Back to the Future? – Not Likely

Mediation is evolving.  It should — as many have stated in these columns — remain connected to its roots in the joint session and party self-determination.  But it will also have to branch, blossom and leaf if it is to thrive.  Part of a new blossoming will  come from the intelligent use of information developed by decision science and brain science.  Some of our practices will be validated by this work and some – possibly “venting” – will be undercut.

To create a truly viable mediation industry, the users and the lawyers who represent them, both inside counsel and law firm counsel, have to be better educated as to the process alternatives available so they can in fact exercise self-determination.  They should also be able to assess the skills of the mediators, and not exclusively by relying on gatekeeper lawyers. 

IMI has established a data basis of user comments for mediators.  That should be expanded throughout the profession.  Mediator education and evaluation and yes, possible credentialing, will have to be explored. 

But the future of mediation, at least in the commercial world, may be most dramatically influenced by unexpected events.  For example, in February of 2015, the United Nations Commission on International Trade Law (UNCITRAL) met in a hearing room at the UN to decide whether the United States proposal for a convention on the enforcement of settlements reached in conciliating or mediating cross-border commercial disputes should be further explored.  The proposal asks Working Group II (Conciliation and Mediation) to consider a convention analogous to the New York Convention on arbitral awards. That convention was first adopted in June 1958 and has now been signed by over 145 countries.  http://www.newyorkconvention.org/contracting-states.

In the world of arbitration, the New York Convention has had a revolutionary impact because arbitration awards became easier to enforce than foreign judgments..  The result has been the creation of an engine of international economic development involving facilities, arbitral institutions, arbitrators and arbitration practitioners.  Countries and cities vie to create the most favorable seats and rules for this business of dispute resolution.  On the other hand, mediation results only in a contract, subject to many defenses even less easy to enforce than a foreign judgment.  For this reason, mediation and conciliation are dramatically underutilized in international disputes. 

A new convention on the enforcement of conciliated or mediated settlements could radically alter that situation and have an enormous world-wide impact on the attractiveness and on the practice of mediation.  New developments and understandings would be developed as a much larger number of parties and mediators participate in the practice. 

The future is unlikely to look like the past – maybe it can be better.

                       

Laura Kaster

Laura A. Kaster is the 2014 Boskey Award winner for NJ-ADR Practitioner of the Year. She is a mediator and arbitrator in Princeton NJ. She has over 30 years' experience with complex and IP disputes.  Before working full-time as a neutral, she was chief litigation counsel for AT&T and a partner… MORE >