legislation in a variety of countries has afforded me insights into the problematic gaps between policy and practice and how this can negatively impact users of mediation. As a practitioner, I can adjust for this in my mediation agreement with clients, and in how I practise.

I was privileged to accompany the Singapore delegation to UNCITRAL Working Group II as it was deliberating what is now referred to as the Singapore Convention on Mediation. The opportunity for “pracademics” like myself – professionals directly engaged in R&D and practice – to contribute first-hand insights from evidence-based practice to high-level policy discussions is invaluable for the policy-making process.

How do you expect the Singapore Convention on Mediation to impact practice?

This will be the most significant UN Convention for this generation of disputes

lawyers. The Singapore Convention will promote the practice of cross-border commercial mediation as the New York Convention did for international arbitration.

The impact of the Singapore Convention will be felt in international arbitration and litigation circles also. As users’ confidence and familiarity with mediation increases, we are likely to see more cross-border mediation processes not just as stand-alone dispute resolution mechanisms but also integrated into multi-tiered dispute resolution clauses and procedures. The Singapore International Mediation Centre’s arb-med-arb protocol is indicative of this trend. Moreover, international courts and arbitration institutions are increasingly incorporating mediation in their practice directions and rules respectively. I anticipate greater diversity in the range of clients who are attracted to mediation and more sophisticated use of tailor-made dispute resolution mechanisms integrating mediation.

How are the increasing collaborations between commercial courts and other channels of dispute resolution shaping the field of mediation?

Collaboration among litigation, arbitration and mediation institutions is a sign of a sophisticated dispute resolution ecosystem. It’s not just mediation practice that is being shaped, it’s the entire field of private international law. We are seeing the growth of private legal hubs such as Singapore, Dubai and London, with their own governing laws for cross-border commercial litigation, arbitration and mediation, as users increasingly look for greater certainty and control in managing business risk in a time of unpredictable international economic relations. These hubs are home to dispute resolution ecosystems that are at once robust and flexible: sufficiently robust to survive challenge and maintain legitimacy, sufficiently flexible to apply general frameworks to individual circumstances.

To what extent does apology legislation encourage clients and lawyers to move into the mediation process?

The aim of apology legislation is to create a “safe space” to apologise without being concerned that the apology may be subsequently used as evidence of fault or liability. The experience from a range of jurisdictions (nearly 60 have enacted apology legislation) shows that apologies can prevent the escalation of disputes and facilitate their amicable resolution, for example through mediation. The power of apology is enhanced where disclosure and appropriate offers to settle take place in mediation. This is referred to as the DAO of settlement – disclosure, apology and offer.

Third-party funding has been permitted for arbitration in Singapore. Would it be beneficial for this to be expanded to mediation as well?

The Singapore legislation extends to mediation arising out of arbitral proceedings such med-arb or arb-med-arb, but not to stand-alone mediation. Third-party funding for mediation is a different risk proposition and must be assessed through a different lens. What role do third-party funders play in the mediation room? To what extent can they influence the substance of a settlement, and its timing? Can third-party funders veto a settlement to which the parties would otherwise agree? These types of questions need to be considered on a case-by-case basis and form part of the larger task of strategically designing a mediation process.

How significant is the role of mediation in investor-state dispute settlements at present?

There is a lot of interest in developing mediation within the current dispute settlement system either as a stand-alone process or as an element in multi-tiered dispute resolution procedures. The flexibility of mediation allows a well-designed mediation process to be tailored to the parties’ needs, which are driven by legal, political, economic and cultural priorities. Stakeholders’ shifting interests can be better accounted for; issues such as the call for greater transparency in investor-state matters can be addressed as part of the design phase.

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