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Approaches to Mediation Regulation

Approaches to Mediation Regulation

How should governments approach mediation regulation?

 

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Well, I start first with the idea that you can’t not regulate. So nothing’s in a regulatory vacuum. Effectively everything is regulated anyway, but the question is do we want to design our preferred type of regulation? Or do we just want to leave it to the marketplace, private contract, general principles of law, including contract law, and precedents set by courts?

 

There’s a growing body of law in England and in other places that now espouse the law on confidentiality and admissibility of mediation evidence. So that regulation is happening. As soon as you enter into an agreement to mediate you’re binding yourselves to the terms of that contract and that can be interpreted by a court, if it ever gets to that.

 

I think one of the interesting things is when I’ve been to England, and I don’t get to England a lot. But I get a very strong sense of, ‘We don’t want to be regulated. We want to be this free market-oriented field’. And yet there’s regulation everywhere. And what we see in England and also in the U.S. but in a different way is, I think, attempts to develop some national or uniform standards and uniform regulatory measures, particularly in areas around confidentiality, enforceability as well as questions of quality standards, professionalisation standards. But it’s been so long since the field began to emerge that people really have developed very vested interests in their own systems. And that makes it very hard, not impossible, but it makes it very hard to move forward.

 

You see, for example, in a lot of European countries, that it’s much easier. I mean, they start with a civil law mind set, which is a little bit different, which is ‘Let’s get ourselves organised and then go and do it.’ Whereas the common law mindset is ‘Let’s do it and if we like it let’s think about whether we want to put any regulatory measures in place.’ And it’s much easier to start with uniform systems earlier on than later. And many of the countries in Europe or elsewhere who have come to mediation later than let’s say Australia, U.S.A., Canada and England. Let’s just say there was a lot happening there in the ’80s or early ’90s, and some countries came ten or twenty years later. It’s not that they’re ten or twenty years behind, they’re actually learning an enormous amount from what’s been happening or not happening in those early jurisdictions. And some of them are very cleverly learning from the mistakes, and picking out the cherries, and putting together some useful pieces.

 

I wonder sometimes about this resistance to regulation, because I think again people are lumping mediation into one pot. I think when you’re talking about rights and obligations most people would agree you need to know where you stand about admissibility in mediation evidence. You need to know where you stand about how enforceable and how will my mediated settlement be enforced if push comes to shove. Those sorts of things need some clear regulation about.

 

In the mediation room, I think we have a lot more flexibility, we regulate that in a different way, using a lot of soft law, using industry standards or private contracts, have some guidelines, have lots of opt-out. Triggering, I think you need to have really well designed triggers coming in mediation at every level. Right? Lawyers often just think of the litigation field, which is one mediation marketplace. But there are many mediation marketplaces, and some of them much bigger than the legal marketplace. I’m going to stop and let you ask your questions.

About the mediator

Nadja Alexander is an award winning author and educator (2011, 2007, 1997) and a conflict intervention professional. She holds professorial appointments Australia and the United States and has taught mediation at universities and in corporate settings all over the world. Nadja is an independent adviser on mediation policy to national governments and international bodies, such as the World Bank Group. She has been engaged in the field of confl... View Mediator