Teaching Comparative Perspectives in Mediation: Some Preliminary Reflections
Nolan-Haley, Jacqueline, St. John's Law Review
Mediation is no longer the stepchild of international dispute resolution practice. Scholars and practitioners recognize its enormous potential as a confidential, cost-saving, time-saving, relationship-enhancing process that gives control over disputes to the affected parties and often results in greater levels of satisfaction than litigation. Whether its appeal has peaked because of growing disenchantment with commercial arbitration or the perception that international arbitration has become like U.S. litigation,1 mediation is beginning to blossom on the international dispute resolution landscape.
The growing interest in mediation at the international level is reflected in numerous international and regional organizations, laws and protocols. Notable examples include organizations such as the Commercial Arbitration and Mediation Centre of the Americas ("CAMCA"),2 the CPR International Institute for Conflict Prevention & Resolution,3 and the International Chamber of Commerce ("ICC") that offer rules and procedures to resolve private commercial disputes through mediation. The World Trade Organization's ("WTO") dispute settlement system offers mediation as one method of resolving trade disputes between members.4 And, a primary example of legislation is the Model Law on International Commercial Conciliation that was developed by the United Nations Commission on International Trade Law ("UNCITRAL").5 The Model Law, which was recommended by the United Nations for adoption by member states in 2002, suggests an international consensus on the value of mediation as a mainstream method of resolving disputes.6
While mediation programs are developing rapidly across the globe, given the transatlantic focus of this conferenceTransatlantic Perspectives on ADR-and its London location, it is useful to consider some recent examples of mediation's growth in Europe. In 2002, the European Commission issued a Green Paper that identified ADR as a "political priority" for all "European Union institutions, whose task it is to promote these alternative techniques, to ensure an environment propitious to their development and to do what it can to guarantee quality."7 The purpose of the paper was to encourage use of ADR as a means of increasing access to justice in cross-border disputes.8 The paper initiated a wide-spread consultation with Member States and interested parties on possible measures to promote the use of mediation.9
Following positive responses to the Green Paper, the Commission of the European Communities issued a proposal for a Directive on mediation in civil and commercial matters in October 2004.10 The proposed EU Directive focuses on crossborder disputes and was intended to further the EU goal of increasing access to justice by providing private parties and businesses with an additional mechanism for resolving disputes.11 It was intended to promote the use of mediation in the EU without making it mandatory.12
Finally, a Mediator Code of Conduct was developed by the European Commission and finalized in July 2004.13 The Code sets out a number of principles such as informed consent and impartiality,14 and covers important mediator practice areas such as fees and advertising.15 It demonstrates not only a commitment to using mediation but to practicing it with high standards of professional integrity.16
I. WHY TEACH COMPARATIVE PERSPECTIVES IN MEDIATION?
The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education.17 National legal traditions have responded differently to the implementation of mediation. …