Chair: Tara Ollapally
Members: Obi-Farinde Morenike, Bruce Edwards, Lara Traum, Ken Cloke
Papers on National Development:
Introduction and Objectives
To support the growth of mediation movements on a global level, our Committee sought to understand the growth of mediation in Argentina, India, Nigeria, and Russia with the objective of building a resource for new mediation movements to understand the requirements of building and sustaining a mediation movement. The main questions that we analyzed were:
Through an understanding of these questions for these four diverse jurisdictions, documented in this report are some considerations to bear in mind when introducing a mediation movement as well as supporting its growth to acceptance and adoption.
“We have been living through a cannibalization process. Online mediation is eating face-to-face mediation.”
GLOBAL MEDIATION DEVELOPMENT COMMITTEE
III. Adoption of Mediation – Ways to Address the Challenge
a. Mediation Law – Legislation in the form of a comprehensive mediation law or as amendments to existing laws is critical to gain acceptance and recognition as a valid dispute resolution process. Argentina succeeded in passing a law mandating mediation before the filing of a suit in a local court, which has greatly enhanced the understanding and usage of mediation. In contrast, Russia has faced the challenge of inadequate legislation that has impacted public acceptance of the process. India amended current legislation to include mediation, which serves short term needs, but does not instill the public confidence and credibility that comes with a comprehensive mediation legislation.
b. Programs to create awareness – Regular programs with the Bar, Courts, Industry Associations, Chambers of Commerce, Community Organizations on the mediation process are necessary to create awareness. In Nigeria, the state of Lagos introduced Lagos Settlement Week for both the Magistrates and High Courts which supported a significant improvement in the knowledge and awareness about mediation.
c. Building a culture of mediation – Taking mediation beyond legal disputes as a way to influence mindset and gain social legitimacy must be considered. Community mediation programs to foster good community relationships through dialogue (Nigeria), educational programs with schools and universities that emphasize the value of collaboration and dialogue (Argentina & India), facilitated dialogues for issues of public concern are some ways to build a culture of mediation.
d. Training judges – Judges are an integral resource for building a mediation movement. Training judges to understand mediation and identify appropriate cases to refer for mediation is an essential way to legitimize and increase usage of the process.
e. Growth of Private mediation – While several mediation movements begin with court annexed programs, building a private mediation movement is necessary to (1) professionalize the service, (2) attract high quality professionals, (3) allow more complex disputes to be mediated, and (4) support the growth of the movement as a whole.
IV. Other Factors to support the growth of mediation
a. Online Dispute Resolution and the use of technology – With COVID forcing the closure of courts, mediation has become more visible and appealing to many disputants. Mediation has also been able effectively move online – ODR platforms have supported the increased and easy access to dispute resolution resulting in a significant increase in the number of users of mediation. Increased awareness programs and training programs that have been held online has also significantly added to the tremendous growth of the mediation eco system.
b. Increased government backing – With the signing of the Singapore Convention, governments and courts are recognizing the need and value of mediation to support overwhelmed court systems. Increased jurisprudence validating the legality of a mediated settlement agreement, especially in India and Nigeria, has significantly boosted the movement. Policies mandating mediation courses in law school curricula (India) or requiring lawyers to inform their clients about ADR processes (Nigeria) or online mediation platforms set up by the government to promote easy and free access to mediation services (Argentina)2 are other factors that have supported the recent growth of mediation.
c. Overwhelmed court systems – Alternative processes like mediation have become necessary because of over overburdened court systems. With caseloads increasing every year, access to justice has become a significant issue. There is no other option but to design and promote alternative options. Mediation is increasingly being seen as not only an alternative process but also as an appropriate process for many disputes.
d. Entry of young legal professionals – Young, innovative legal professionals who see the need for a change in the status quo, has propelled the growth of the mediation movement in each of the countries we examined. In Russia, the entry of young, new professionals in dispute resolution as mediators is seen as a welcome change in a society that is distrustful of the “old guard” while in India mediation is being seen as the space for innovation in the law and justice space. Legal systems established in colonial times in many of these countries are finally experiencing change through the introduction and growth of mediation movements.
V. Mediation through the next 5 years
There is a strong sense of hope that mediation is a concept whose time has come and will see significant growth in the next five years. It is recognized that collaborative dispute resolution is not only needed as an alternative to overwhelmed court systems but as a more peaceful way to respond to and manage dispute. Mediation growth for the next 5 years include:
a. The Singapore Convention on Mediation will incentivize governments to introduce/amend laws to recognize mediation. This will also place mediation on par with traditional processes such as litigation and arbitration.
b. Local and contextual growth of mediation that is understood by the public as a home – grown process as opposed to a western influenced process will go a long way in garnering domestic support for mediation.
c. The culture of mediation will expand beyond legal disputes through efforts to encourage the mindset of collaboration.
d. Increased referral from the judiciary as judges realize the value of the process and understand ways to use mediation to ease case load.
e. A significant increase in the use of Online Dispute Resolution especially after positive user experience through COVID.
f. The increased demand for mediation will spur the need for strong mediator training programs. In order for mediation to grow, well trained, strong mediators who can mediate effectively online as well as face-to-face are an essential focus for the next 5 years.
g. More focused systems will need to be established at the national and international levels to monitor and maintain quality of the profession.
After the outbreak of the coronavirus, many mediators around the world had to learn how to offer online mediation to their clients - most of them using a video conferencing...By Giuseppe Leone