[Editor's notes]

Britain's modern mediation system was born in 1980s. After decades of development, it has developed into a dispute resolution mechanism with standardized procedures, wide application and critically acclaimed. Under the British Civil Procedure Rules, the court encourages or even compels both parties to try to resolve disputes by Alternative Dispute Resolution (ADR) as much as possible and in good faith before resorting to the court.

The topic of this column "Stone from Other Mountains: Trends of International Commercial" mainly introduces the development of commercial mediation in the UK, including the development history of commercial mediation, the representative ADR institutions, expert mediators and the key points of mediation procedures made by the British Ministry of Justice, so as to grasp the development mode of commercial mediation in the UK and provide reference for the better development of commercial mediation in China.

Professionals who are concerned about commercial mediation are welcome to contribute actively.

I. System Construction

The reform of British civil justice in 1990s is regarded as a watershed in the development of British mediation system. Lord Wolf, the leader of the reform, proposed that the new judicial system should "avoid litigation as much as possible", "reduce the antagonism of litigation and increase the cooperation between both parties". The British Civil Procedure Rules of 1999 stipulates that the parties have the obligation to assist the court in promoting ADR, and the court may encourage the parties to use ADR when it deems it appropriate. At present, in Britain, mediation has achieved remarkable results in family disputes, commercial disputes, community disputes, environmental disputes and other fields. Statistics show that at present, there are about 10,000 civil mediation cases accepted in England and Wales each year, with a total amount of about 10 billion pounds.

In 2014-2015, the British Civil Justice Council set up an advisory group on online dispute resolution mechanism. Its main goal was to study the development of online dispute resolution mechanism (ODR) in the UK and published the Report on Online Dispute Resolution for Low Value Civil Claims. It put forward a preliminary idea on the application of ODR in the British court system, and introduced the suggestion procedure through telephone and video conference into the mediation system.

Britain focuses on strengthening the construction of mediation human resources, and has formulated a set of strict Mediation National Vocational Qualification (NVQ) system. This qualification can be issued by the local NVQ Center. Anyone who intends to engage in mediation must pass the necessary training to obtain the practical experience of NVQ Center.

The continuous improvement of mediation system has supported the rapid development of professional mediation institutions in Britain. More than 160 of the more than 200 civil mediation agencies in the UK are commercial mediation agencies. In the British mediation system, there are three important mediation organizations, namely, the Mediation Organization of Family Dispute, the National Mediation Center and the Centre for Effective Dispute Resolution (CEDR).

II. Professional Opinions

This issue of "Professional Opinions" is excerpted from the Civil Mediation Guide of the British Ministry of Justice (hereinafter referred to as "Guide"). The Guide gives detailed answers to such issues as the definition of mediation, the types of cases, the unique advantages, the opportunity to participate, etc., and has a practical guiding role for parties to choose mediation to resolve disputes. The full text can be viewed by clicking: 

https://www.gov.uk/guidance/a-guide-to-civil-mediation#what-is-mediation 

Q：What is mediation?

A：Mediation is a flexible and confidential process used to settle a dispute between two or more people, businesses or other organisations.

It involves appointing a mediator, who is an independent and impartial third person, to help the parties talk through the issues, negotiate, and come to a mutually agreeable solution. You can mediate before taking legal action or while legal action is ongoing.

Q：What kind of disputes are suitable for mediation?

A：Mediation can be used to resolve almost all types of civil dispute, including: professional negligence, personal injury, breach of contract, money disputes, bankruptcy, wills and probate disputes, trust disputes, charities disputes, guardianship disputes, land or property disputes, landlord and tenant disputes, neighbour disputes, intellectual property disputes, defamation.

Q: What are the benefits of mediation?

A: Mediation allows you stay in control. Unlike in court, where a judge makes the decisions, in mediation you are able to decide how you want to resolve the dispute and don’t have to accept an outcome you are not happy with.

Mediation is usually much quicker and much less expensive than going to court, so it can be a more efficient way of resolving disagreements that allows everyone to move on from the problem sooner.

Mediation provides a safe and supportive environment. The mediator will listen to all views, talking to you privately, and sometimes together with the other party, to help guide you through the process.

Mediation is confidential. Where disputes are resolved through the court, is potentially a very public process. However, when disputes are settled out of court through mediation, it is private between you and the other party. 

Mediation can help preserve your relationships. Settling a dispute through an adversarial court battle can put added pressure on the relationship between both parties. However, mediation helps you focus on communicating effectively with each other to find solutions that work for all.

Q: When is the best time to mediate? 

Mediation can take place at any time before your case reaches a hearing or trial at court, and the best time will often depend on your individual case. In general, it is best to try mediation as soon as you can. This will help reduce the amount of time and money spent on the dispute and open a dialogue with the other party before they become too fixed in their position. If you have already started a court claim and wish to mediate, the court can pause your case to enable you to do so. The judge will not be told what is discussed or offered at mediation.

Q: Is offering to mediate a sign of weakness? 

A: No. It can be empowering to make the first move and you are always in control at mediation. You choose what information can be discussed with the other side, and you choose whether to settle and on what terms.

Q: How long does mediation take?

A: Both sides may come to an agreement in just a couple of hours or it might take more than one session over a longer period. However, the majority of civil mediations are concluded in a day.

Q: What happens during mediation?

A: This can vary depending on the type of mediation but in general the mediator will talk to both sides separately to hear their version of events, and, if agreed, may then bring all the participants together to talk.

They are there to assist with the negotiation so both sides can hopefully reach a settlement they agree on. Mediators are experts in communication and understand the strong emotions that can be generated when we are in dispute.

Q: Does the mediator decide what happens? 

A: The mediator helps to keep things moving forward so both sides feel progress is being made, but the mediator doesn’t decide on the outcome. Mediators are skilled at helping parties to see a way through the dispute, but do not impose solutions. It is for you and the other side to agree on how you are going to settle the dispute.

Q: Is mediation confidential? 

A: Yes. What you say during mediation and the outcome at the end can only be shared if everyone agrees to it. In mediation all conversations are ‘without prejudice’ - which means that nothing that’s been said at mediation can be used in court, should the dispute go that far. In civil disputes, you can also decide what information is shared with the other party.

Q: How does a mediation end?

A: In most types of mediation, if you agree on a resolution you will sign a written agreement, known as a ‘settlement agreement’, which will set out the agreement you have reached.

Q: Is the agreement legally enforceable?

A: Yes. For civil disputes the signed agreement serves as a legally binding contract.  If court proceedings have already commenced, an order of the court which sets out what was agreed in mediation can be made by agreement of those involved (this is known as a ‘consent order’ or a ‘Tomlin order’).

Q: What happens if there isn’t an agreement?

A: You might have made good progress but not be quite at the position of settlement yet. It can often be helpful to take a break to think things through then resume mediation. Mediation has a high success rate, with the majority of civil disputes settling on the day or shortly after. If, at any stage, you decide you want to proceed with taking your case to court then you can do that.

III. Professional Organizations

As one of the most influential dispute resolution organizations, the Centre for Effective Dispute Resolution (CEDR) is an important leading force in the British civil and commercial mediation market, specializing in mediation and alternative dispute resolution. It is an independent non-profit organization and registered charity. CEDR was established in 1990. It was based on the Confederation of British Industry, and was supported by many first-class law firms, industry associations and public departments in the early stage. Since its establishment, CEDR has developed into an independent dispute resolution service organization with great influence in Europe, and it is also one of the important international organizations in the field of dispute resolution and conflict management in the world.

At present, CEDR has about 200 registered mediators, whose professional fields include banking and finance, charity, construction engineering, energy and resources, insurance, health drugs, transportation, media and entertainment and real estate. According to the types of disputes that mediators are good at, they include border disputes of partnership, labor, intellectual property, medical, lease, personal injury, tax, commodity sales, trust and wills, etc.

CEDR provides dispute resolution services such as mediation, arbitration, neutral evaluation, negotiation assistance, evaluation of construction contract disputes, expert consultation and independent investigation for civil and commercial disputes. Its goal is to provide the society with the skills and solutions for effective dialogue and bring about sustainable changes. To achieve this goal, apart from directly providing dispute resolution services, CEDR also designs conflict management mechanisms, improves conflict resolution systems and customizes dispute resolution procedures for large companies, government departments and social organizations. CEDR mainly operates in the following four main ways: promoting mediation through activities, plans and services; providing dispute resolution for individuals, enterprises and other organizations; training mediators (up to now, CEDR has trained more than 5,000 mediators worldwide); Advise organizations to help prevent and resolve conflicts.

IV. Mediation Experts

Danny McFadden is the managing director of CEDR Asia Pacific in Hong Kong, China. Since 2004, he has served as the director of CEDR and the managing director of CEDR Asia Pacific, specializing in handling cross-cultural and transnational disputes. He is also the regional mediator of the World Bank and the United Nations in Asia, mediating disputes in the Asia-Pacific region, with special expertise in cross-cultural and transnational disputes. Danny, who speaks fluent Mandarin, has lived and worked in Southeast Asia and Central Asia for many years. He has worked with parties from many different cultures in business negotiation and mediation, and has a clear understanding of the dynamics of transnational mediation and work. In 2013, Danny accepted the appointment of Shanghai Commercial Mediation Center (SCMC) and became a special mediator of the International Commercial Mediation Court in Shanghai Pilot Free Trade Zone. Since then, he has been working with SCMC to publicize and promote the international commercial mediation system in China, and has given international leading professional support to the development of commercial mediation in China.

Danny also serves as a senior mediator and consultant in the Asia region of the Office of the United Nations Ombudsman. For more than ten years, as a project manager, he has developed conflict management and mediation programs and conducted courses and seminars for lawyers, judges and other professionals in Azerbaijan, Cameroon, China, Kazakhstan and Guyana, including analyzing the local legal environment with partners and promoting mediation to government ministers, judicial institutions and local law associations. Danny is one of the authors of Kluwer Law Book Company. He published the Mediation in Greater China in 2013 and the second edition of Mediation in Singapore in 2017.

[References] 

1. Qi Shujie, 英国调解制度, People's Mediation, No.12, 2018; 

2. Jiang Liping, 英国有效争议解决中心的调解机制及借鉴, People's Court News, September 22, 2017, 8th edition. 

[Laws and Regulations] 

1. Civil Procedure Rules(1999) 

https://www.justice.gov.uk/courts/procedure-rules/civil 

2. Oline Dispute Resolution for Low Value Civil Claims

https://www.judiciary.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf 

[Comments and Suggestions]

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