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The U.S. Uniform Mediation Act and the Draft UNCITRAL Model Law on International Commercial Conciliation

Prepared for the Practising Law Institute, March 18-19, 2002, New York

This article provides an overview of the Uniform Mediation Act (UMA) and of the Draft UNCITRAL Model Law on International Commercial Conciliation (Law). Both were adopted in 2001.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) in the USA approved and recommended for enactment the UMA in all States at its annual conference in August.1 The UMA promotes the use and uniformity of mediation in the United States. It grants a legal privilege for those involved in the mediation process. The Working Group on Arbitration and Conciliation (WG) of the United Nations Commission on International Trade Law (Commission) adopted the Model Law in November. 2 The Model Law promotes the use and uniformity of mediation to resolve international commercial disputes. It offers basic rules for the mediation process.

The authors incorporated to the possible extent the language used in the working documents that were utilized during the negotiation of both the UMA and the Law. 3

Uniform Mediation Act

The UMA resulted from an historic collaboration. The Uniform Law Commission Drafting Committee, chaired by Judge Michael Getty, was joined in the drafting of this Act by a Drafting Committee sponsored by the American Bar Association, working through its Section of Dispute Resolution, which was co-chaired by former American Bar Association President Roberta Cooper and Chief Justice Thomas Moyer of the Supreme Court of Ohio. Observers from a vast array of mediation professional and provider organizations also provided extensive suggestions to the Drafting Committees. 4

The NCCUSL recognized that the use of mediation has become an integral and growing part of the processes of dispute resolution in the courts, public agencies, community dispute resolution programs, and the commercial and business communities, as well as among private parties engaged in conflict.

The Prefatory Note to the UMA recognizes both the strong public policy favoring the use of mediation and the value mediation offers to those interested in early resolution of their disputes. It highlights that a mediator assists the parties in negotiating a settlement that is specially tailored to their needs and interest. The parties’ participation in the process and control over the result contributes to greater satisfaction on their part. Recognizing the value and popularity of mediation, states have created statewide offices to encourage greater use of mediation. The UMA seeks to promote consistency with policies of the states.

Primary interests of the UMA include providing a privilege, something the parties cannot accomplish by contract, respecting confidentiality for mediation communications and encouraging the use of fair process conducted with integrity.

The UMA is designed to simplify rather than complicate the law.5

The challenge of uniformity

Uniformity of the law encourages effective use of mediation in a number of ways.

First, uniformity is a necessary predicate to predictability if there is any potential that a statement made in mediation in one state may be sought in litigation or administrative processes in another state.

A second benefit of uniformity relates to cross-jurisdictional mediation. In addition to the traditional face-to face mediation sessions where parties are from different states, sessions are increasingly conducted by conference calls between mediators and parties in different states and even over the Internet.

Third, absent uniformity, a party trying to decide whether to sign an agreement to mediate may not know where the mediation will occur and therefore whether the law will provide a privilege or the right to bring counsel or support person.

Finally, uniformity contributes to simplicity. Mediators and parties who do not have familiarity with the law or legal research face a more formidable task in understanding multiple confidentiality statutes that vary by and within relevant states than they would in understanding a Uniform Act.

Mediation often involves both parties and mediators from a variety of professions and backgrounds, many of who are not attorneys or represented by counsel. With this in mind, the drafters sought to make the provisions accessible and understandable to readers from a variety of backgrounds, sometimes keeping the UMA shorter by leaving some discretion in the courts to apply the provisions in accordance with the general purposes of the UMA. These policies include fostering prompt, economical, and amicable resolution, integrity in the process, self-determination by parties, candor in negotiations, societal needs for information, and uniformity of law.

The drafters sought to avoid including in the UMA those types of provisions that should vary by type of program or legal context and that were therefore more appropriately left to program-specific statutes or rules. Mediator qualifications, for example, fit this category. The drafters also recognized that some general standards were often better applied through those who administer ethical standards or local rules, where an advisory opinion might be sought to guide persons faced with uncertainty.

To avoid unnecessary disruption, on the critical issue of confidentiality, the UMA adopts the structure used by the overwhelming majority of the states: the evidentiary privilege. Many state and local laws do not conflict with the UMA and would not be preempted by it. For example, statutes and court rules providing standards for mediators, setting limits of compulsory participation in mediation, and providing mediator qualifications would remain in force.

Text of the UMA 6

Section 1 enunciates the name of the Act: [This [Act] may be cited as the Uniform Mediation Act.]

Section 2 defines key words such “Court”, “Mediation”, “Mediation communication”, “Mediator”, “Nonparty participant”, “Party”, “Person”, “Proceeding”, “Record” and “Sign”. Two fundamental words to the UMA are defined below:

“Mediation means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.”

“Mediation communication means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.”

Section 3 concerns the scope of the UMA. It indicates mediations covered by the UMA and types of mediations not covered. This section is broader in scope and a departure from typical state statutes that apply to mediation in a particular context.

Sections 4-8 form the core rules for protecting confidentiality of mediation communications against disclosure in legal proceedings. The privilege provided in the UMA is consistent with the approach taken by the overwhelming majority of legislatures.

Privilege has been used to provide the basis for protection for other forms of professional communications including attorney-client, doctor-patient and priest-penitent. A mediation privilege operates to allow a person to refuse to disclose and to prevent another from disclosing particular communications.

Section 4 contains provisions related to privilege against disclosure, admissibility and discovery. Except as otherwise provided, a mediation communication is privileged and not subject to discovery or admissible in evidence in a proceeding.

Waiver and preclusion of privilege are the content of Section 5. It sets out situations in which a privilege may be waived, or situations where a party, mediator or nonparty participant is precluded from asserting a privilege. Waiver in all situations must be express and recorded through writing.

Section 6 enumerates exceptions to privilege in situations in which there is no privilege under Section 4. Oral agreements are not included in this section.

Section 7 is named Prohibited Mediators Reports. It prohibits communications by the mediator in prescribed circumstances. In contrast to the privilege, which gives a right to refuse to provide evidence, this subsection creates a prohibition against disclosure.

It applies in the limited context of the communication to a judge, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. However a mediator may disclose whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; a mediation communication as permitted under Section 6; or a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment. A court, administrative agency, or arbitrator may not consider a communication made in violation of the general prohibition. Section 8 refers to confidentiality. The text says: “Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.”

The UMA was drafted to create a minimum uniformity of protection for confidentiality. It is not meant to replace more detailed state provisions enhancing it, and seeks to guarantee a level of protection in those states that hardly protect confidentiality. Maintaining the parties ‘and mediators’ expectations regarding confidentiality of mediation communications encourages candor during mediation.

The communications by the mediator to the court or other authority are circumscribed narrowly. They would not permit a mediator to communicate, for example, on whether a particular party engaged in “good faith” negotiation, or to state whether a party had been “the problem” in reaching a settlement.

Section 9 treats mediator’s disclosure of conflicts of interest and background. It mandates that before accepting a mediation, a potential mediator shall inquire if there are circumstances that would prevent her or his impartiality and disclose it to the mediation parties before accepting a mediation. At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute. A mediator must act in an impartial manner.

While regulations for mediator disclosure are common in professional practice and ethics rules, this is a somewhat novel statutory provision that imposes on mediators the conflict of interest disclosure requirements that are more typically required of arbitrators.

The UMA will apply to private mediators as well as those in publicly supported programs. It applies to volunteer as well as compensated mediators. The facts to be disclosed in any case will depend upon the circumstances. The goal of such a requirement is to protect the parties against a mediator who is not impartial.

The disclosure, upon request, of qualifications is a relatively novel requirement. In some situations, the parties may make clear that they care about the mediator’s qualifications to conduct a particular approach to mediation and would want to know whether the mediator in the past has used a purely facilitative or evaluative approach.

The UMA does not establish mediator qualifications. No consensus has emerged in the law, research, or commentary as to those mediator qualifications that will best produce effectiveness or fairness. Mediators need not be lawyers. In fact, the American Bar Association Section on Dispute Resolution has issued a statement that “dispute resolution programs should permit all individuals who have appropriate training and qualifications to serve as neutrals, regardless of whether they are lawyers.” 7

At the same time, the law and commentary recognize that the quality of the mediator is important and that the courts and public agencies referring cases to mediation have a heightened responsibility to assure it.

Section 10 establishes that an attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of participation given before the mediation may be rescinded.

Section 11 refers to the relation of the UMA with the Federal Electronic Signature in Global and National Commerce Act.

Section 12 indicates that if any provision of the UMA or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the UMA which can be given effect without the invalid provision or application, and to this end the provisions of the Act are severable.

Sections 13, 14 and 15 concern the effective date of the UMA, repeals and application to existing agreements or referrals.

Draft Model Law on International Commercial Conciliation (Law)

In 1999, the United Nations Commission on International Trade Law (Commission) considered that the time had come to assess the use of the UNCITRAL Conciliation Rules. It requested the Working Group on Arbitration and Conciliation (WG) to proceed with the examination of those provisions on a priority basis, with a view to submit a document for review and adoption by the Commission in 2002. 8 The deliberations of the WG indicated that conciliation and/or mediation is increasingly being used for settling commercial disputes, that the use of such non-contentious methods of dealing with disputes deserve to be promoted and that the work of the UNCITRAL Commission in the area should be geared to such promotion. It was noted that conciliation is currently being used either independently from court or arbitral proceedings or as part of, or in close relationship to, such proceedings, and that solutions considered for adoption should take that fact into account.

The WG agreed that the term “conciliation” should be understood as a broad notion encompassing various types of proceedings in which a person or a panel of persons was invited by the parties in dispute to assist them in an independent and impartial manner to reach an amicable settlement of the dispute. Generally, it was also agreed that such proceedings may differ with respect to the procedural techniques used to facilitate settlement and that different expressions might be used to refer to such proceedings, such as, for example, “mediation” or other expressions used for non-binding methods of dispute settlement.

Initially, the WG decided that the form of the text to be prepared should be made at a later stage when the substance was clearer. Later, it was noted that model legislative provisions (model law) seemed to be the appropriate form in the area of conciliation.

There was general agreement in the WG that the applicability of any uniform rules prepared should be restricted to commercial matters.

Text of the Draft Model Law

Article 1 refers to the scope of application and definitions. Previous draft articles 1, 2 and 3 were merged into this first article of the Law.

The first paragraph indicates that the Law applies to international commercial conciliation.

In the second, a definition of “conciliation” is provided. For purposes of the Law, conciliation “means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person, or a panel of persons, to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contract or other legal relationship. The conciliator or the panel of conciliators does not have the authority to impose upon the parties a solution of the dispute.”

The third paragraph defines “international conciliation.” A conciliation is international if:

“(a) The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or (b) The State in which the parties have their places of business is different from either: (i) The State in which a substantial part of the obligations of the commercial relationship is to be performed; or (ii)The State in which the subject-matter of the dispute is most closely connected.”

Paragraph four addresses “place of business”.

“(a) If a party has more than one place of business, the place of business is that which has the closest relationship to the agreement to conciliate; (b) If a party does not have a place of business, reference is to be made to the party’s habitual residence.”

Paragraph five establishes that Law “also applies to a commercial conciliation when the parties agree that the conciliation is international or agree to the applicability of this Law” and paragraph six grants the right to the parties to freely agree to exclude the applicability of this Law.

The seventh paragraph indicates that subject to the provisions of article (8), the Law “applies irrespective of the basis upon which the conciliation is carried out on, including agreement between the parties whether reached before or after a dispute has arisen, an obligation established by law, or direction or suggestion of a court, arbitral tribunal or competent governmental entity.”

Paragraph eight envisions situations where the Law does not apply. It does not in “Cases where a judge or an arbitrator, in the course of a court or arbitral proceeding, attempts to facilitate a settlement; and…”

Article 2 defines interpretation. The drafters borrowed the definition from previously adopted international Model Laws.

“1. In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

2. Questions concerning matters governed by this Law, which are not expressly settled in it, are to be settled in conformity with the general principles on which this Law is based.”

The interpretation of the Law should also consider the ordinary meaning to be given to the terms of the Law in their context and in the light of its object and purpose. For this reason, the Law should be interpreted to facilitate communication between the parties; it cannot inhibit the solution of conflicts discouraging communication.

According to Article 3, the parties may agree to exclude or vary any of the provisions of the Law, except for the provisions of article 2 (interpretation) and article 7 (conduct of the conciliation), paragraph (3). This article was drafted to show the prominent role given to the principle of party autonomy by the Law.

Article 4 states the rule that determines commencement of conciliation proceedings:

“1. Unless otherwise agreed by the parties, the conciliation proceedings in respect of a particular dispute commences on the day on which the parties to the dispute agree to engage in conciliation proceedings. 2. If a party that invited another party to conciliate does not receive a reply within [check please fourteen] days from the day on which the invitation was sent, or within such other period of time as specified in the invitation, the party may elect to treat this as a rejection of the invitation to conciliate.”

The reference to the “day on which the parties to the dispute agree to engage in conciliation proceedings”, intends to cover the different methods by which parties may agree to engage in conciliation proceedings. Methods as the acceptance by one party of an invitation to conciliate made by the other party, or the acceptance by both parties upon the direction or suggestion to conciliate made by a court.

Article 5 labels the number of conciliators. “There shall be one conciliator, unless the parties agree that there shall be a panel of conciliators.”

This rule is offered merely as a possible option. Essentially, this decision is reserved for the parties. The number of conciliators selected often responds to the trust of the parties. In contrast to judges and arbitrators, conciliators do not make decisions binding on the parties. So, the number of conciliators may be even.

Article 6 provides rules for the appointment of conciliators.

“(1) In conciliation proceedings with one conciliator, the parties shall endeavour to reach agreement on the name of the sole conciliator. (2) In conciliation proceedings with two conciliators, each party appoints one conciliator. (3) In conciliation proceedings consisting of three or more conciliators, each party appoints one conciliator and shall endeavour to reach agreement on the name of the other conciliators. (4) Parties may seek the assistance of an appropriate institution or person in connection with the appointment of conciliators. In particular: (a) A party may request such an institution or person to recommend names of suitable persons to act as conciliator; or (b) The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person. (5) In recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, with respect to a sole or third conciliator, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties. (6) When a person is approached in connection with his or her possible appointment as a conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstance to the parties unless they have already been informed of them by him or her.”

Although a view was expressed recognizing the rule that the appointment of each conciliator should be agreed to by both parties, the prevailing WG view was that the solution in the present draft was more practical since it allowed for speedy commencement of the conciliation process and might actually foster settlement in the sense that the two party-appointed conciliators, while acting independently and impartially, may be in a better position to clarify the positions of the parties and thereby enhance the likelihood of settlement.

Article 7 sets forth the conduct of conciliation.

“(1) The parties are free to agree, by reference to a set of rules or otherwise, upon the manner in which the conciliation is to be conducted. (2) Failing agreement on the manner in which the conciliation is o be conducted, the conciliator, the panel of conciliators or a member of the panel of conciliators may conduct the conciliation proceedings in such a manner as the conciliator, the panel of conciliators or a member of the panel of conciliators considers appropriate, taking into account the circumstances of the case, any wishes that the parties may express and the need for a speedy settlement of the dispute. (3) In any case, in conducting the proceedings, the conciliator, the panel of conciliators or a member of the panel of conciliators shall seek to maintain fair treatment of the parties and, in so doing, shall take into account the circumstances of the case. (4) The conciliator, the panel of conciliators or a member of the panel of conciliators may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute.”

The WG agreed that the term “wishes” was unusual for inclusion in legal provisions but noted that if a more appropriate term could not be found then it could be retained in light of the fact that it was used in the UNCITRAL Conciliation Rules.

Some concern was expressed in the WG regarding the inclusion of principles in the model legislative provisions. Paragraph (3) could have the unintended effect of inviting parties to seek annulment of the settlement agreement through court review of the conciliation process. However, the prevailing view was to retain the guiding principles in the body of the legislative provisions to provide guidance regarding conciliation, including for less experienced conciliators.

The content of Article 8 is communication between conciliator and parties.

“Unless otherwise agreed by the parties, the conciliator or the panel of conciliators may meet or communicate with the parties together or with each of them separately.”

This rule, unthinkable in the traditional legal-adversarial sense, where such communication is forbidden, captures one of the essences of mediation. This is the promotion and facilitation of direct communication of the parties to solve the dispute.

Article 9 adopts a rule for disclosure of information with one exception.

The rules stipulates: “When the conciliator, the panel of conciliators or a member of the panel of conciliators receive information concerning the dispute from a party, the conciliator, the panel of conciliators or the member of the panel may disclose the substance of that information to the other party.”

The exception states: “However, when a party gives any information to the conciliator, the panel of conciliators or a member of the panel subject to a specific condition that it be kept confidential, that information shall not be disclosed to the other party.”

This provision seeks to ensure circulation of information between the various participants in the conciliation process. Information should be read expansively and cover communications that took place before the actual commencement of the conciliation.

Article 10 addresses the duty of confidentiality.

“Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.”

Article 11 concerns the admissibility of evidence in other proceedings.

“(1) Unless otherwise agreed by the parties, a party that participated in the conciliation proceedings or a third person, including a conciliator, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding, any of the following: (a) An invitation by a party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings; (b) Views expressed or suggestions made by a party to the conciliation in respect of a possible settlement of the dispute; (c) Statements or admissions made by a party in the course of the conciliation proceedings; (d) Proposals made by the conciliator; (e) The fact that a party to the conciliation had indicated its willingness to accept a proposal for settlement made by the conciliator; (f) A document prepared solely for purposes of the conciliation proceedings. (2) Paragraph (1) of this article applies irrespective of the form of the information or evidence referred to therein. (3) The disclosure of the information referred to in paragraph (1) of this article shall not be ordered by the arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph (1) of this article, that evidence shall be treated as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement.” (4) The provisions of paragraphs (1), (2), and (3) of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the conciliation proceedings. (5) Subject to the limitations of paragraph (1) of this article, evidence that is admissible in arbitral or court proceedings does not become inadmissible as a consequence of being used in a conciliation.”

The WG expressed general support for the underlying policy: to encourage frank and candid discussions in conciliation by prohibiting the use of information for other purposes. Broad support was expressed for retaining the words “or a third person” as necessary to ensure that persons other than the party (for example, witnesses or experts) who participated in the conciliation proceedings are also bound.

Where the information had been generated before and in anticipation of conciliation proceedings, such information should also be covered. If there is any doubt that the provision covers oral as well as written evidence, it shall be interpreted to cover any information or evidence, regardless of its form.

Article 12 establishes when the termination of conciliation occurs. “(a) By the conclusion of the settlement agreement by the parties, on the date of the agreement; (b) By a written declaration of the conciliator or the panel of conciliators, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; (c) By a written declaration of the parties addressed to the conciliator or the panel of conciliators to the effect that the conciliation proceedings are terminated, on the date of the declaration; or (d) By a written declaration of a party to the other party and the conciliator or the panel of conciliators, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.”

The WG agreed to use the word conclusion instead of signature to accommodate the use of electronic commerce. Subparagraph (b) might address the situation where a panel of conciliators conducts the conciliation proceedings but the proceedings are declared terminated by only one or more of its members of the panel. In that respect, it may be recalled that article 3 of the UNCITRAL Conciliation Rules stipulates, “Where there is more than one conciliator, they ought, as a general rule, to act jointly”. That provision is thus clearly worded in terms of a recommendation and not an obligation.

Another reason the model legislative provisions does not seek to impose that conciliators should act jointly is the variety in the procedural situations in which the conciliators might intervene to terminate the proceedings. Depending on the procedural style adopted by the parties and the panel, the decision might be made by consensus of all members of the panel but also by the presiding conciliator or through delegation by the panel to one of its members.

Article 13 provides the possibility of a conciliator acting as arbitrator.

“Unless otherwise agreed by the parties, the conciliator shall not act as an arbitrator in respect of a dispute that was or is the subject of the conciliation proceedings or in respect of another dispute that has arisen from the same contract or any related contract.”

Article 14 approaches the resort to arbitral or judicial proceedings.

“(1) Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with.

(2) A party may nevertheless initiate arbitral or judicial proceedings where, in its sole discretion, it considers such proceedings necessary to preserve its rights. Initiation of such proceedings is not of itself to be regarded as termination of the conciliation proceedings.”

This article leaves each party some discretion to determine whether initiating arbitral or judicial proceedings is “necessary for preserving its rights”. For example, any application for interim measures of protection could easily be described as “necessary for preserving the rights” of the applicant. The WG considered that agreements to conciliate should be binding on the parties, in particular where the parties had expressly agreed not to initiate adversary proceedings until they had tried to settle their disputes by conciliation.

Article 15 introduces a formula for the enforceability of settlement agreements.

“If the parties reach and sign an agreement settling a dispute, that settlement agreement is binding and enforceable [the enacting State inserts a description of the method of enforcing settlements agreements or refers to provisions governing such enforcement].”

This particular article is the only one still being negotiated. Legislative solutions regarding the enforceability of settlements reached in conciliation proceedings differed widely within the WG.

Some States had no special provisions on the enforceability of such settlements, with the result that they would be enforceable as any contract between the parties. This understanding that conciliation settlements are enforceable, as contracts, has also been restated in some laws on conciliation.

The WG also noted that several laws contained provisions where a written settlement agreement was treated the same as an award rendered by an arbitral tribunal and could produce the same effect as a final award in arbitration, provided that the result of the conciliation process was reduced to writing and signed by the conciliator or conciliators and the parties or their representatives.

The WG further recognized that other laws treated conciliation settlements the same as arbitral awards, but that such settlements “might, by leave of the court” be enforced in the same manner as a judgment. In this situation, it appears that depending on the express wording in the settlement agreement, a large degree of discretion is left to the court in enforcing the settlement.

Another view was expressed that the draft model legislative provisions might give recognition to a situation where the parties appointed an arbitral tribunal with the specific purpose of issuing an award based on the terms settled upon by the parties. Such an award, envisaged in article 30 of the UNCITRAL Model Law on International Commercial Arbitration, would be capable of enforcement as any arbitral award. Other settlements, according to that view, were to be regarded as contracts and to be enforced as such. Under that view, the model legislative provisions should merely state the principle that the settlement agreement was to be enforced, without attempting to provide a unified solution as to how such settlement agreements might become “enforceable”, a matter that should be left to the law of each enacting State. According to other views, however, it would be useful, in order to increase the attractiveness of conciliation, to endow settlements reached during conciliation with the possibility of enforcement.

End Notes

1 See Prefatory Note in

2 The report of that session is contained in document A/CN.9/506. The WG noted that the Draft Model Law, together with the draft guide to enactment and use, would be circulated to member States and observers for comment, and presented to the UNCITRAL Commission for review and adoption at its thirty-fifth session. The electronic version of the above documents is accessible on website:

3 With the method of incorporating language used in the legis history of both documents, we minimize distortion in the presentation and offer a text without hundreds of quotes and corresponding footnotes. For those interested in the original documents, see the Web citations quoted in footnotes 1 and 2.

4 See Michael B. Getty, Thomas J. Moyer & Roberta Cooper, Preface to Symposium on Drafting a Uniform/Model Mediation Act, 13 Ohio St. J. on Disp .Resol. 787 (1998).

5 Currently, legal rules affecting mediation can be found in more than 2,500 statutes. On average, for example, a State has five mediation confidentiality statutes, each applying in a different context. Many of these statutes can be replaced by the Act, which applies a generic approach to topics covered in varying ways by a number of specific statutes currently scattered within substantive provisions.

6 The Final Style Draft at

7 ABA Section of Dispute Resolution Council Res., April 28, 1999. 8 At its thirty-fifth session (Vienna, 19-30 November 2001), the WG approved the final version of the draft provisions in the form of a Draft Model Law on international commercial conciliation. The report of that session is contained in document A/CN.9/506. The Working Group noted that the Draft Model Law, together with the draft guide to enactment and use, would be circulated to member States and observers for comment, and presented to the Commission for review and adoption at its thirty-fifth session. The electronic version of the above documents is accessible on website: The Chairman of the Working Group is Professor J.M. Abascal. The State members are Austria, Benin, Brazil, Burkina Faso, Cameroon, Canada, China, Colombia, Fiji, France, Germany, Honduras, Hungary, India, Iran (Islamic Republic of), Italy, Japan, Kenya, Lithuania, Mexico, Morocco, Paraguay, Romania, Russian Federation, Rwanda, Sierra Leone, Singapore, Spain, Sudan, Sweden, Thailand, the Former Yugoslav Republic of Macedonia, Uganda, United States of America, United Kingdom of Great Britain and Northern Ireland, and Uruguay.


Luis Miguel Diaz

Luis Miguel Díaz, unfortunately now deceased, fathered four children and distrusted language, theories and authority, including his own as a father. Admires artists and scientists and their lives. He received his Law Degree at UNAM, Mexico (1974); and LLM (1976) and SJD (1986) at Harvard University Law School. President of the Interdisciplinary Center for Conflict… MORE >


Nancy Oretskin

Nancy Oretskin is the Co-Director of the U.S.-Mexico Conflict Resolution Center (CRC) and an Associate Professor in the College of Business Administration and Economics at New Mexico State University where she teaches graduate and undergraduate classes in Business Law, Contemporary Legal Issues and Business Negotiation and Conflict Resolution. Ms. Oretskin… MORE >

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