On the 17th July I watched a unique webinar organised by the Judicial Offices of India and Singapore entitled “India-Singapore Mediation Summit”. It was a fascinating insight into the resolve of both jurisdictions to advance mediation as the preferred mode of resolving civil and commercial disputes and resonated with my own 20-year-old belief that resolving disputes consensually is infinitely more beneficial for the disputants than a judgment. The webinar is a timely reminder to those jurisdictions that have long embraced mediation of three essential features of mediation that they have not universally observed. First and foremost, mediation must be fair, altruistic, independent and ethical. Secondly, mediation is a profession, not a business, and mediators are expected to adhere to high professional standards. Thirdly, mediation is a flexible process that is constantly changing and adapting to the disputants, needs and there is not a single ‘right’ way to mediate. Those who conduct international mediations will have learned the need to be aware of and accommodate diverse standards, social graces and behaviours, and make appropriate adaptations to their mediation preparation and behaviour.
The webinar ended with keynote addresses by the Chief Justice of India, N.V. Ramana, and the Chief Justice of Singapore, Sundaresh Menon. Each of them expressed the desire to see mediation as the preferred choice of dispute resolution for civil and commercial disputes, not least as part of the plan to build India and Singapore as a Dispute Resolution Centre for the Far East. It happily coincides with my own current position as the recently appointed President of The International Academy of Mediators with a mandate to expand the international credentials of the Academy. IAM is a unique body of leading experienced international mediators, but, until recently the invitation-only policy has been implemented mainly in North and South America, Australasia, and Europe. There are some notable members from Africa, India, and the Far East, but far too few to properly represent the growth of mediation in those jurisdictions where recognition that mediation is a better way to resolve disputes is rapidly growing.
The Academy is in the throes of organising a worldwide Symposium over a period of five days in November this year and Spring in 2022. We plan to invite the leading mediators from all five continents with the dual aim of promoting mediation for civil and commercial disputes in those jurisdictions where mediation is still in its infancy, as well as discussing issues and topics of general interest to all mediators. We aim to use the vast experience of the 200 existing IAM Fellows gathered by them over the last 25 years since the Academy was founded. The accumulated knowledge and mediation experience is probably unique. It is the current Board’s intention to make that experience available to burgeoning mediation jurisdictions by means of pro bono online training and webinars. The Academy is not a panel of mediators, nor does it seek to promote individual members’ careers. It is deliberately invitation only because it is a pre-requisite that our members have to be established mediators and renowned in their own jurisdictions before they are considered for membership. The Board recognises that there are as yet few countries where the volume of mediations is sufficient to support the number of professionals whose practice is full-time mediation in the established jurisdictions. However, the message promoted by the India-Singapore Mediation Summit, and the increasing emphasis on mediation as a better dispute resolution process in countries all over the world, suggest that Chief Justice Menon’s observation may be more than just an aspiration.
The pandemic has changed all our lives in every country. The full effect upon our society has yet to be fully assessed but there is no doubt that it has had a profound effect upon most legal jurisdictions. The effect of lockdown upon legal systems everywhere has been to delay the trial of civil and commercial cases and increase dramatically the number of cases that are awaiting trial. It is not just legal systems that have felt the effect of the pandemic. Commercial entities have been struggling with a workforce absent from its usual workplace due to illness and compulsory isolation; parents have learned how exhausting the teaching profession actually is, especially in many cases while struggling to run their own working lives remotely; everyone has had to cope with the realities of a confined life. Businesses soon learned that remote working was the solution for most of them. Lawyers quickly adapted to working remotely. Mediators discovered the joys (and traps) of virtual mediations. After the initial shock to the system, we mediators discovered that online resolution of disputes was not only possible but highly successful.
"The real driver for ADR in most civil and commercial disputes is not so much the convenience of the Courts system, but the economic interests of the commercial entities concerned."
My group, Independent Mediators Limited, conducted a survey of all the mediations we had carried out after the first few months of the lockdown and the results were surprising. We discovered that the rate of resolution across all of our mediations was as successful as the rate in the previous year prior to the lockdown. In our experience parties adapted quite readily to the virtual process and in many instances enjoyed the freedom to carry on with their normal activities when not actually engaged in the mediation. Some lawyers expressed to me their delight that they were able to achieve a lot of other work while not actually engaged with their clients in the mediation. I refrained from inquiring whether they adjusted their fees accordingly as being an unworthy thought! Our survey revealed that 82% of those who had not mediated online, said that they would be prepared to do so, and 96% of those who had, said that they would do so again. In the last fifteen months or so we have conducted almost 600 online mediations with parties from all over the UK and abroad. The ease with which a mediation can link disputants from the Far East, Europe and the USA in one call demonstrates the economic sense of virtual mediations, especially for international commercial disputes.
Chief Justice Menon expressed the thought which most of us shared that the pandemic has forced everyone to rethink processes and change the way we traditionally conducted our lives. The law is no different. Most jurisdictions have introduced remote hearings for all interlocutory procedures, and in England and Wales, many civil and commercial cases are being heard online. Judges are learning to cope with the difficulties of hearing witness evidence remotely with all the potential drawbacks involved. Is there anyone else in the room with the witness? Are they being prompted or coached as to their answers in cross-examination? How easy is it to determine the reliability of the testimony through a screen? Most judges to whom I have spoken believe that remote hearings which involve a judgment are less satisfactory than an actual court hearing. However, procedures can and are being introduced to alleviate some of the uncertainty: requiring a representative from other parties to be present in the room from which live evidence is being given, is a very simple precaution. Arbitrations too are being conducted remotely, and, apart from interlocutory hearings, most online arbitrations seem to be conducted with at least some representatives from all parties present in the same room when live evidence is being given to an arbitrator who is sitting remotely. International arbitrators have been accustomed to hearing witnesses from outside the jurisdiction by video link for many years without many reservations and nothing much will change as far as they are concerned. However, there is a real feeling among lawyers especially that mediations are best conducted in person. The frequent cry is that we need to see the opposing parties live and face to face to able to judge their sincerity in engaging in the process. Opinions differ among mediators. Personally, I am of the view that where parties are on separate individual screens such that one can read their facial expressions more closely than being in the same room, it is quite possible to assess the individual’s sincerity. Judges who are trying cases remotely have the same problem, but from my conversations with those who sit in the Commercial Court, it is not considered a bar to trying cases virtually and more preferable than increasing the already overloaded waiting list.
The United Kingdom’s Civil Justice Council has just issued its Report on Compulsory ADR. The main issue the CJC investigated was a twofold question: can parties lawfully be compelled to mediate and, if so, whether it was desirable that they should. The Report concluded, unsurprisingly, that parties can lawfully be compelled to participate in ADR, and it identified conditions in which compulsion could be desirable and effective. I say unsurprisingly because the whole issue of compulsory ADR and Article 6 of the Human Rights Act arose after the submissions by the late Lord Lester of Herne Hill on behalf of the Law Society, one of the interveners in Halsey v Milton Keynes  1 WLR 3002, which were adopted by the Court of Appeal. The often-quoted passage from the judgment of Lord Justice Dyson has been the subject of adverse judicial as well as academic comment, and there is a general feeling that now is the time to redress the reliance on that passage and the Article 6 argument as an excuse for refusing to mediate and a reason for not implementing a compulsory regime of ADR as a precursor to commencing litigation. The CJC Report sets out a cogent argument for such a change but expresses an expectation that the Court of Appeal will need to revisit Halsey when an opportunity presents itself.
But back to the title of this article. The interesting and novel approach of the India/Singapore Mediation Summit mirrors a similar initiative by the PRC’s Ministry of Justice. China is planning to create a new economic commercial area incorporating Hong Kong under the title of the Greater Bay Area and is promoting dispute resolution as one of its key aspirations. These jurisdictions recognise that the real driver for ADR in most civil and commercial disputes is not so much the convenience of the Courts system, but the economic interests of the commercial entities concerned. As a first-year law student I, in common with most undergraduates, studied the English Legal System and in particular the origins of mercantile law. Many lawyers will recall the ‘Courts of Piepowder’, derived from the Norman French pieds poudre (dusty feet) so-called because they were special courts set up to deal expeditiously with disputes arising between merchants in the course of a fair or market. The Courts had a special procedure that required a determination within a day and a half of an allegation being made because merchants from outside the locality travelled from market to market throughout England and Scotland. The jurisdiction was unlimited over personal actions for events occurring in the Market including commercial disputes between merchants, theft, and acts of violence. Blackstone’s Commentaries on the Laws of England described them as “the lowest and at the same time the most expeditious, courts of justice known to the law of England”. Eventually, a separate system of mercantile law grew up which was effectively the first international commercial law. It is not a coincidence that UNCITRAL’s initiative in establishing WG II which eventually drew up the Singapore Convention was the result of complaints from the commercial community that there was a need for an international enforcement procedure for mediated settlements of commercial disputes, akin to the New York Convention for the enforcement of arbitral awards. Thus it is no surprise that the Chief Justices of Singapore and India recognise that the driver for a ‘golden age of mediation’ is not the need to relieve the pressure upon an overloaded court system but a recognition that sensible commercial entities view most litigation as an expensive dissipation of their time and assets, which can often result in a determination which does not always satisfy the needs of the parties.
Thus, to answer the question posed by this article: this may be the dawn of a golden age for mediation in some jurisdictions, notably those jurisdictions in which mediation has still to reach the level of use of dispute resolution in North America, Australasia, Europe and the UK, where the golden age might be said to have passed and that seeking an alternative resolution of the civil commercial has become an accepted and welcome course of action as a preferred choice rather than launching litigation. Human nature being what it is, lawyers will be happy to learn that even in those jurisdictions litigation still flourishes in spite of the acceptance and wide use of mediation: thus, cynically, a real-life win/win result!