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.
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