International Commercial Mediation

by Chern,Cyril

• ISBN13: 9781843117599
• ISBN10: 1843117592
• Edition: 1st
• Format: Hardcover
• Copyright: 2008-07-30
• Publisher: Informa Law fro

Summary

"Mediation as a method of dispute resolution is well known and practised worldwide, yet very little is written about exactly how to mediate, what forms should be used and what techniques can be applied by the mediator to obtain a successful result. More particularly, very little has been written on how to deal with large, complex international commercial disputes and their effective administration. This book provides the knowledge necessary for those actively involved in mediation work as well as for those who need to learn the process."--BOOK JACKET.

Table of Contents

Preface	p. v
Acknowledgements	p. vii
About the Author	p. xv
Table of Cases	p. xvii
Table of Legislation	p. xix
Mediation from an Historic Perspective
Historical Background	p. 1
Ancient Cultures	p. 2
Early China	p. 2
Qing Dynasty-three steps of mediation	p. 4
The First Step	p. 4
The Second Step	p. 5
The Third Step	p. 5
USA	p. 5
Change of Direction	p. 6
United Kingdom	p. 7
Islamic Tradition	p. 9
Global Reach	p. 11
The Development of Commercial Mediation in the United Kingdom
Woolf Reforms	p. 13
CPR Rules	p. 14
Mediation	p. 14
Building and Construction Disputes	p. 15
Halsey	p. 15
Failure to Mediate Justified	p. 16
Limited Circumstances	p. 20
Enforcing Mediation	p. 21
Contracted Mediation in Construction	p. 22
New Developments in Mediation
Dispute Advisory Boards	p. 25
Difference between Dispute Boards and Mediation Boards	p. 26
FIDIC and International Mediation	p. 27
Amicable Settlement	p. 28
International Commercial Mediation	p. 29
Background and Rationale	p. 29
Typical Mediation Clauses	p. 30
Sample Mediation Provision 1	p. 30
Sample Mediation Provision 2	p. 30
Sample Mediation Provision 3	p. 31
Sample Mediation Provision 4	p. 31
Sample Mediation Provision 5	p. 31
Sample Mediation Provision 6	p. 31
Mediation Processing
Initial Party Interview	p. 33
Party Forms and Questionnaires	p. 34
Confidential Mediation Questionnaire	p. 34
Dispute Clarification Questionnaire	p. 37
Disclosure Forms	p. 38
Mediator Disclosure Questionnaire	p. 38
Mediator Disclosure Statement	p. 44
Mediator Agreements	p. 44
Simplified Two-Party Mediation Agreement	p. 45
Complex Mediation Agreement	p. 47
Mediation Agreement Involving Companies	p. 50
Mediation Agreements in Complex Commercial Cases	p. 52
Pre-Mediation Disclosure	p. 54
Participants at the Mediation	p. 55
Independent Experts	p. 56
Special Situations	p. 57
Three-Party Mediation	p. 57
Three-Party Mediation Agreement	p. 58
Mediation Clauses for Construction Contracts	p. 60
General Contractor and Sub-contractor Mediation Clauses for Construction Contracts	p. 60
Owner and General Contractor Form Clauses	p. 60
Owner and Professional Consultant Clauses (Architect, Engineer, Quantity Surveyor)	p. 61
The Mediator's Pre-Mediation Information and Dispute Assessment	p. 61
The Benefits of Early Dispute Assessment	p. 62
Fact Assessment	p. 62
Costs	p. 63
Ready for Mediation	p. 64
Statements of Case and Sample Forms	p. 64
Witnesses and Witness Statements	p. 66
Witness Statements-Guideline	p. 66
What Witness Statements Should Contain	p. 67
Statements by Experts	p. 67
Format of Witness Statements	p. 67
Witness Outlines	p. 67
Form Agendas, Scheduling Formats and Sample Forms	p. 68
Sample Mediation Agenda 1	p. 68
Sample Mediation Agenda 2	p. 69
Sample Mediation Agenda 3	p. 70
Structured Mediation Boards	p. 71
Sample Dispute Letter	p. 71
Referral	p. 72
Sample Mediation Referral Document	p. 73
Complex Dispute Mediation	p. 80
The Initial Meeting
Initial Party Meeting-Taking Control	p. 81
Checklists	p. 82
Sequence of Events-Rules and Procedures for the parties	p. 83
Mediator's Compensation Agreements	p. 84
Sample Mediator Agreement 1	p. 85
Sample Mediator Agreement 2	p. 86
Mediation Fee Schedule	p. 88
Mediator Fees	p. 90
Mediation Rates	p. 90
Long-Term Construction Dispute Mediation Rates	p. 90
General International Commercial Rates	p. 91
Special Rates	p. 91
Additional Fees and Costs Charged	p. 91
Mediation Commencement Issues
Mediator's Initial Welcoming Role	p. 93
Seating	p. 94
Introductions, Opening Remarks and Samples	p. 94
Opening Presentations	p. 95
Private Sessions	p. 96
Oaths and Their Use in Mediation	p. 97
Sample Mediator Oath 1	p. 97
Sample Mediator Oath 2	p. 98
Party Oaths	p. 99
Setting Out a Timetable	p. 100
Reaching Agreement on Timing and Party/Agent Involvement	p. 101
Representatives	p. 102
Devil's Advocate v Lone Dissenter	p. 103
Mediator's Role	p. 103
Dealing with Hostility and/or Refusal to Cooperate	p. 105
Competition or Cooperation	p. 106
Refusal to Cooperate	p. 107
Use the Mediator's Power	p. 107
Approaching a Competitive Opponent	p. 108
Opening Presentations: Be Firm But Pleasant	p. 108
Let the Client Tell the Story	p. 108
Use the Mediator in the Initial Private Meeting	p. 109
Consider the Advantages and Disadvantages of Having the Mediator Evaluate the Case	p. 109
Understanding the Intermediate Steps Between Identifying the Issues and the Final Settlement	p. 110
Is the Mediator Giving You Any Clues?	p. 111
Set Your Timing for Any Exchange of Information	p. 111
Committing the Other Side to Your Principles	p. 111
Deadlock-What Should the Mediator Do?	p. 112
Finding the Truth
The Mediator's Approach to Deception	p. 113
Concealing the Real Numbers	p. 115
Lack of Settlement Authority	p. 115
Inflated Demands	p. 116
Ethical Disclosure	p. 116
Risk of Being Caught	p. 117
Interpersonal Deception Theory	p. 118
Intentional Deception	p. 119
Leakage	p. 119
Deception Cues	p. 120
Information Management Cues	p. 121
Guidance	p. 121
Ethical Requirements for Representatives	p. 122
Preventing or Minimising Deception in Mediations	p. 122
Is it Deception or Lapse of Memory?	p. 124
Hindsight Bias	p. 125
Cognitive Interview Techniques	p. 126
Separating the Parties	p. 127
Mediation Styles
The Arguments for Different Forms of Mediation	p. 129
Facilitative Mediation	p. 130
History of Evaluative Mediation	p. 131
Lawyer-Driven Evaluative Mediation	p. 133
The Process	p. 134
Transformative Mediation	p. 135
Typical Patterns	p. 136
Which Method is Best?	p. 137
A Blended Approach	p. 138
Evaluative Facilitation	p. 139
Commercial Mediation Techniques
Pre-Dispute Mediations	p. 141
The Bangu Gorge Hydroelectric Facility	p. 141
Issues	p. 142
Settlement Authority	p. 143
Mediator's Technique-Facilitative Brokering	p. 143
Settlement	p. 144
Reality Check	p. 144
BATNA	p. 145
Not the Bottom Line	p. 146
Advance Preparation	p. 146
Determining Your BATNA	p. 147
Should You Reveal Your BATNA?	p. 148
BATNA and Beyond	p. 149
Determining Your BATNA	p. 150
BATNA and the Other Side	p. 151
BATNA and the Role of Mediators	p. 151
Other Techniques	p. 152
Labelling Technique	p. 152
Saying and/or Writing Yes	p. 153
Asking for Help	p. 154
Dealing with Weakness	p. 154
Giving Assignments-Why the Other Side Will Win	p. 155
Scheduling	p. 156
Sample Scott Schedule	p. 157
Differences	p. 160
Procedures, Proceedings and Checklists
Key Objective	p. 161
Minimising Stress	p. 162
Mediator Notebook	p. 163
Mediator's Opening	p. 164
Party Opening Statement	p. 165
Visual Presentations	p. 166
Time Frame	p. 167
Opening Statement Checklist	p. 167
Basic Ground Rules During Openings	p. 168
Private Sessions	p. 169
Checklist for Private Meetings	p. 170
Other Checklists	p. 172
Is Settlement Possible?	p. 172
Is Settlement Impossible?	p. 173
Options if No Settlement	p. 173
Settlement Checklist	p. 174
After the Mediation	p. 174
Reaching Agreement
The Settlement Agreement	p. 177
Writing a Settlement Agreement or Memorandum	p. 178
The Basics	p. 178
Recitals	p. 179
Settlement Agreement Checklist	p. 179
Sample Mediation Settlement Agreement	p. 181
Award on Settlement	p. 184
Sample Consent to Appointment of Mediator as Arbitrator	p. 186
The New York Convention	p. 187
Tomlin Orders	p. 189
Settlement and Tomlin Orders	p. 190
Mediator Ethics
Guidelines	p. 193
Dispute Board Federation Mediator Code of Ethics	p. 198
European Code of Conduct	p. 204
General Forms and Agreements
Sample Mediation Agreement-Sole Member	p. 209
Sample Mediation Agreement-Employer, Contractor, Mediator	p. 211
Sample Mediation Panel Agreement	p. 213
Sample Mediation Panel Disclosure Statement	p. 219
Sample Dispute Submission Timetable	p. 220
Sample Dispute Synopsis	p. 223
Grouping Documents	p. 225
Sample Grouping Document	p. 225
Legal Issues in Mediation
Mediator's Liability	p. 227
Liability in Contract	p. 227
Liability in Tort	p. 227
Breach of Codes of Conduct	p. 228
Liability for Breach of Fiduciary Obligations	p. 228
When Lawyers Act as Mediators	p. 229
Mediator Immunity	p. 229
The American View on Mediator Immunity	p. 230
General Mediator Liability	p. 232
Confidentiality	p. 234
Uniform Mediation Act	p. 235
Additional Mediation Forms and Agreements
Agreements to Mediate	p. 241
Sample 1-Appointing Body Mediation Agreement	p. 241
Sample 2-Appointing Body Mediation Agreement	p. 244
Sample 3-Appointing Body Mediation Agreement for Companies	p. 247
Sample 4-Mediation Agreement by Counsel for the Parties	p. 249
Sample 5-Administered Mediation Agreement	p. 251
Sample 6-Combined Fee Schedule and Mediation Agreement	p. 255
Sample 7-Letter Format Mediation Agreement	p. 257
Index	p. 259
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