Mediation with Multiple Parties
Mediation is most often thought of as a negotiation between two parties and the mediator. Sometimes a party can include several people or company representatives and/or insurance representatives. It is also vital to ensure that the person with authority to “make a deal” is present. But not every litigation involves a dispute between two sides.
Considerations When There Are Multiple Parties
Your strategy on how to resolve your client’s dispute becomes that much more complicated when you are representing one of multiple parties to a mediation. There could be multiple plaintiffs and/or defendants. Whomever you represent may need to negotiate not only with the parties on the opposite side, but with parties similarly situated. This can be done, especially with a good mediator who understands the competing interests at stake. Mediation allows multiple parties to have a dialogue in a way that isn’t necessarily possible in more formal proceedings, like a trial.
Because multiple parties on the same side of the case may each have different definitions of success for resolution, a skilled mediator can talk to each party individually to explore what their particular wants, needs, and wishes are for a settlement. Armed with this information, the mediator can help all parties formulate a mutually agreeable position which can then be presented to the other side. Because getting everyone on the same page may be more complicated if some of the parties are from different cultural backgrounds, multi-party mediations become even more challenging when one or more of the parties is from another country and culture.
It is wise to choose a mediator who is used to dealing with various cultures and has international experience. Negotiation may look very different where these parties are from. Many countries do not have dispute resolution tools like mediation, and therefore, even lawyers from other countries who might be at the mediation will not be familiar with how mediations work. They also may have different views on a typical outcome to a dispute. Still, if everyone at the mediation is there in good faith to try to resolve what is undoubtedly a multi-layered dispute, mediation can be successful. Be vocal with the mediator prior to the mediation about any concerns and choose a mediator with international experience when there is an international component – or even just parties from different cultural backgrounds. They have techniques to help bridge these gaps and keep interested parties moving towards a solution to their differences.
International Mediation is Worth Considering, Even for Parties Not Yet Bound by the Singapore Convention
Many have argued that mediation isn’t the right choice for resolving cross-border disputes because one cannot compel enforcement, in the same way it is possible for arbitral awards using the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The New York Convention is in force for 168 countries and therefore is relied on regularly by parties seeking to enforce arbitral awards across the globe. Without a similar convention signed by most countries, people argue, mediation has limited value in a cross -border context.
That’s why many international mediators were very excited with the adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Convention on Mediation" or "Singapore Convention") on December 20, 2018. Many believed it would do the same thing for mediation, as the New York Convention did for arbitration, making mediation a genuine alternative to protracted litigation.
The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are in the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval, or accession. The United States still needs Senate approval. Right now, just eleven countries have acceded to the Singapore Convention: Belarus, Ecuador, Fiji, Georgia, Honduras, Kazakhstan, Qatar, Saudi Arabia, Singapore, Turkey, and Uruguay.
But that does not necessarily mean that mediation is a non-starter for disputants trying to decide how best to resolve a cross-border dispute. Besides ease of enforcement there are other reasons for considering mediation:
1. The Singapore Convention will be adopted broadly eventually - It is anticipated that many countries will soon adopt the Singapore Convention.
2. Cross-border mediation, by its nature, results in outcomes parties are more likely to honor without court intervention-Cross-border mediation is worth considering even without such a convention. Mediation empowers the parties to a dispute to find a solution that works for them. No one can be forced into a mediated settlement. Because the parties must agree to a mediated settlement, rather than it being a decision reached by a third party, such as a judge or arbitrator in a court ruling or arbitral award, the respective parties are generally more willing to honor their commitment without a party having to turn to a court or other tribunal to compel such behavior.
3. Mediation allows for outcomes that many courts couldn’t compel or even enforce – Because the parties decide how to settle a dispute in mediation, there is greater flexibility about outcomes. Non-monetary remedies are possible. One party can agree to do or not do something. In many countries, courts are not allowed to compel a party to do or not do something. But the parties can make such an agreement and it may be just what the parties agree is the best way to resolve their dispute, without court intervention.
4. Mediation often allows the parties to maintain an on-going relationship – Because mediation is so much less adversarial, the parties may end up continuing to work together. That, again, leaves options open for settlement that wouldn’t exist without the parties continuing to work together. Such outcomes also create greater incentives for the parties to honor their commitments to one another in a mediated settlement, without the hassle and expense of involving a court to compel compliance.
Of course, as a mediator, I am eager to see the Singapore Convention adopted widely. It will undoubtedly be a useful tool in enforcing mediated settlements and encouraging the use of mediation globally. Still, as noted above, there are many reasons to consider using mediation in cross-border disputes today.
Just a Little Bit of Respect - How Acknowledging Cultural Differences Can Be Key to Successful Mediations
Good mediators know just how important it is for parties to respect one another to be able to resolve disputes. When there has been a dispute, respect often no longer exists between the parties. It is important for counsel and the mediator to make sure that at least for purposes of the mediation the parties are respectful of each other 's positions and respectful about the business or person with whom the parties are negotiating.
Counsel for the parties may also have differences with opposing counsel or the adverse party. All of these differences need to be set aside before mediation. Counsel need to help their clients understand this.
It is also important to understand how culture impacts one’s perception of respect and what is expected. One must ask oneself, what considerations must be taken into account? It is important to understand the value systems of all involved.
Although respect is important in a domestic setting it is even more important when one of the parties is from another country. For those counsel who have represented foreign parties, you know how vital it is that customs are followed. Even in a domestic setting it is important to show respect, for example, to someone who might be older or to someone who has a key role in a company. In an international settings small and large moments can really matter. This encompasses everything from where people are seated at a mediation, how people greet one another, whether in person or by zoom, how business cards are presented and how people are addressed.
In her series of books Kiss, Bow or Shake Hands, author Terri Morrison provides advice on cultural differences to businesses who are conducting global operations. The State Department issues guidance on dealing with different cultures for its employees who are stationed around the world. We have also offered guidance in an earlier blog post: Context Matters; Avoiding Missteps in Cross-Border Mediation. There are many resources to aid counsel in how to recognize what constitutes respect and to be able to advise his or her client appropriately. Recognizing cultural differences and the importance of respect is key to a successful mediation.
ADR is Changing with the Times – We Must Too!
For most of us, our world and practices changed drastically and quickly during the pandemic. We learned how to go on something called Zoom to meet with friends, family, and clients. No longer were we conducting mediations in closed conference rooms. Many practitioners were forced--kicking and screaming--to learn about technology. We adapted. We learned. Many court appearances, especially for motions, are now virtual. Many practices have been changed forever. Clients and lawyers found it more convenient, saving time and money.
Although not in as widespread use as it is today, in 2009, The National Center for Technology & Dispute Resolution (NCTDR) issued the first Online Dispute Resolution (ODR) Standards. In response to developments in online dispute resolution technology and attitudes towards it, the NCTDR in collaboration with The International Council for Online Dispute Resolution (ICODR) developed updated ODR Standards in 2017. More recently the leadership of both organizations approved an updated version in April 2022. The following are a few of the relevant highlights.
ODR Standards require that ODR platforms and processes must be:
1) Accessible. ODR must be easy for parties to find and participate in, and not limit their right to representation. ODR must be accessible to all parties, minimize costs to participants, and be easily accessed by people with different types of abilities.
2) Accountable. Human oversight of (1) the originality of documents and the path to outcome when artificial intelligence is employed, (2) the relative control given to human and artificial decision-making strategies.
3) Competent. ODR providers must have the relevant expertise in dispute resolution, legal matters, technical execution, language, and culture required to deliver competent and effective services and those services must be timely and use participant time efficiently.
4) Confidential. ODR providers must make every genuine and reasonable effort to maintain the confidentiality of party communications in line with policies that must be articulated to the parties.
5) Equal. ODR providers must treat all participants with respect and dignity. ODR must seek to enable often silenced or marginalized voices to be heard and strive to ensure offline privileges and disadvantages are not replicated in the ODR process. ODR must strive to ensure on an ongoing basis that no technology incorporated into ODR advantages any one party.
6) Fair and Impartial. Throughout the entire proceeding, ODR must treat all parties equitably and with due process, without bias or benefits for or against individuals or groups or entities. Conflicts of interest must be disclosed in advance of ODR services.
7) Legal. ODR providers must abide by, uphold, and disclose to the parties, relevant laws and regulations under which the process falls.
8) Secure. ODR providers must make every genuine and reasonable effort to ensure that ODR platforms are secure. Data collected and communications between those engaged may not be shared with any unauthorized parties.
9) Transparent. ODR providers must explicitly disclose in advance and in a meaningful and accessible manner:
a. The form and enforceability of ODR processes and outcomes
b. The risks, benefits, and costs of participation for each party
c. The sources & methods used to gather any data that influences any decision by artificial intelligence
d. Timely notice of any data breach and steps to prevent reoccurrence
As the COVID pandemic ebbs, it is increasingly apparent that ODR is here to stay – perhaps not for all mediations but for many. These updated standards illustrate the evolving nature of ODR and the importance of mediators remaining ready to evolve with it.
Dealing with “Difficult” Parties
Have you ever been in a mediation when one of the parties rushed into the session and started complaining about everything that had gone wrong that day – and then seemed to be carrying that frustration into the mediation session? What about a party that starts out with saying that he really doesn’t believe in mediation or that settlement is possible and, although he is “of course” willing to participate, he really doubts it will be of any use? Perhaps you’ve experienced a situation when one of the parties in a mediation doesn’t seem to speak at all and, even when asked a direct question, remains silent and turns to her attorney to speak on her behalf? Or you’ve experienced a party’s attorney who offends other parties by re-explaining everything anyone says to his client and what his client says to everyone, as if they cannot understand for themselves.
Lisa Savitt and I recently had the pleasure of presenting on the topic of dealing with “difficult” parties like those above at the International Association of Lawyers (UIA) 31st World Forum of Mediation Centres in Frankfurt, Germany. It was a lively discussion among the attendees, with so many willingly offering insights from their own experience. Lisa and I and our co-panelist, Javier Fernández-Samaniego of Madrid, Spain and Miami, Florida, also offered some suggestions about how to approach such situations. We reminded attendees that the key goal must be kept in mind: helping the parties explore all potential solutions to their problem – not to change the way one party or another behaves.
We pointed out that “difficult” behaviors can arise from several sources:
Emotions – Someone is afraid, anxious, frustrated, etc.
Dynamics between Parties – The history between the parties makes it difficult for them to come to the table with an open attitude.
Strategy – A party thinks some disruptive behavior can show strength or shake up a party or situation.
Legal Traditions – Behaviors can be linked to the parties’ roles and behaviors they think are expected of them based on their backgrounds.
Cultural Differences – “Rude”, “difficult”, and “disruptive” behavior in one culture can be seen as relatively normal in another. Maybe the actor is just acting in a way that would be entirely appropriate in another culture.
We also shared some of our tactics for addressing such situations to make sure that unwanted behaviors don’t destroy a mediation:
Prepare ahead of time to anticipate differences in legal traditions and cultural differences. It may mean that pre-mediation sessions will take some extra work to develop a strategy to discuss these differences or perhaps deciding it is appropriate to keep the parties separated rather than having joint sessions.
Listen, listen, listen! Try your best to determine what the source of the behavior really is
It’s not all about you! - Remember that such behaviors may have nothing to do with you.
Remember the importance of self-determination. If this situation really raises concerns for someone, for one reason or another, is it appropriate to continue and/or does something or someone have to change for this to work?
Explore the source of the behavior with the actor.
Consider whether this is your problem – maybe your own background makes you hypersensitive to a behavior that doesn’t bother anyone else.
Consider your own ideas about the source of the behavior and test that out.
Consider ways to address the underlying source (rather than the behavior itself).
Consider ways to ask the actor to modify the behavior – the actor may not be able to change emotions, but can change actions.
Inquire with others about the effect on them, recognizing they may be more or less affected than you are.
Assess the ability to mitigate the impact on others to get the mediation back on track – can it work or does this end the prospects for resolution?
Next time a mediation includes a “difficult” party – we hope that all attendees at the conference and our blog readers feel better prepared to face the challenge and move ahead towards a positive outcome.
RULES here, RULES there, RULES RULES EVERYWHERE!
There is no substitute for reading, knowing, and following the rules of one’s trade, and that includes work in mediation. A lawyer must follow the rules no matter where one practices law and a mediator must follow the rules no matter where one performs mediations. Now that we are all working virtually, practicing law or performing mediations frequently takes lace across many borders of states or countries. There is no substitute for knowing the ethical rules of the road, whether by statute, court rules, laws of other countries, or treaties, wherever the work occurs. Ethical requirements may vary widely from one place to another.
That said, although the wording may vary, there are many consistencies in best practices for facilitative and evaluative mediations everywhere.
1) Self Determination. This is a basic tenant of mediation no matter where you or the others are located. The mediator is not an advocate for either side. The mediator should be sure the ultimate decision on settlement of the case is the parties’ – that it is voluntary and non-coerced.
2) Impartiality. A mediator is often referred to as a “neutral.” This word is used both as a noun and a verb. It is descriptive of the mediators’ position and how they must act and also how they must be perceived. Mediators must be careful not to fall victim to their own actual or implicit biases and to recognize bias in others. If mediators find they have biases for or prejudices against either side , whether before or during a mediation, and they feel they can no longer perform their duties fairly, they should withdraw.
3) Conflicts of interest. A conflict can arise in a number of ways. For example, it would be a conflict if the mediator is related to or in a business relationship with one of the parties. The mediator should not accept the case. However there are instances in which the conflict may not be as apparent. In such instance, the mediator must nevertheless disclose the conflict or potential conflict and its potential implications, even if the mediator believes he or she can be fair. The mediator must give the parties a chance to discuss the issue privately. If the parties then all agree to go forward with the mediator anyway, the mediator may continue. Even if not always required under applicable laws or rules, putting the disclosure and waiver in writing is advised.
4) Appearance of conflict or bias. Mediators must be conscious of the appearance of conflict or partiality for or against a party. Perception can be as dangerous to the process as an actual conflict of interest. In such cases, some state statutes mandate following the same process required for actual conflicts.
5) Competence of Mediator. Mediators must maintain competence in technology used for mediations. This is one component of competence — of equal importance to knowing ethical and other rules of the relevant jurisdictions.
6) Competence of Parties. If at a mediation, a mediator suspects a party is incompetent due to drugs, alcohol or mental condition, the mediator should make sufficient inquiry to decide whether the mediation should proceed. If it’s determined the party is not competent for any reason, the mediation should not proceed.
7) Confidentiality/privileged. There are different rules on confidentiality depending on a mediator’s jurisdiction and the jurisdiction of the parties. In many states, for example, if the parties are in different rooms, virtually or physically , and one party shares information with the mediator, the mediator may not disclose it to the other side without express permission. The mediator must keep the confidences of each party. Often confidential communications of mediation parties are privileged by law, as well. That means a mediator must keep facts disclosed in mediation confidential from all others, including the court if called as a witness, unless all parties agree otherwise. Typically confidentiality requirements are found in the rules of evidence for the relevant jurisdiction but sometimes are set by statute or other law. Mediators must check the rules of any and all relevant jurisdictions because the amount of protection may vary.
Closer to home, Minnesota State Supreme Court ecently adopted rules for mediation that set the standard for Minnesota:
Mn Rule of Civil Procedure (MRCP) 114. 07 regarding Use of Evidence in Court states in part, “Without the consent of all parties and an order of the court,… no evidence from an [alternative dispute resolution] process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.”
MRCP 114.08 Neutrals Duty of Confidentiality states in part “notes, records, impressions, opinions, and recollections of the neutral are confidential, and the neutral shall not disclose them to the parties, the public, or any third persons, unless (1) all parties and the neutral agree …or (2) disclosure is required by law, or professional codes …”
In all instances, the mediator must explain the scope of their confidentiality to the parties.
THESE ARE BASIC and ELEMENTARY practices that should be applied by every mediator with the primary and prevailing practice being to always check the rules, HERE, THERE and EVERYWHERE a mediation will take place.
Japan Adopts New Mediation Act and Sets Path to Accede to Singapore Convention
Japan’s New Mediation Act
On April 21, 2023, Japan announced the adoption of a Mediation Act, which lays the foundation for a robust mediation framework within the country. It provides that a Japanese court must enforce an international settlement agreement, once a party has submitted the agreement and documents proving that it is an international settlement arising from a mediation. To avoid such enforcement, an opposing party must establish to the court’s satisfaction that one of a limited number of grounds for declining enforcement has been established--such as:
Incapacity of a party;
Invalidity of the agreement under applicable law;
The mediator’s serious breach of applicable standards; and
Bias-related issues.
The Mediation Act was adopted to enhance Japan’s mediation infrastructure and encourage the use of mediation in cross-border disputes in Japan. The Act is seen as an indicator of Japan’s interest in leading the global mediation community to promote mediation as a means of resolving cross-border disputes—to demonstrate Japan’s mediation-friendly culture.
One of the additional significant implications of Japan's Mediation Act is its alignment with the United Nations Convention on International Settlement Agreements Resulting from Mediation (commonly referred to as the “Singapore Convention”). The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are beginning the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval or accession. Right now, just eight countries are parties, but many will become bound in the coming years. Japan may be able to be at the forefront of the countries acceding to the Singapore Convention, with this new Mediation Act.
As an aside: The U.S. has not yet ratified the Singapore Convention. The American Bar Association has urged the Department of State to seek accession by the Senate of the convention as soon as possible, but the exact timeline for U.S. accession remains uncertain.