Transcript Mediation
The Business Case for Mediation (for “ICC Arbitration & Amicable Dispute Resolution – Focus on India”) Jonathan Leach, partner, Hogan Lovells Lee & Lee 16 July 2011 Contents • What is mediation and the main pros? • How to get to mediation (including mediation clauses)? • Where no such clause, relevant factors when deciding whether to mediate and how to suggest it? • Do arbitral tribunals have a role to play in promoting mediation? • Making the mediation a success www.hoganlovells.com 2 What is mediation? • “Mediation is a low cost and flexible process conducted without prejudice and confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution” www.hoganlovells.com 3 Getting to mediation • By a mediation clause in the contract • By agreement between the parties • By court recommendation/referral www.hoganlovells.com 4 Example mediation clause (in a multi-tier clause) .... 1.1) In the event of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, performance, breach, validity or termination (a "Dispute"), directors or other senior representatives of the Parties with authority to settle the dispute shall, within [7] days of a written request from one Party to the other, meet to attempt to resolve the Dispute. 1.2) If the Dispute is not resolved at that meeting, the Parties shall attempt to resolve it by mediation [in accordance with [institution procedure]. Unless otherwise agreed between the Parties, the mediator will be nominated by [institution]. To initiate the mediation a Party must give notice in writing to the other Party requesting a mediation. The mediation shall take place in [Singapore] and the language of the mediation shall be [English]. 1.3) [Referral to arbitration] .... www.hoganlovells.com 5 If no mediation clause: To mediate or not to mediate? • • • • • Timing? Parties’ attitudes? Importance of maintaining working relationship? When is mediation not suitable? If no mediation clause, how to suggest mediation? www.hoganlovells.com 6 Mediation during an arbitration • Do arbitrators have a role to play in facilitating settlement/promoting mediation? • Should they enforce a mediation clause if it has not been followed? • Should they provide a preliminary view on the merits? • Can they also act as mediators? (ie “med/arb”) • Agree the ground rules and obtain waivers of any subsequent challenge to the arbitrator or award www.hoganlovells.com 7 The mediation – making it a success • • • • • Choosing the right mediator Preparation Representatives with authority Confidentiality Role of lawyers? www.hoganlovells.com 8 Thank you! www.hoganlovells.com 9 www.hoganlovells.com Hogan Lovells has offices in: Abu Dhabi Alicante Amsterdam Baltimore Beijing Berlin Brussels Budapest* Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Jeddah* London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Riyadh* Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar* Warsaw Washington DC Zagreb* "Hogan Lovells" or the "firm" refers to the international legal practice comprising Hogan Lovells International LLP, Hogan Lovells US LLP, Hogan Lovells Worldwide Group (a Swiss Verein), and their affiliated businesses, each of which is a separate legal entity. Hogan Lovells International LLP is a limited liability partnership registered in England and Wales with registered number OC323639. Registered office and principal place of business: Atlantic House, Holborn Viaduct, London EC1A 2FG. Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. The word "partner" is used to refer to a member of Hogan Lovells International LLP or a partner of Hogan Lovells US LLP, or an employee or consultant with equivalent standing and qualifications, and to a partner, member, employee or consultant in any of their affiliated businesses who has equivalent standing. Rankings and quotes from legal directories and other sources may refer to the former firms of Hogan & Hartson LLP and Lovells LLP. Where case studies are included, results achieved do not guarantee similar outcomes for other clients. New York State Notice: Attorney Advertising. © Hogan Lovells 2011. All rights reserved. * Associated offices SNGLIB01_97378_2