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1.The Challenge with recent legal development, In the deadlock: the…
1.The Challenge with recent legal development
Advantages, However :warning:
devising cost and time savings
Swifer
(Clear time frame) than Juiciary Process (unreasonable length for judicial procedures.)
Cost efficient
(Transparency in Cost)
Accessibility
: outcome is not limited to legal remedies./parties are usually encouraged to think
creatively
and find a win-win solution
repairing your relationship between Parties /preserves or adds value to a commercial relationship (something which traditional legal remedies are unable to offer).
EX:Partner, Licensees
not only addresses the real concerns and grievances of partie
Maintaining Control ( Parties compeletly control over how the dispute is going to be resovle, you can either accept or reject one the otherside offer)
Focus on the
substantive
issues ＋problem solving ,
no
procedural formalities
prevent
them from being
penalised
for
unforeseen
circumstances which are beyond their control.(
This sort of flexibility would provide comfort to parties)
:question:EX: Where a mediator refuses to sign the settlement agreement to avoid the risk of being called as a witness.
Preserving Confidentiality
no found in news or social media
Expertise
(Professional Guidance)
parties are empowered to appoint an industry professional as their mediator.
such a mediator is likely to
better appreciate the nuances
upon which the parties' dispute turns.
EX:
This is beneficial as many
aviation
disputes concern
specialised issues
(Equip with the skillset)with a capacity to intervene
between two parties with different
cultural norms
, such as between Americans and Japanese parties.
Require Soft skills(
authoritarian or diplomatic**)
Emotional backdrop, belligerant enviroment
How to customize something to fit culture
:warning:
Find right mediator
a mediator requiring knowledge of European law combined **
Does online mediation /ODR work? New norm/
Pandemic
Resolving Disputes Online During the Covid-19
there was an online only court in China that has functioned for some time
(Sellers noted that more than 200,000 cases were resolved online each year)
France perspective
One of the challenges in mediation is the fact that contentious proceedings that may be pending before national trademark offices may not be suspended for a sufficiently long period for mediation to take place.
在調解之前的訴訟程序可能根本不會停止
NO INTEREST
Less preference
to use ADR
no international standard or prevalent globally
if a uniform global mechanism
similar to the New York Convention was put in place to enforce international mediated settlement agreements.(A 2017 survey found that 84 per cent of participants would be more likely to use mediation in cross-border disputes)
The
Singapore Convention on Mediation
was introduced specifically to establish such a framework，
最初於 2019 年 8 月 7 日簽署，目前有 52 個簽署國
（新加坡調解公約=聯合國調解產生的國際和解協議公約）
Fiji
+
Singapore
have deposited their Instruments of Ratification of the Singapore Convention on Mediation at the United Nations Headquarters.(25 February 20203 a (Contracting State may declare that the SCM does not apply to settlement agreements to which it or any governmental agencies are a party)締約國可以聲明《新加坡調解公約》不適用於其或任何政府機構作為當事方的和解協議*
特色
H有權限，不確定法概
不再簽約國，也能執行
Even if the parties to the settlement agreement are from non-Contracting States,enforcement under the SCM of an international settlement agreement resulting from mediation in other Contracting States is still possible, especially if the parties provide in their settlement agreement that the Singapore Convention on Mediation will apply.
it urges the relevant competent authority to exercise its
discretion
+supply contract + evidence that the settlement agreement resulted from mediation.(These formality requirements are easily attainable and provide flexibility by not exhaustively prescribing the type of evidence that may be accepted under Article 4(1)(b) of the Singapore Convention on Mediation)
4.However, to promote certainty of enforcement, parties to a commercial contract (be they private or public entities), can insert an opt-in clause to state that the SCM will apply to any settlement agreement that they may enter into.
If contract drafting, the Judge will force 2P to mediate
Shall remain a voluntary
Even when parties are referred to mediation by a court of law, they determine the process and the outcome, and they must agree to the terms of settlement.
只限兩點
1.only applies to
cross-border commercial transactions
and would directly benefit the aviation industry+
parties
to the settlement agreement have
agreed
to its application
Purpose:enforcement
The Convention is intended to facilitate the
enforcement
of settlement agreements coming after international mediation proceedings.
欠卻明確性＋調解的事實難以證明
The Singapore Convention is almost a replica of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is also known as the New York Convention.
The aim of both of these Conventions is for foreign awards and settlement agreements to be recognised and enforced in a State other than the State in which recognition and reinforcement is sought.
Lack of
awareness
and not part of the practice
traning
for lawyer/ law student
:unlock:
Practitioners can share best practice :fountain_pen:
a lack of knowledge, as until recently, mediation was not even mentioned at law school
Eduacation :fountain_pen:SMU really believe the value of peacemaking
Recored settlement in court
Facilitative Mediation
Intake & Assessment
1.MO
2.PIS
3.S
4.IE+AS
5.D
6.OG
7.N
8.PS
9.B
10.O+D
Debrief
showing one’s cards’ before court proceedings
Market:
This should be done both before and after the occurrence of a dispute, either through the inclusion of a mediation or multi-tier dispute resolution clause at the stage of drafting the commercial contract or by encouraging parties to undergo mediation as the first step to dispute resolution, even in the absence of a mediation clause in the contract.
here was a danger in multi-layered clauses which resides in its mandatory nature.
This was in a sense opposed to the voluntary nature of mediation.
How end user(consumer) to have confidence to use this channel
TW doesnt have Related Organization
Parties are also free to appoint a mediation institution of their choice, IPOS reconize the different value propositions offered by these mediation institutions
Arbitration and Mediation Center
SIMC ( Singapore International Mediation Centre)
SMC Singapore Mediation Centre.
( Lawyers' resistence)(the service for lawyer will be less than filing the litigation)
the lack of professional interest from litigators, who would prefer a ‘good trial’ rather than mediation.
Diffulties in enforeceability
Enforcement
:enforcement process creates
uncertainty
for the enforcing party as to whether the international mediated settlement agreement could be enforced at all
The process of registering and enforcing a foreign court judgment may not be straightforward.
suggestion
Further, it takes into consideration the fact that parties in mediation tend to focus on resolving the dispute at hand, rather than on the formalities to enforce an international mediated settlement agreement.
Indeed, by opting for mediation, parties typically assume that the likelihood of default necessitating enforcement actions would be low
The Singapore Convention on Mediation thus provides certainty that international mediated settlement agreements will be enforced in all cases, save for exceptional circumstances.
when it can be done.
Risk of breach of confidentiality/ exposure of party's waknesses
Lack of information on pros an dcons of mediation process
need mroe indormation on case beforehand
Lack of funding, no precedent, imbalance of power
In the deadlock: the refusal to talk