Promoting Certainty, Credibility and Inter-operability in Cross-Border Mediation

How can parties to a cross-border mediation be assured of certainty and credibility in the absence of a common global standard for mediators and the mediation process?

Ms Ana Maria Maia Gonçalves, Founder of the Institute for Certification & Training of Lusophone Mediators (ICFML), addressed these issues in the webinar, “Ensuring Quality in Cross-Border Mediation: The Place of Standards” which was organised in conjunction with the Singapore Convention Week 2023.  The information in this article is taken from Ms Gonçalves’s presentation on “Promoting Certainty, Credibility, and Interoperability in Cross-Border Mediation: Standard or Framework?”.

Quoting from a book entitled “The Variegated Landscape of Mediation” by Manon Schonwille and Fred Schonwille that carried out a survey of the mediation landscape across 60 countries, Ms Gonçalves pointed out the conclusion that the authors came to:

“It is difficult to extract any clear standards or processes for mediation when 2 parties come from different jurisdictions, especially when the expectations, styles and approaches to mediation vary greatly from country to country.”

Ms Goncalves highlighted that while standards may contain a formula for the best way of doing something, this may not be the best approach in a cross-border mediation where flexibility and self-determination have been identified as essential success factors.

She then went on to touch on two approaches in dispute resolution:

·       An adjudicative process based on a rules-based standard which involved laws, precedents, procedural rules, and rights and due process; and

·       A needs-based framework characterised by party-centricity, confidentiality, informality and adaptability.

While the rules-based standard relied on an external authority to make a decision, the needs-based framework (which mediation was based on) prioritised the parties’ ability to shape the resolution process of their dispute according to their needs and preferences.

The challenge in mediation then, according to Ms Goncalves, was in creating a framework that would bring more certainty to parties about the processes and approaches used by the mediator, while at the same time strengthening the platform for enforceability of cross-border mediation settlement agreements under the Singapore Convention on Mediation.

Ms Goncalves suggested that the solution was not found by attempting to achieve a unique or uniform standard for mediation. Instead, she pointed to the Universal Disclosure Protocol for Mediation (“UDPM”) which was a broad framework which required mediators to offer full disclosure on a list of elements governing the mediation process before the start of the mediation.

The UDPM (www.udpm.org) essentially aimed to harmonise how mediators discussed their mediation process with the parties and therefore allow for recognition and adaptation of the processes to cater for cultural and national differences. This would serve to achieve a level of standardisation of the mediation process.

According to Ms Goncalves, the list of elements covered six areas - the role of the mediator and the parties, general process, conflict of interest, confidentiality, technology and the impact of the venue. These six elements were defined after a discussion by several working groups and were based on the key consideration of providing certainty to parties, as well as preserving the flexibility of mediation.

Ms Goncalves noted that as of August 2023, UDPM had gained a strong momentum as many mediation institutions had already endorsed the protocol. She concluded with a wish for greater recognition and adoption of the UDPM by all stakeholders involved in commercial cross-border mediation.