Copenhagan Accord: Significant progress was made towards attacking climate change and adapting to the difficult road ahead

The COP15 climate change talks in Copenhagen were not a failure. Quite to the contrary, great strides were made in weaving the diverse cultural and political differences of our world into a cohesive whole to attack climate change. Having personally observed the many contact groups negotiating text in Bangkok, Barcelona and Copenhagen, it became apparent that the negotiators were trying to create a climate change document that would be legally binding while at the same time addressing the concerns of their individual countries and groups of countries.

For instance, addressing adaptation in neighboring nations that are experiencing cross-border desertification as opposed to an island nation that faces rising sea levels and acidification is complex and multifaceted. Choosing a certain text option proposed by one country group, as opposed to another option proposed by another group, could have devastating effect on the economies of the group whose option was not chosen for the final text. Therefore, the contact group chairs worked tirelessly trying to form consensus on bracketed text and agreeable options to the text.

To complicate matters more, there were two separate treaty tracks being negotiated, one under the further commitments under the Kyoto Protocol (CMP 5), and the other for long term cooperative action under the convention (COP 15). When negotiating text in the contact groups, it was often mentioned that a particular group needed to know the decisions of another group because those decisions would have significant impact on the text that the first group was negotiating. And, due to the need for consensus, before a particular option was chosen or brackets taken off text, the contact groups were constantly seeking information from the other groups negotiating text in order to ensure cohesiveness as the treaty documents developed.

It seemed that the flow of information and the arrival of the ministers from around the world, who became involved in the negotiations, became the biggest challenges during the last few days of the conference in Copenhagen. It was apparent by most that a legally binding treaty would not result from Copenhagen due to the complex differences on key elements of the text that still existed.

However, leaders from 193 countries meet, talked and negotiated in Copenhagen to address the reality of climate change issues. And, an Accord was reached on climate change with a deadline of next year to agree upon the legally binding text and to begin funding for adaptation and setting mitigation targets by major emitters around the world.

Yes, significant progress was made at Copenhagen. And, as a taxi driver told me, “The treaty will have a major impact in our lives so it is better to get it right than rush it.”

COP15 in Copenhagen: World Leaders Bring Hope to Talks

KIRF Co-Founder Mark Kirwin is attending the United Nations sponsored COP15 Climate Change Talks in Copenhagen as a volunteer mediator for Mediators Beyond Borders. Here is his update:

A truly tremendous event is unfolding here in Copenhagen. Amid all of the street protests, press summaries, security issues and vast numbers of NGOs (many of which have provided valuable information to the Parties), is a gathering of the leaders of the world. This is an historic gathering of world leaders who are here to address the catastrophic consequences of unchecked climate change.

As Gordon Brown just said, "It is no use saying we are doing our best, we must do what needs to be done."

This week I spoke with delegates from around the world at the COP 15 climate change talks in Copenhagen. I spoke about mediation being used as a mechanism to resolve climate change disputes as well as about the interpretation and implementaion of the anticipated treaty. I walked by world leaders trying to reach agreement on climate change policies. Yes, it is difficult and complex, with words and numbers having significant multi-level meanings and impacts to different nations. But the negotiators are working hard. (Mark Kirwin, volunteer mediator for Mediators Beyond Borders, and Yvo de Boer, head of the UN Climate Change Secretariat.)

Let us continue with our hope that a positive outcome will be reached in Copenhagen.

P. Mark Kirwin, Esq.

COP15 Climate Change Talks: No Agreement Yet

At the high level segment plenary at the COP15 Climate Change Talks in Copenhagen, the chair for the AWG-KP announces no agreement based upon numbers. So, at this stage of the Climate Change Talks there is still a low consensus on the key issues and, thus far, there is no amendment to the Koyoto Protocol. The COP/CMP 5 President is trying to set in motion dialogue with the Party heads of state on the issue. In addition, security is so tight that Party heads of state are having problems getting into the Plenary sessions. Several major groups put forth that the text is not yet in the form to be considered by the high level conference as suggested by the COP chair. They request that the political aspects be considered by the high level, but the technical aspects be sent back to the AWG-KP for further work for a period of one day. Yet there are other major groups that recommend that the political bargaining to take place. Rather that reconvene the AWG-KP, there can be informal discussions on some of the remaining issues.

The meeting was just suspended because the President of the COP resigned. She has been reassigned by the Foreign Minister as the special representative to conduct informal negotiations between the ministers of the Parties.

COP15 Climate Change Talks, Copenhagen: Two Treaties

We are now halfway through the second week of the COP15, climate change talks in Copenhagen. It appears that there is general acceptance that there will not be one treaty. Instead, the parties are working on two separate tracks, one under Kyoto Protocol (AWG-KP) and the other under Long Term Cooperative Action (AWG-LCA). As a result, there are discussions of two separate treaties.

As one can well imagine, the negotiations are very tough at this stage. The ministers of the countries are arriving and now working in the negotiations. The negotiators must answer to their countries. And, the world expects results at COP15. There are strenuous objections to certain text to the proposed documents and also concessions so that no particular party is pictured as the one stalling the negotiations. The contact group chairs are working very hard to build the bridges necessary for consensus by the Parties to the text.

As I write, negotiations are underway for the contact group on other issues for the AWG-KP on further commitments for the Annex I Parties. The Parties are discussing greenhouse gases, sectors and source categories; common metrics to calculate the carbon dioxide equivalence of anthropogenic emissions by sources and removals by sinks; and other methodological issues.

In the earlier session, the Draft decision -/CMP.5 for consideration of information on potential environmental, economic and social consequences, including spillover effects, of tools, policies and measures. This draft decision will now be sent to the Chair of the KP for consideration. This is one area where mediation can be used as a mechanism to resolve conflict under the potential consequences that will arise under the treaty and climate change from the local to international levels.

Promoting Mediation at Climate Change Talks, COP15

Mediator Mark Kirwin is helping promote mediation as a resolution mechanism for accord at the UNFCCC Climate Change Talks with Mediators Beyond Borders. As the reality of global warming and it's increasing impacts on food production, economies, poverty, human health and energy usage is becoming more widely understood, alternative dispute resolution tools such as mediation are important tools for peaceful resolution of climate change issues.



The climate change talks are progressing towards helping countries mitigate global warming and adapt to it's impacts peacefully. Mark will be attending the upcoming COP15 conference in Copenhagen, Denmark.

UNFCCC Climate Change Talks, Bangkok: Days 4 & 5

There appears to be movement backwards and forwards, coupled with frustration and peppered with optimism, as the negotiations continue in the open session Climate Change Treaty negotiations in Bangkok this week. The divide of ideals and political realities of the parties have become foundational, negotiated text statements.

This week's United Nations Framework Convention on Climate Change (UNFCCC) Climate Change Talks in Bangkok will determine the language in the COP15 Climate Change Treaty due to be ratified in Copenhagen this December. It will be the successor treaty to the Kyoto Protocol, which expires 2012.

Below are some of my observations from the conference in Bangkok.

During negotiations on the Financial Resources Group, India questioned the private sector funding language because it would require the private sector to keep two sets of books, one for international scrutiny and the other for normal business. India advanced that the developing countries have their own domestic programs without MRVs (or Measurable, Reportable, Verifiable). It questioned as to what happens to the suggested national mitigation funding if significant amounts of funding come from the private sector for NAMAs (National Appropriate Mitigation Actions). Canada’s response was that there should not be a discussion of offsets in this session because it was being discussed in another room.

During discussions on the Enhanced Action on Adaptation and Associated Means of Implementation, Australia put forth that all Parties need to draw on a variety resources to achieve funding goals. There should be direct contribution in relation to capacity. South Africa responded that this is the heart of the discussion. South Africa voiced that there must be financial commitment by the developed countries. The South African delegates maintained that developing countries are already paying for their own adaptation which is holding back their goals of eradication of poverty and sustainable development. According to the Philippines, the resources must be predictable and delivered in a timely manner. The resources to the developing countries should be based in large part on grants. The cost of inaction is much greater than action.

The United States stated that there are few issues as important as finance. There needs to be an upscale of contribution. The results of climate change will result in a whole scale change in energy structures and economics. This cannot be done with just one small group of financial contributors. We need to bring all capacities to bear under the broadest interpretations. The new US administration intends to scale up contribution for adaptation. The private sector will provide mitigation opportunities. The parties must be flexible in the manner of contribution, maximizing resources. The US will not sign the treaty of there is an international tax included in the language. This sparked statements by many supporting the G77 and China’s position which looked for funding from developed countries.

During negotiations on the subgroup on mitigation under 1(b)(i) of the 2007 Bali Plan, Sweden advanced that we need a list of predictable targets and a list of NAMA’s. The US again voiced concern that we were not negotiating text that would end up in Copenhagen. Brazil, on behalf of the G77 and China, countered Australia’s proposal for a schedule of NAWA’s, because it weakens the commitments of the developed countries because it weakens the level of ambition and contribution to the global level of mitigation.

I was able to briefly talk with the US negotiation team regarding mediation proposals.

You can read a daily update about the progress of UNFCCC Climate Change Treaty negotiations in Bangkok on the COP15 web site.

UNFCCC Climate Change Talks, Bangkok: Day 3

Today is the third day of the UNFCCC Climate Change Talks in Bangkok, Thailand. One of the last open sessions yesterday, Day Two, concerned the Contact Group on Enhanced Action on the Provisions of Financial Resources and Investment. The session started with the delegates from Canada requesting simplification of the language. They asked that it not concentrate on the Principles in the FCCC/WGLCA/2009/INF.2 . This is the document that contains the revised negotiated text prepared by the facilitators during and after the informal UNFCCC Climate Change meetings of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention in Bonn August 2009.

Today it became apparent that the United States and Canada- and the EU to a certain extent- wanted to bypass the Principles of the Enhanced Action plan on Financial Resources and Investment and instead concentrate on specific language and action. They voiced concern that concentration on Principles took valuable time away from negotiations of substance. Further, as the United States stated, the guiding principles set forth in this section are already covered by the convention. The thinking was that simplicity equals clarity. The United States further indicated that simplicity helps in aiding and reaching agreement with divergent perspectives.

The United States offered that the whole section be deleted. This was in response to the Philippines on behalf of the G77 and China who thought that the principles were a good idea, presented its views on each paragraph of the proposed text. Many of the developing countries sided with the Philippines such as Bolivia and Egypt. Uganda’s response, on behalf of the Africa Group, was that the text was too long and it would be more effective to spend time discussing core issues. Uganda felt that if time was taken to discuss principles, there would not be enough time to discuss the real issues such as financing. Barbados, on behalf of the Alliance of Small Island States, agreed with Uganda.

Later, at a dinner, regarding the Economics of Adaptation to Climate Change, I had informative discussions with delegates from the Philippines and Mali regarding the United States' position and the ratification possibilities by the United States Congress. There had also been discussions about the positive relationship of the delegates from the United States, Brazil, China and Indonesia regarding the United Nation's Reducing Emissions from Deforestation and Forest Degradation in Developing Countries Program (UN-REDD) issues.

Lastly, our thoughts go out to those in Samoa, the Philippines and Indonesia regarding the recent earthquakes and flooding tragedies as well as those who have suffered tragedy in Southeast Asia from the current typhoon.

UNFCCC Climate Change Talks, Bangkok: Day 2

We are winding up the second day of the UNFCCC Climate Change Talks in Bangkok, Thailand. The delegates here seem to be either representing governments with an intent of influencing proposed climate change treaty text negotiations or they are from NGOs that are intent on influencing the governments. The past two days have consisted of closed sessions for the national delegations, such as from the G77, China, Africa, the EU, the Island States etc., and open sessions for general text negotiations. We have been attending the open sessions. Today, we attended sessions regarding Adaptation, Capacity Building and Mitigation as well as the Regional Briefing by the United Nations System Organizations on Climate Change Programmes in the Asia and Pacific Region.

The Regional Briefing was chaired and monitored by the Executive Secretary to the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). The panel consisted of representatives from United Nations Environmental Programme (UNEP), Food and Agriculture Organization of the United Nations (FAO), Asian Development Bank (ADB), United Nations Development Programme (UNDP) and ESCAP. In addition to discussing their programs, the panel was faced with difficult questions from the audience as to how various policies and procedures were being implemented by these organizations. There were questions such as: How to transition to a green economy? How to benefit the local populations? How are these programs benefiting children? How do these programs benefit the farmers who are facing increased difficulties as a result of extreme weather events cause by climate change? Why do the students in school in the developing nations not feel the effects of the project outcomes from these programs?

The proposed climate change treaty text negotiation open sessions were attended by the Parties and conducted by chosen chairpersons who facilitated discussions on certain proposed consolidated text that was discussed at the Bonn Climate Change Talks in August. However, as one Chair stated, the discussions were more about positions than actual content. During the sessions, each delegation’s chosen speaker put forth their positions on the proposed text, often combined with general statements supporting the delegation’s policy positions.

The Adaptation and Capacity Building sessions focused on different views regarding whether to focus on the guiding principles or implementation. The session on the mitigation portion of the proposed climate change treaty text regarding the Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD) program was directed at discussions of substance. For instance, India did not think that the paragraphs in question regarding scope could be discussed without first defining the proposed term “REDD plus actions.”

REDD, or Reducing Emissions from Deforestation and Forest Degradation in Developing Countries, is an effort to create a financial value for the carbon stored in forests, offering incentives for developing countries to reduce emissions from forested lands and invest in low-carbon paths to sustainable development.

Brazil led the counter to India by saying the Parties should not get bogged down with a "REDD plus" definition because it was adequately defined in the United Nations Climate Change Conference of 2007's Bali Action Plan. Brazil was supported by the United States and the European Union. Norway indicated that "REDD plus" was a results-based mechanism through Measurable, Reportable and Verifiable actions which are a part of National Appropriate Mitigation Actions (NAMA) for developing countries as mentioned in the Bali Action Plan. Thailand and other forest rich countries responded that for "REDD plus" to be a part of NAMA, there needs to be a definition for NAMA and clarification of "REDD plus". Tanzania wanted to make sure that the human rights of indigenous peoples were adequately addressed in the REDD discussions. Japan stressed that the REDD language was necessary to secure environmental stability.

Today I gave Mediators Beyond Border's Supporting Statement on the Importance of Mediation to Climate Change to the Parties. I had brief discussions with several party and NGO representatives about mediation during breaks and before and after the conference. The delegates I have spoken have indicated that they consider mediation to be a good option in resolving climate change disputes.

UNFCCC Climate Change Talks, Bangkok, Sept. 28 - Oct. 1

This week, as part of my work as the Asian Coordinator and as a member of the COP15 Coordination team for Mediators Beyond Borders, I will be at the United Nations Framework Convention on Climate Change (UNFCCC) Climate Change Talks in Bangkok for the COP15 Treaty. We will discuss using mediation as a means for peaceful resolution in climate change disputes as well as adding language to that effect in the upcoming climate change treaty that is now being drafted. The new climate change treaty, COP15, will replace the Kyoto Protocol treaty. The convention is being held at the United Nations Conference Center in Bangkok September 28th through October 9, 2009.


"This is the penultimate negotiating session before COP 15 in Copenhagen in December, at which an ambitious and effective international climate change deal is to be clinched, " according to today's announcement on the UNFCCC web site.

The Kyoto Protocol sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas emissions. These amount to an average of five per cent against 1990 levels over the five-year period 2008-2012.

The Kyoto Protocol as explained by the UNFCCC:

"Under the Treaty, countries must meet their targets primarily through internal national measures. However, the Kyoto Protocol offers them an additional means of meeting their targets by way of three market-based mechanisms:

• Emissions trading – known as 'the carbon market'
• Clean development mechanism (CDM)
• Joint implementation (JI).

"The mechanisms help stimulate green investment and help the nations meet their emission targets in a cost-effective way."

COP15 Climate Change Treaty with Mediators Beyond Borders

In addition to my work for Mediators Beyond Borders as their Asian Coordinator, I am also a member of its Climate Change Treaty, Coordinating Committee. We are actively involved in working towards the inclusion of mediation language in the United Nations Treaty for Climate Change. The Parties to the Treaty are presently working on language to replace the Kyoto Protocol.

The Parties are holding treaty language negotiation conferences in Bangkok, New York, and Barcelona in the next few months, ending with the 15th Conference of the Parties in Copenhagen (COP15) in the first weeks of December. I am honored to be working with other dedicated and skilled mediators at MBB towards Treaty language that includes the option of mediation to peacefully resolve climate disputes. I am also planning on attending one or more of the Treaty Conferences to discuss mediation and climate change.

Below, please see MBB's proposed amendment language.

Thank you to all for the hard work and vision.

Mark Kirwin, Esq.

Proposed Language to Encourage Mediation in Climate Change Treaty

Presented to the 15^th Conference of the Parties

United Nations Framework Convention on Climate Change

Copenhagen, 2009

by Mediators Beyond Borders

Mediators Beyond Borders, an NGO Observer Organization admitted to the 15^th Conference of the Parties (COP 15), together with the organizations and individuals listed below, respectfully submit the following proposal for an Annex on Conciliation for adoption by the 15^th Conference of the Parties.

Background

Article 33, Section 1 of the United Nations Charter provides:

“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Article 19 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change currently governs the settlement of disputes, and provides:

“The provisions of Article 14 of the Convention on settlement of disputes shall apply mutatis mutandis to this Protocol.”

Article 14 of the Convention provides for the settlement of disputes as follows:

“1. In the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.

2. When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party which is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, in respect of any dispute concerning the interpretation or application of the Convention, it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice, and/or

(b) Arbitration in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration.

A Party which is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedures referred to in subparagraph (b) above.

3. A declaration made under paragraph 2 above shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the Depositary.

4. A new declaration, a notice of revocation or the expiry of a declaration shall not in any way affect proceedings pending before the International Court of Justice or the arbitral tribunal, unless the parties to the dispute otherwise agree.

5. Subject to the operation of paragraph 2 above, if after twelve months following notification by one Party to another that a dispute exists between them, the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be submitted, at the request of any of the parties to the dispute, to conciliation.

6. A conciliation commission shall be created upon the request of one of the parties to the dispute. The commission shall be composed of an equal number of members appointed by each party concerned and a chairman chosen jointly by the members appointed by each party. The commission shall render a recommendatory award, which the parties shall consider in good faith.

7. Additional procedures relating to conciliation shall be adopted by the Conference of the Parties, as soon as practicable, in an annex on conciliation.

8. The provisions of this Article shall apply to any related legal instrument which the Conference of the Parties may adopt, unless the instrument provides otherwise.”

Argument Offered by Mediators Beyond Borders for Proposed Annex

While Article 14 allows for the use of “any other peaceful means,” it does not explicitly mention mediation. While conciliation and the International Court of Justice are provided for, mediation is not mentioned as a method that can be used before, during and after these procedures. And while Section 7 provides for additional procedures to be adopted by the Conference of the Parties in an annex on conciliation, no annex is anticipated for mediation.

Therefore, Mediators Beyond Borders respectfully proposes that COP 15 adopt the following language regarding the mediation of climate change disputes:

Proposed Annex on Conciliation:

“1. (A) Reaffirming the principles set forth in Chapter IV, Articles 33-38 of the UN Charter governing the peaceful settlement of disputes, the parties agree that the parties to any dispute resulting from the interpretation or implementation of this treaty “shall first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

(B) In the event that efforts to negotiate a solution are unsuccessful, parties are encouraged to use mediation to settle their disputes at all stages, including before, during and after conciliation, arbitration, and actions before the International Court of Justice.

(C.) Mediation shall be conducted in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on mediation.”

Respectfully submitted,

Mediators Beyond Borders

MBB Report- 1st Asian Mediation Association Conference, “Mediation Diversity- Asia & Beyond” June 4 and 5, 2009

By: Mediators Beyond Borders Asia Coordinator, Ambassadors Program: P. Mark Kirwin, Esq.
(Please note that the conference was a whirl wind of activity and the following is simply the observations, and feverish note taking, of one individual. My sincere apologies if any of the below facts were not recorded accurately.)

The 1st Asian Mediation Conference (AMC) was a wonderful event, full of diversity in people and cultures, tremendous hospitality on behalf of the Asian Mediation Association (AMA) and the Singapore Mediation Center (SMC), and knowledgably speakers in areas of mediation and arbitration. The AMA was truly a five star event!

Day One:

Our first day started with registration where I started to meet mediators from Australia, Switzerland, Malaysia, Indonesia, Pakistan, the Philippines, and Singapore. We then took our sets and were treated to a spectacular Singaporean traditional dance performance. Once the dance was completed, we were given a warm welcome by Justice Andrew Ang, Judge, Supreme Court of Singapore and the Chairman of the Singapore Mediation Center and the Minister of Law and Second Minister of Home Affairs, Mr. K Shanmugam, before we listened to the keynote address by Mr. Ahtisaari.

Mr. Martti Ahtisaari was the 2008 Nobel Peace Prize winner and former President to Finland. Mr. Ahtisaari discussed the conflict in Myanmar (Burma), addressing a four step plan for cessation of conflict and restoration of human rights.

1. Government dialogue.
2. Dialogue with groups outside of the government.
3. Dialogue with progressive units inside of the government.
4. Eradicate poverty.

He then indicated that mediation is only one aspect of conflict resolution. The other is reconciliation by the people. Genocide should not be forgiven. But local reconciliation is warranted. As mediators, we need to rely on our own values and skills. He described mediation as a skill and referenced that peace and justice are not opposites. He cautioned that international mediators need to be more result oriented, not process oriented, for conflict resolution.

Finally, he acknowledged that there is a new generation of mediators (pointing to the audience) and it is the duty of the old guard, such as himself, to offer assistance to the new generation of mediators.

We next heard about models of mediation from different Asian Countries after a sit down lunch.

Different Mediation Models from Asian Countries:

1. Malaysia-
The Malaysian mediation plan is based upon the San Jose ADR process where early mediators from Malaysia went for training. The Malaysians have submitted a draft mediation plan to their legislature for approval. They typically mediate before filing suit. Settlement agreements are binding. Confidentiality is also favored. As with Malaysia, a current them throughout the conference was that for mediation to survive and thrive in Asia, it has to be supported by the government.


2. Indonesia-
The head of the Indonesian delegation, Mr. Mauna, Chairman of the Indonesian Mediation Group was interested in MBB training. In 2003, mediation started in Indonesia. One needs to be a certified mediator to mediate in Indonesia. A judgment can be thrown out if the matter is not mediated prior to trying the case, per their mediation statute. They have conducted 23, 40 hour mediation training sessions to certify mediators.

3. India-
Mediation in India is also new and growing. Since 2004, they have conducted 2,000 mediations. There are now 21 courts in India that use mediation. They have 124 mediators for those courts.

4. Philippines-
The Philippines uses court annexed mediation. The parties must first conduct mediation by an accredited mediator. If the matter does not settle, then they must mediate with the judge. Only then are they permitted to try the case. Mediation is conducted if one party files an appeal before the appeal is heard.

The mediation program started 10 years ago. The first mediation trial run was conducted using judges. This program has only a 32 percent rate success. Then, the Philippines requested training from the Singapore Mediation Center. Now all mediators have training followed by a 60 day internship.

In 2001, the Philippines implemented court annexed mediation. The program was mandated by the courts. However, only 50% of the parties follow through with mediation. From November 3, to December 15, 2008 of the 10,800 cases mediated, 68 percent settled. The Philippines is a vast net work of remote courts. Therefore, the mediators travel by groups in vans to the remote area courts. The Philippines program is sustained by filing fees. They get 50 million pesos a year to operate the mediation program.

5. Hong Kong-
The Hong Kong Mediation Center is a non-profit, 100% volunteer community mediation program. The wealthy used private mediators. The HKMC developed the "Mediation First Pledge" which has now been endorsed by 100 national and international companies. Once signing the pledge, the company and employee must mediate prior to filing suit.

6- Singapore Mediation Center-
The Singapore Mediation Center is part of the Court system. They have found that the Harvard “facilitative mediation model” is not as effective in Asia. They want mediators to be more directive, suggestive, and helpful. The mediator should demonstrate authority, have credentials, and grey hair is a plus. They want suggestive but not forceful mediators. Conducting the mediations within the formality of the Court is assistive. Face saving is a very important part of mediation. For instance, maybe the parties do not want to start by making a suggestion to resolve the matter. Instead, this can come from the mediator which helps save face for the party. Private sessions are used more than joint session to save face.

Day Two:

On day two, we had breakout sessions, where one could choose from four different session tracks or a combination of the tracks. The tracks sessions were titled; Sector Specific, Law and Mediation, Aspects of International Mediation and Mediation Skills and Practice. The decisions as to which session to attend was difficult because there were so many qualified speakers.

The first session I attended was titled, "Mediation in the Halls of Justice; Examining the Singapore Model of Mediation in Subordinate Courts." Senior District Judge Tan Siong Thye was the moderator. He told me after the session, that there is no mandatory mediation in Singapore. Most cases are transferred to the SMC regarding commercial disputes. Personal injury cases are not transferred. He indicated that private mediation is viable.

During this session, and many others, California was referenced as the leader in ADR (Alternate Dispute Resolution) innovation. Historically, we were advised, that ADR started in the 1970's in American. It moved to other countries based upon the successful American model because of the extreme backlog of cases. In Asia, mediation had been conducted for centuries, through elders, religious and village leaders to resolve disputes. However, this model changed as mediation began to be supported by the courts, and therefore the government -with funds- to help clear the trial court dockets.

In 1998, the Singapore government backed the Singapore Mediation Center intuitive. The similarities with the Singapore and U.S. mediation models are the dissatisfaction with litigation, active case management by the courts to relieve backlog of cases, and both mediation fields are well developed. The difference between the two systems is that in Singapore mediation is state driven. In the U.S. mediation is grass roots with a mix of courts and the private sector.

Singapore is moving more towards a hybrid model of mediation, to use judges and court employees and the private sector. They are presently using volunteer mediators and mediators are paid a small sum.

In Singapore, mediation is not mandatory, but to save face, judges will encourage the parties to opt-in to mediation. If a party shows openness to negotiate, and therefore be the first to suggest mediation, it is shown as a sign of weakness.

We then heard a presentation by Her Honor, Nimfa Cuesta Vilches of the Philippines. Her area is family law. The family law mediation program in the Philippines was started in 2007 and is used in 256 courts on 59% of the cases or 80,000 cases. The success rate is 82%.

In the Philippines, the Asian family is defined as parents, spouses, siblings, grandparents, and in-laws. In fact, if the parents die, a house cannot be sold for up to 10 years if a member of the family lived there prior to the death of the parents. In the Philippines, divorce is not recognized by the courts. However, the Philippines will honor a divorce decree from a foreign jurisdiction under the Hague Convention.

If a child is under 7 years old, custody is always given to the mother. However, the father is entitled to visitation rights. If there is violence during the mediation process in the family unit, then the case is returned to the courts. Mediators often use gifts of flowers or candy for the children.

Under the Philippine Code, if an Uncle pays child support on behalf of a father, then the uncle is entitled to be reimbursed for his payments.

The next session, was presented by a very dynamic instructor, Dr. John Ng, titled, "Give Face, Lose Face... The Impact of "Facework' In Mediation." Dr. Ng encouraged us to use PDR, Primary Dispute Resolution, instead of ADR. Face is in all cultures. Face is inside of you. Asians do not say "No" directly as the logical, linear West is oft to respond with. Face can be achieved by conversations, behaviors and direction. One looses Face because of being shamed.

We have the psychological image of Face inside of us. Relationships are 90% of Face in Asia. Face image is defined by the relationships in a particular setting. In the West, Face is more individualistic-- ego and pride.

Face in Asia is not how I look to me, but how I look to the village, the community, the family, business relationships.

We then discussed the four aspects of Face:

1. Positive v. Negative:
Positive is to be included, not excluded. To be excluded is more powerful than inclusion. The negative is the need for freedom or privacy.

2. Self or others: (who's face serving)
Self- Orientation towards self.
Other- Orientation towards others giving grudging concern.
If parties mediate in a cooperative environment, 80% success. If mediation is conducted in a competitive environment, there is a much lesser success rate.

3. Self Face:
Face restoration. Face saving. Here, the concern about one’s own Face. As mediators, acknowledge/show concern for others Face, neutralize and then move on. Do not show Face acknowledgment for one party but not the other.

4. Face Assertion:
A party wants to be included, needs to protect ones need for inclusion.

The implications of Face in mediation are important. In the opening, be impartial, give equal limited time to the parties, use positive voice, positive behaviors, and positive feelings. Face saving is done by confidential caucus, mutualization.

The next session I attended was Cross-Cultural, "The Used of Mediations as Part of the 'Filter' Process in Cross-Border Disputes." This lecture addressed the question of the coexistence of mediation and arbitration. The Singapore Arbitration Center will take an arbitration assignment, then the parties can mediate, and if not successful, they will arbitrate. So a mediator and arbitrator are appointed in the first instance of assignment to arbitration.

There was also discussion of a joint mediation arbitration hearing. However, great caution was given to this proceeding, especially, if the arbitrator was asked to be a mediator and then went back to arbitrating the matter once the mediation was not successful. This type of hearing would violate the New York Convention on Arbitration which has been ratified by 144 countries. It may also violate Singapore mediation and arbitration laws.

We discuss that if the mediation and arbitration are combined, it is a very delicate hearing, where the parties need to be expressly agreed in writing prior to the hearing to the combined proceeding and that all of the pre-arbitration discovery and exchange/disclosure procedures apply. We also discussed whether when performing a “medi-arb”, the neutral has to be directive and not hold things in confidence unless expressly asked.

The last session I attended, was titled, "Promoting Mediation As An Alternative Dispute Resolution Process to Resolve Community & Social Disputes- a Singapore Perspective." In Singapore, the government spearheaded and funds the facilities and civil servants to administer the Community Mediation Program (CMP). However, the mediators are volunteers who come from respected positions in the community. The volunteer position is for 2 years. Then it can be renewed. The CMP presently have 1 Senior Mediator, 69 Master Mediators (more than two years of experience), 62 mediators, and 132 grass roots volunteers.

They use the co-mediators model. Of the 4,101 community mediated cases, they have had a 75% success rate. The issues mediated involve 2% Landlord Tenant; 9% Friends, 55% Neighbors (Singapore is a high rise apartment living state - so issues such as common corridor obstruction are disputed). They do not mediate commercial or matters that need expert knowledge.

We also heard from a very brave man discussing mediation in mainland China (MC). The MC model of mediation is the People's Community Mediation or PCM. This mediation model has been used in MC for decades. Modern mediation is not trusted or accepted by the people or government.

PCM has the institutional aspect of rigid control and lack of support. Practically, it lacks training and qualified mediators. It is also unable to respond to the cultural changes of the times. In MC, social reform did not follow in the economic reform. We were told that there is a resistance to embracing Western mediation and to social change.

The speaker advised, that there is a reform approach need for sustainable mediation development. For instance, in 2008, during the Si Chun earthquake, the mediators in Ping Zhou town had to act as mediator, messenger, surveyor and public opinion monitor. In other towns hit by the earthquake the mediator had different tasks.

The other sessions were more in-depth discussion on mediation in India and the Philippines.

In conclusion, a representative of IMI (International Mediation Institute) gave a paper on the seven things the IMI believes is needed for international mediation.

1. Qualifications- certification and regulation.
2. Understanding.
3. Acceptance -cultures will not accept mediation until they understand it.
4. Leadership.
5. Transparency- credibility, share knowledge (have videos of mediations conducted on the web).
6. Inspiration.
7. Yardsicks.

All in all, the AMA and SMC hosted a wonderfully hospitable, diverse and educational experience. The next conference will be held in Malaysia in Feb of 2011. The Malaysian Mediation Center will be hard pressed to match the excellent coordination, diversity, and hospitality of this conference.

I am looking forward to the responses to the MBB discussions I had with many people from around Asia. Thank you.