The new decade started well for mediation. In its Report entitled The Year Ahead: Developments in Global Litigation and Arbitration in 2020, Baker McKenzie ranked the increased use of mediation #3 of the ten big themes set to emerge in 2020, taking the view that “mediation is gaining traction around the world”[ii]. This follows a year 2019 that was already flamboyant in the history of mediation with the signature of the Singapore Convention on Mediation[iii] and numerous events at national level. An important one in France, for example, was the release of a special report on mediation by the Club des Juristes, one of the most influential legal think tanks in Europe[iv].
These developments are obviously positive, but mediating is still generally viewed as an activity rather than a profession. Mediation is not a stand-alone field of study at university level and mediation practitioners come from diverse professional backgrounds. The fact that mediation is open to persons with a large variety of skills (psychology, sociology, commercial, legal, etc.) should offer a tremendous competitive advantage, yet this rich patchwork of expertise may represent a challenge in professional harmonization. Additionally, numerous mediators rely more on the expertise gained over the span of their career in other fields of practice to assert their credentials in mediation, than on a dedicated and formalized mediation professional path. It appears therefore that further continuous improvement initiatives are needed to ensure that mediating is widely respected as a true professional practice in its own right.
Mediation training and education
Among these initiatives, the development and recognition of mediation as a stand-alone curriculum at universities is critical. The creation over the years of dedicated Masters’ degrees in international arbitration around the world at renowned law schools, backed-up by prestigious arbitration competitions, represents scientific and doctrinal strength that can only boost the visibility of arbitration as a professional practice. It would be welcome to see a similar global proliferation of academic programs in the mediation field, whether at Bachelor or Master level. Since mediating is not exclusively a legal field, the expansion of these programs can be conceived not only at law schools but at any other relevant faculty, thereby potentially multiplying the academic opportunities. As to competitions, we can only commend the existing initiatives towards organizing mediation advocacy competitions, such as the ICC Mediation Competition, the IBA-VIAC Mediation and Negotiation Competition and the mediation competition of the Singapore International Mediation Institute. More such mediation competitions are emerging and these events are important because they build a professional community of mediators and advisers skilled at representing clients in mediation.
Demonstrating high mediator practice standards
Beyond training, the work towards universally accepted and recognized certification standards must continue. This means that certification methods and requirements must be sufficiently rigorous to ensure a minimum consistency in professional skills at national and international levels. At the same time, certification processes need to consider the different steps in a mediation career, differentiating between the certification of highly experienced mediators and those who are at an earlier phase in their career while having nevertheless gathered the relevant knowledge. This is a key mission of the International Mediation Institute[v] (IMI). By driving transparency and standards into mediation practice, including the certification of mediation training programs, IMI promotes harmonized rules of accreditation for mediators. This is vital to achieve uniform and universally accepted mediation standards and recognition of mediation as a free-standing profession.
Mediator codes of professional conduct
Another important evolution to establish mediating as a true professional practice is the inculcation of robust codes of professional ethics for mediators. This is essential because any profession wishing to gain recognition and respect must have a robust code of good conduct in place. In the context of the Singapore Convention on Mediation, this is fundamental, since article 5.1 (e) provides that a competent authority can refuse the enforcement of a settlement arising from mediation if: “There was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement”. Article 5.1 (f) adds another similar ground for refusing enforcement if there are “justifiable doubts as to the mediator’s impartiality or independence”. The identification and knowledge of these applicable standards, as well as the definitions of “impartiality” and “independence”, will therefore become more relevant than ever. The IMI Code of Professional Conduct is useful guidance in this respect[vi], as is the European Code of Conduct for Mediators[vii], in order to establish standards of independence and impartiality for mediators. Provisions dealing with mediation in the codes of conduct of other professions can also help. For example, the report on mediation of the Club des Juristes mentioned earlier recommends the need to amend the rules of the legal profession to make it compulsory for attorneys, as a matter of sound deontology, to inform their clients on mediation.
Finally, comprehensive codes of professional ethics for mediators have another critical value: they set the groundwork for disciplinary processes. This will require the highest focus if we are to establish mediating as a truly recognized professional practice. Codes of good conduct have limited value if their implementation is not monitored and enforced. This is not easy, since disciplinary processes require fairness and consistency to be credible and well accepted[viii]. In addition, there will be a need to determine whether these processes should be best handled through some form of national or international regulatory body, or be tied to the certification process and managed directly by certification institutions. It is therefore another area of mediation where international harmonization will be needed.
Capitalizing on progress
Substantial conceptual progress has been made over the years to establish mediation as a credible, efficient, alternative to litigation and arbitration. Most recently, the Covid-19 pandemic has brought severe disruption and triggered new challenges for mediation. It has forced the mediators’ community to increase use of digitalization and online mediation tools. The traditional flexibility of mediation and its distance from traditional dispute resolution should facilitate this inevitable evolution.
If we are collectively able to establish mediating as a true profession, perceived as such by disputants and advisers worldwide, we will pave the way to an unprecedented phase in mediation’s development. This requires strong, collaborative leadership by the field’s most prominent service providers, skills trainers and dispute resolution practitioners worldwide, supported by the active engagement of academic and professional institutions, leading law firms and litigation funders, corporate and other users and Governments.
The international infrastructure is in place. All the mediation field needs now is to harness its exceptional skills, drive and dedication to achieve this vital goal.
Pierrick Le Goff[i]
[i] Pierrick Le Goff is a partner at De Gaulle Fleurance & Associés in Paris, prior to which he was Group General Counsel of Alstom, a French multinational corporation. Pierrick serves as an Affiliate Professor at Sciences Po Law School in Paris and is a member of the Board of Directors of the International Mediation Institute (IMI). He has been involved in numerous mediations throughout his career. He focuses his practice and academic activities mainly on international arbitration, construction projects and compliance. He is a member of the ICC Commission on Arbitration and ADR, the Swiss Arbitration Association (ASA), the ICC Governing Body for Dispute Resolution Services and the ICC Task Force “Addressing Issues of Corruption in International Arbitration”.
[ii] See: “The Year Ahead: Development in Global Litigation and Arbitration in 2020”, Baker McKenzie, 7 January 2020.
[iii] United Nations Convention on International Settlement Agreements Resulting from Mediation, signed in Singapore on 7 August 2019.
Originally published via Mediate.com on June 26 2020. Republished with permission.