Court-Based Mediation- Expanding Access to Justice in Developing Societies

Lynn Cole
August 11, 2009 — 1,185 views  
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Court-based mediation, as a societal tool giving greater access to justice, is rapidly-growing worldwide. In the Middle East, Jordan leads Arab countries in establishing the first and expanded court pilot mediation programs in Amman.  In Southeastern Europe, mediation programs are comfortably ensconced and developing in a number of countries. Bulgaria has an active and comprehensive system of mediation centers aligned with regional courts. Likewise in Latin America, mediation programs have been implemented in a number of different judicial contexts.

II. How Rule of Law programs generally work with the judiciary and how mediation fits into strengthening the judiciary.

A. Mediation in conjunction with judicial Rule of Law programs is generally associated with the following principals.

1. Increased access to justice.

Increased access to justice is one of the fundamental conditions for the establishment of the rule of law. These programs generally involve ongoing international conflict mitigation efforts by working to improve the functioning of and accessibility to the justice system.

In the past, the right of access to judicial protection meant, essentially and almost exclusively, the aggrieved individual's formal right to litigate or defend a claim, defined in strictly legal terms. Mediation presents a broader view of what is going on behind such claims opens new pathways to resolving disputes, relieving the overcrowding that makes court cases unnecessarily slow.

In particular, ADR processes are of significant importance to justice systems when effective establishment of alternative means of dispute resolution can significantly reduce the number of minor disputes before the civil courts, helping to improve the availability of judges for cases which must be tried.

2. Strengthening the judiciary

Generally, justice sector reform programs seek to strengthen the ability of the court system to deliver services in a more transparent, independent and accountable way. All too often, in countries with developing judiciaries or in post conflict countries, much of the population experiences the law only as an obstacle. The law, and the costs associated with using the legal system, can make it difficult or impossible to run a legitimate business, to secure redress for exploitation by the powerful, or even to participate as a full member of the community. Societies with a large segment of poor communities may only experience law and law enforcement as instruments of repression. But law can be a source of opportunities - for expanding access to economic benefits, for ensuring government accountability, and even for effecting broader social change.

Mediation as an adjunct to the judicial system works to instill confidence in the legal framework because is a proven mechanism which promotes economic benefits and a business environment, increases governmental accountability and effects broader social change for dealing with disputes in a non-adversarial forum.

3. Judicial Reform

Judicial reform likewise plays a central role in rule of law promotion efforts. These programs seek to promote a judiciary that functions with principles of modern court administration and case management, increased transparency, better qualified staff, and increased public confidence.

Programmatic assistance includes establishing legal frameworks for judicial independence, building judicial associations, promoting education and training of judges, strengthening court administration, improving judicial ethics and accountability, and increasing public outreach and media skills. Mediation is the adjunct to all of these.

B. Major mediation government proponents and funders [1]

Governmental agencies and entities provide the greatest impetus the development of court-based mediation.

1. USAID (United States Agency for International Development)

The agency works in 100 developing countries and in close partnership with private voluntary organizations, indigenous groups, universities, American businesses, international organizations, other governments, trade and professional associations, faith-based organizations, and other U.S. government agencies. USAID has working relationships, through contracts and grant agreements, with more than 3,500 companies and over 300 U.S.-based private voluntary organizations.  Under its general framework of Democracy and Governance, USAID has become one of the leading governmental funders of justice sector reform programs, including mediation.

2. European Commission

The Commission awards money in the form of grants to NGOs in order to implement projects or activities in relation to European Union policies. These grants may be awarded within fields as diverse as research, education, health, consumer protection, protection of the environment, humanitarian aid, etc.  A European Union directive on mediation of certain aspects in civil and commercial matters was passed in 2008 with the objective of facilitating the amicable settlement of disputes among Europeans. The scope of the mediation directive is limited to cross-border disputes. More specifically, it applies to disputes in which at least one of the parties is domiciled or habitually resident of a member state other than that of the other parties at the time the mediation is agreed upon.  As an example of mediation funding, in December 2008, the EU granted €1Million to the Philippines, a grant which includes a component on mediation.

3. UNFP ("United Nations Development Program")

Most work of UNDP's work is with community mediation centers and humanitarian needs. However, they also provide funding for court. See, e.g. UNDP court related mediation project in Nepal.\. Ex. UNDP Serbia

UNDP's Mediation Support Unit
Established in 2006, UNDP's specialized Mediation Support Unit (MSU) serves as a central repository for peacemaking experience and a clearing house for lessons learned and best practices. The Unit also coordinates training for mediators and provides them with advice on UN standards and operating procedures.  Its establishment in 2006 was one of the recommendations of the Secretary-General's High-Level Panel on Threats, Challenges and Change (2004)

UNDP's Mediation Support Standby Team
Established in early 2008, it is a five person expert team that can be deployed on short notice to assist UN and non-UN mediation efforts around the world. Their expertise covers a range of issues that arise frequently in peace talks - from mediation strategy to security arrangements, transitional justice and human rights, power-sharing and constitution-making. 

4. IFC (International Finance Corporation) of the World Bank

The International Finance Corporation, the private sector arm of the World Bank Group, promotes sustainable private-sector investment in developing and transition countries. IFC finances private sector investments, mobilizes capital in the international financial markets, helps clients improve social and environmental sustainability, and provides technical assistance and advice to governments and businesses. Its 178 member countries provide its share capital and collectively determine its policies.

The IFC views commercial litigation as a potentially unavoidable consequence of growth for new businesses.  It sees  expensive, time-consuming court proceedings as an increasing burden to small and medium enterprises. Thus, it is has helping to establish court related mediation programs. [2]  Formally launched in 2005 for an initial period of five years, it is currently operating the Alternative Dispute Resolution Program which includes establishing mediation centers.  It has worked to develop two mediation models suited to the legal framework and the court administration processes of specific countries in Southeastern Europe. In Bosnia and Herzegovina and in Macedonia, the IFC helped create a "court referred model". In Serbia, it has worked to develop the "court annexed model."

III. An Over-view of Court-Based Model: Court-Annexed compared with Court-Referred Mediation. [3]


A. Judges as mediators.

One of the most frequently debated issues associated with the Court-based mediation is whether or not active judges should mediate cases.  A judge acting as a mediator must use a different skill set and carefully distinguish his or her role.  For the most part, judges act as mediators in the court-annexed model.  For an anecdotal discussion of court based mediation in the federal system and in some foreign countries, please refer to Attachment 1.

B. The Court-Annexed Model

1. Country examples: Jordan, Serbia, Philippines, Argentina

2. Definition and Characteristics

The Court-annexed model for mediation is a mediation system that interacts interdependently with and is often a part of the court system.  When this type of court based mediation is enacted into law, and the law normally will explicitly describe its use within (and often external to) the judicial system. Often, judges are permitted or expressly mandated to mediate.  Usually, when this model is implemented, it is entwined within a case management system.  As such, when a case is first brought or first is directed to a case management conference, the judge, normally a case management judge, will explain what mediation is to the parties and will offer mediation as an alternative to continuing with the litigation.  In the event that the parties choose to use court mediation, within the case management system, the case may be directed to one of a number of qualified and trained mediation judges who usually have been appointed by the chief judge of that court.  The case management judge may set dates for assignment and completion of the mediation. Should the parties wish to have a private mediator and the law permits a private mediator, the mediation can still be conducted within the purview of the court mediation program and the fees charged by mediators will be regulated. The mediation center may actually be physically within or attached to the courthouse.

The Ministry of Justice most likely will be actively involved in most features of the program.  Often the Ministry of Justice is wholly, if not in large part, responsible for the judiciary.  As such, it exerts control over judicial management and budgetary matters, thus impacting the mediation program's allocation of expenses, numbers of mediators, educational and procedural requirements, and oversight and ethical issues related to mediators.  In almost all circumstances, the mediation law will provide for the essential indicia of mediation:  confidentiality and voluntariness.                                                                                                                                                                                                                                                   3. Some Advantages

● All three actors in the judicial system- judges, attorneys and litigants- gain a sense of participation in the settlement outcome;

● The attorneys in the case retain the case file and continue to represent their clients before the mediator;

● Litigants play a critical role in the resolution of their cases;         

● Courts work more closely and have greater interaction with stakeholders: justice ministries, state institutions, associations, chambers of commerce, bar associations, developmental agencies, international organizations, and individuals;

● The court becomes the sustainable institution for developing and expanding the mediation program;

● The judiciary supervises and integrates the mediation program into its internal systems;

● Mediation becomes a component of judicial training received by all new judges;

● Mediation services become the familiar public corollary to dispensing justice, with mediation complementary and not competitive with the judicial system;

● Frees judges to handle more complex cases requiring extended judicial management;

● May facilitate movement between cases and mediation faster;

● Judges within the system gain a sense that it is involved in reducing its case load voluntarily, and thus, referrals to mediation are done more willingly.

3. Some Disadvantages

● The court stagnates as the central institution in the system and fails to expand into the private sector;

● Parties may tend to be intimidated by judges and expect the judge to offer the solution to the dispute;          

● Lack of competiveness;        

● Often the mediation program is run by the executive branch, the Ministry of Justice which can be:  plagued by a high turnover of appointments and personnel; is heavily bureaucratic in nature and operations; personnel handling mediation do not understand or care about mediation;

● Parties with a judge mediator may tend to be less candid;

● A corrupt judiciary may also corrupt the mediation process;

● The opportunity to select the mediator may be decreased; the mediator may be imposed  upon rather than selected by the parties;

● Without the presence of the parties at mediation, the process morphs into a judicial settlement conference.

C. Court-Related or Court-Referred Model

1. Country examples: Bahrain, Bulgaria, Bosnia and Herzegovina, Macedonia, Singapore[4]; Romania [5]

2. Definition and Characteristics

Probably approved by the Ministry of Justice, but is private in design and implementation. Independent mediation centers are allied with, but separate from, the courts. The court refers mediation to a mediation center or a mediator.  In this model, judges usually are not legally permitted to mediate a case.  Often, the mediation centers are economically stand-alone organizations created within a community by private mediators.  Usually, these mediation centers are located in the city housing a regional or higher court having jurisdiction over a number of lower level courts. The relation between the court and the mediation center with its trained mediators can be described as one of mutual convenience.

If the regional court or the referring court has accepted a mediation center, the court at some early phase of the case management may announce to the parties their option of mediating the case. If the parties accept, they are directed to the local mediation center, where they can choose a trained mediator. Thus, the mediation centers have a source of mediation referrals and the court has the advantage of having its dockets reduced when the mediation is successful. The Ministry of Justice, if it exercises oversight over the judiciary, will have an impact on the mediation program. In some manner, it will control who can practice as a mediator.

The court can participate by setting out educational and experience qualifications of mediators in the mediation centers where it refers the case. Normally, the Ministry of Justice ("MOJ") retains the procedures and rules for registration (often termed "certification") procedures. If that is the case, it may also be tasked with regulation of mediators in order to ensure that mediators are following its promulgated rules and regulations. 

The MOJ also may control financial issues impacting mediation, such as annual cost of registration of mediators.  However, in this model, mediation centers are usually responsible for their business functions, including budgetary and financial aspects.  In order to produce income, the mediation centers may charge a fee, a provision which may or may not be regulated by the Ministry of Justice or the Mediation Law. 

1. Some Advantages

● Enhances access for use by marginalized groups;

● Discretionary powers affecting the direction and increase in growth mediation is not within or limited by institutional control;

● May be offered on a for profit or not for profit basis;

● Fosters competitiveness conditions and interest in maintaining high-level reputation;

● Is more attuned to and local community and its mediation needs;

● Has the capabilities to expand quickly to meet additional needs;

● Has greater ability to expeditiously expand into other local arenas:  e.g. community and peer mediation

2. Some Disadvantages

● Inability or refusal to deal with disputants who cannot pay the market price;

● Less initial visibility and funding than court-annexed mediation;

● No concurrent advantages to judiciary such as improving case management;

● May struggle from initial financial limitations.

D. Making the choice: what court-based model to use

Development of a court based mediation system does not exist in a vacuum. It is important to appreciate the cultural context in which court based mediation programs begin to develop and the extent to which dominant cultural values influence its growth in any given country.  This overview does not attempt to treat cultural differences from a social psychologist's or scientist's perspective. There are many treatises that provide that type of detailed analysis. When co-designing a court mediation program, co-designer must acquaint himself or herself with the culturally-grounded expectations of the stakeholders in order to create a sustainable system within the society

1. Understanding indigenous cultural attitudes

Arab Cultures. Although Arab nations vastly differ substantially in history and culture, certain common general attitudes can be identified. For example, there is a clear need to fathom the deep cultural, social, and religious roots that underlie the way Arabs behave when it comes to conflict reduction and reconciliation. There is a paucity of information on this subject. What we do know is that the following elements are of great importance: the patrilineal families; the question of ethnicity; the relevance of identity; the nature of tribal and clan solidarity; the key role of patron-client relationships; and the salience of norms concerning honor and shame. See, Islamic Mediation Techniques for Middle East Conflicts, George E. Irani, Mediate.com, September 2000.

Mediation in Islamic societies, unlike traditional Western concepts of individualism, tends to frame conflicts as matters of communal and not just individual concern; it focuses on the importance of repairing and maintaining social relationships. Strong emphasis is placed on linkages between personal and group identity, between individual and collective responsibility for wrongdoings, and between attentiveness to ‘face'-related issues (public status, shame, reputation for generosity) and the achievement of restorative justice within a context of continuing relationship. Conflict resolution efforts are directed toward the maintenance of communal or inter-communal harmony. Cultural norms favor recognition of mutual rights and obligations, and uphold shared values by calling for public apology, compensation for losses and forgiveness.  [6] 

Jordan. In March 2006, the Mediation Law, Law No. 12, was enacted and the Minister of Justice sought immediately to implement the Mediation Pilot Program in the Court of Causation in Amman. The law provides for three classes of mediators: (1) judicial mediators; (2) private mediators; and (3) "special mediators."  The Special Mediators were expected to be former judges and ministers of the government. 

The concept of the Special Mediator derived from the ancient and revered Bedouin tribal custom of "wasata".  In accordance with wasata, in order to be selected to resolve a dispute, one must be held in great esteem for integrity and wisdom by the disputants.  Normally, this was the tribal elder. As such, the elder is entitled and, even expected, to express his opinions and to actively intervene and impose his will in the mediation or Wasata process.  The wasata tradition was imbued in Jordan's Mediation law through the concept of the Special Mediator.

Egypt. Although Egypt was a Middle East pioneer in private ADR by its creation 25 years ago of the Cairo Regional Centre for International Commercial Arbitration, it currently has no formal court-related mediation program.  In 2001, The Mediation & ADR Centre was established as a branch of the Cairo Regional Centre administer mediation and other peaceful non-binding means of avoiding and settling trade and investment disputes. Upon their request, the Centre provides the parties with legal advice and recommendations. A panel of legal experts and specialists assists the parties, according to the Centre's rules, to avoid potential disputes whether in the stage of concluding or performing the contract. Mediation is administered in accordance with the Rules of the Centre issued in 1990.

Examples of Asian cultural attitudes

Philippines. Philippine Mediation Center, launched in April 2001, promotes court-annexed mediation. It is generally believed that system functions better for Filipinos who are generally adverse to adversarial encounters by using more evaluative judicial mediators. See, www.asianlawassociation.org/papers/phil_chp 10 pdf         

Singapore. In Singapore, the directive and evaluative approach was adopted as it is believed that Singaporeans are less vocal in a formal setting. Given the foregoing, a greater degree of intervention is required in order to facilitate negotiations. The concept of "face" in an Asian context, the fear of losing face, can be a major obstacle to the settlement of a dispute. Another useful cultural perspective is the high value that Asian cultures place on the interests of the community. From SMC surveys conducted by the Singapore Mediation Center, indicators show that parties are more satisfied with a mediation process in which there is a high degree of mediator intervention. See, Non-Court Annexed Mediation in Singapore, Paper for the International Conference & Showcase on Judicial Reforms, Mr. Loong Seng Onn at http://jrn21.judiciary.gov.ph/forum_icsjr/ICSJRl

The Balkans. Even though the former Yugoslavian countries are post conflict countries, countries in this region are using mediation to improve judicial efficiency and promote democratic institutions of the rule of law.  The models vary between countries between court-annexed and court-related, but throughout these nations, mediation is improving the judicial systems and building a culture of compromise.  There is strong support for mediation in the region provided by the European Commission, the IFC and non-governmental NGOs.

Kosovo. Kosovo is the only country in the former Yugoslavia with a majority population that is not Slavic. After years as a United Nations Protectorate, it declared its independence from Serbia on 17 February 2008.  Kosovo is actively re-building its rule of law programs, especially its judiciary. 

Court related mediation can work well in Kosovo's current political and societal atmosphere.  First, however, the judiciary must overcome a public perception that it is too slow, lacking professional training, and vulnerable to corruption. Local and international actors also have expressed general suspicion of the judiciary and its capacity to resolve disputes fairly and effectively. 

To a population devastated by war a little over a decade ago, mediation's generally informal nature and facilitation by a neutral mediator may appear to be less intimidating and threatening.   It gives more control to the parties, increasing their self-reliance; it avoids the perception that one has to give control to a third party stranger in the dispute. In fact, this appears to be the underlying assumptions in Kosovo's new Mediation Law passed in November 2008.

Potential for conflict and civil unrest still exists, especially in the northern city of Mitrovica, the de facto capital of the Serbian enclave existing in northern Kosovo. However, mediation can be a highly effective tool in ethnic disputes. It easily can be more creatively and appropriately applied by skillful mediators rather than relying on general statues and limited or non-existent case law and potentially inconsistent decision-makers. Its use can assist in building a culture of compromise, rather than one of protest or violence. In short, mediation can assist in building the ethics of civil engagement.               

2. Historical use of mediation

If the society into which a court-based mediation is being integrated has a history of mediation, assimilation of the concept as used in court based mediation is facilitated by that history. Mediation is, historically and certainly, more ancient than the Anglo-Saxon adversarial system of law. So it is not the modern American concept of court based mediation which should be routinely super-imposed.  Rather, it is the blending of the historical use of mediation with modern day concepts.

▪ Legislation enacted in 1947 in India recognized the concept of mediation in industrial disputes; 

▪ in the 1400s, in the town of Plovdiv in Bulgaria, a city regulation required mediation; 

▪ in the centuries-old Bedouin tradition of wasata, used for centuries, the tribal elder worked with the disputing parties to reach a resolution.

3. Perception of judges and the legal system generally

How a society views its judiciary may determine whether or not court mediation is annexed or referred. Aversion to prior controlling political regime, such as communism, may impact whether or not society wants a mediation system less controlled by judges who were appointed by a prior unpopular government.

One such example is the country of Bulgaria, long dominated by the Ottomans. After a brief period of monarchial rule, subdued Bulgaria submitted to Communism. Most judges during that time period were appointed by the Communist party. Disputes were often handled, if not by Communist-party appointed Judges, then by supervising Communist-Party members. After briefly hearing the dispute explain the dispute, without argument, the party member unilaterally and summarily imposed the solution on the parties.   Bulgarians balked at this type of control; when given the first opportunity, it established non-judicial mediation centers as a means to avoid judicial control.

In Jordan, because of this respected tribal tradition, mediators under Jordan law also can function more like the traditional conciliator and are expressly empowered to "express his opinion and submit evidence and display legal grounds and the judicial precedents and other procedures that facilitate the mediation works." Article 6. In Western terms, this process would be characterized as "evaluative".  Thus, there is general acceptance of judges as mediators and they are used extensively in Jordan's court-annexed pilot programs (currently five of them)

IV. How mediation generally is a tool to increase access to justice, thus reinforcing the rule of law.

A. Passage of Mediation Law is a Prerequisite in civil law countries

Enactment of a mediation law is required in order to effectuate any formal or recognized governmental policy on mediation in a civil law country. [7]  

Mediation Laws enacted in developing countries for use in a court system are often simultaneously supported by commercial and business interests. Often, enactment of a new Mediation Law also is the basis and impetus for development of private mediation programs for commercial disputes.  The process of expanding mediation as a court-related program into the community, through various business entities or community organizations, has the salient effect of reducing the judicial caseload by obviating the need to litigate the dispute. Re

B. Court based mediation focuses on and resolves backlog of cases clogging the court system

►In post conflict countries where a backlog of cases as a result of war can become the focus of mediation, e.g. property ownership

►In countries beginning to grow economically, mediation can be used for overflow in financial cases in banking (where credit cards are not yet in use) (our equivalent of "bad check") e.g. Jordan

►In utility types of cases: electric and telephone.  Bulgarian mediation centers have recently been requested to mediation a class of all utility disputes .

►Collection cases seem to plague civil law countries where judgments routinely are not paid. In some countries, such as Jordan, these cases overwhelmingly comprise the back log of appellate cases.

►Insurance cases.   Some countries are beginning to experiment with handling these cases prior to litigation.  Examples: Jordan and Bulgaria

C. Increases public awareness and increases public acceptance of the courts using a process that is time-tested for integrity and confidence.

Jordan. 2007 Statistics on Jordan's First Pilot Mediation Program commenced in June 2006:                 

Singapore. Statistics of the Singapore Mediation Center show parties satisfaction based upon statistics from 1998 - 2004.      Common features associated with parties' satisfaction in with the mediation outcome:

Conducive environment 98%

Impartiality of mediators 91%

Chance to tell their views 85%

Fairness of process 90%

Mediators who understood their views 90%

Bulgaria. Statistics show that after Bulgaria passed its mediation law in December, 2004, for the second year of operation in Bulgaria's largest mediation center (BAARD) in Plovdiv mediation was successful. Mediation was conducted in 83% of the court-referred cases.  Of those cases mediation, 76.74% were successfully resolved.  During its second year, not only did Plovdiv judges refer cases to mediation, but the parties themselves began to initiate mediation.

D. Court based mediation encourages economic growth

In most developing societies, prior to initiation of court based mediation, a disputant only had two legal options-either the party took the debtor to a local court and braced for a long wait, or simply wrote off the debt if you did not like long delay or the cost.

The international financial community recognizes that slow and distrusted courts discourage business risk taking and foreign investment.  Thus, commercial and business interests often led by the World Bank, the World Trade Organization, the European Union, the International Chamber of Commerce and others, strongly support and encourage enactment of mediation in conjunction with other forms of alternative dispute resolution, mainly arbitration.  A mediation program established within the judicial system is often viewed as essential to improving an investment climate and private sector development.  The philosophic underpinnings of commercial support for mediation are that for small and medium business enterprises and entrepreneurship to flourish in a country, there needs to be a conducive business environment where the rule of law is paramount.  If the current judicial process in the region is time-consuming and expensive, it often leads to less desirable outcomes. Mediation offers one route to mitigating these issues by offering an alternative to the court process. 

Implementation of mediation laws also are often accompanied by establishing mediation mechanisms in pivotal state agencies or departments within the country. In civil law countries, a law must be implemented specifically providing for mediation before government or quasi-governmental agencies can establish internal mediation programs. For example, in Jordan, the Jordanian Insurance Commission ("JIC") has a heavy backlog of insurance disputes. The JIC may be the first such quasi governmental entity to initiate an internal pilot mediation program with its objective of building capacity for its staff members who are charged with encouraging the use of mediation and arbitration in the settlement of insurance disputes. 

IFC publicizes its statistics on its work in Balkins (Serbia, Bosnia and Herzvogina, Macedonia) over last several years. Six pilot projects have been launched: two in Bosnia and Herzegovina in May 2004 and May 2005, three in Serbia in July 2006, and, one in Macedonia.  In the past two years, IFC posted statistics show that over 1,600 cases have been successfully mediated, freeing up about €12 Million in commercial funds.  The pilot projects which were set up during the 2004-2005, show an average success rate of 81%.  The speed of the process is one of the main advantages of mediation.  See, Monitor, Alternative Dispute Resolution in Southeast Europe.  See, IFC at http://www.ifc.org/ifcext/rmas.nsf/AttachmentsByTitle/ADRmonitor/$FILE/ADR.pdf.

Key Results from the Mediation Pilot Projects

 

http://www.ifc.org/icons/ecblank.gif

Cases mediated

1,920

Successful mediations

1,561

Success rate

81%

Average time in court
(source: Doing Business 2006 report)

466 days

Average time in mediation

2.4 hours

 

V. Conclusion

Mediation, as a Rule of Law project, assists in laying foundations for an independent, impartial and transparent judiciary that will guarantee the protection of rights of citizens and legal entities.  Significantly, mediation is promoted to diminish the demand on courts by reducing crowded dockets and by permitting the public to work in a non-judicial environment.  This is particularly true in a country where the judiciary is perceived by the citizenry as: (1) corrupt; or (2) where there is no case management of the docket; and, (3) cases often are delayed and expensive. 

Mediation is expanding quickly into developing societies implementing rule of law programs in their judiciaries.  It is working well within those developing nations which recently have enacted pilot mediation projects.  Once the court-related mediation programs begin to function, other private mediation facilities often follow as a way to enhance a productive business environment, especially in those countries that had no prior mediation experience.  The International Chamber of Commerce is one such organization which actively supports private mediation within its international chapters. 

Mediation is evolving as a part of the programs enacted pursuant to rule of law initiatives. Mediation laws and programs associated with judicial access, transparency, and reducing the demand on courts recently have been, and are being, enacted in a multitude of developing countries.  Depending upon the specific factors indigenous to that country, mediation programs appear to be developing in the general direction of various models.

As mediation thrives in the judicial environment, that success incrementally encourages private mediation of all types. Collective and community experiences in mediation grow exponentially. Experiencing mediation often has a strong and recurring effect on the individual.  The individual is empowered in mediation because he or she is authorized, supported and encouraged to make an important decision in a matter once thought to be out of his or her control.   This process, when successful, often leaves a lasting impression on the individual who may use mediation techniques in other aspects of his or her life.  When the number of individuals is empowered in this process, the community is empowered. When empowerment of its communities grows and expand, the nation is be economically and morally improved. 


[1] In large part, at least in the experience of this writer, governmental entities provide the greatest source of funding for design and implementation of court-based mediation. However, there are numerous and successful privately funded NGOs which had supported and implemented various mediation in developing rule of law societies. In large part, at least in the experience of this writer, governmental entities provide the greatest source of funding for design and implementation of court-based mediation.  Perhaps one of the largest of these is The Open Society Institute which works to build democracies whose governments are accountable to their citizens. Its mission is to shape public policies that assure greater fairness in political, legal, and economic systems and safeguard fundamental rights. It supports mediation on a local community level. The Centre for Humanitarian Dialogue (CHD) is another independent conflict-mediation organization based in Geneva and working in Europe, Africa, Asia and Latin America. Its aim is to help alleviate the suffering of communities caught up in high-profile or forgotten conflicts, both through mediation and by providing other mediators with the support they need to work effectively.

[2] In November 2005, working with Pakistan's Ministry of Law, Justice, and Human Rights, the IFC launched a Pilot Program an alternative dispute resolution and mediation in Pakistan. The purpose of the program was to improve and institutionalize court-referred mediation in Pakistan and, in through the project, mitigate expensive and lengthy court procedures incurred by the private sector, to help extricate small and medium businesses from litigation, and to help release assets caught up in legal disputes.  

[3] The "Stand Alone Model" is mediation model is usually a strictly independent not-for-profit organization. The Netherlands Mediation Institute ("NMI") was an early example of this model, although it is now more closely aligned to the Court-Related Model. Current models of the type are not usually related to the court system and often operate independently of it.  This type of mediation center also usually provides its own independent quality assurance of mediation and mediators.  As is common in mediation models of this sort, the administrative relationship between the Ministry of Justice and the mediation center, at least in the inception of the program, is non-existent, except for certification or registration requirements.  Independent of the government, it may establish its own code of conduct, training requirements and system of dealing with complaints, or use other country or international standards. Mediators may be permitted to charge fees. 

[4] The Singapore Mediation Center ("SMC") is the flagship mediation centre of Singapore and a leading mediation organization in Asia, established in 1997. It is a blend of the two models with the many court referred cases taking place as part of the court annexed program in the Subordinate Courts as part of the Primary Dispute Resolution Centre. However, the courts also may refer cases to external mediation centers like SMC and the Community Mediation Centres, in appropriate cases. See, Non-Court Annexed Mediation In Singapore, a paper presented by Mr. Loong Seng Onn, Ex. Director, SMC at

httm//jrn21.judiciary.gov.ph/forum_icsjr/ICSJR_Singapore%20(L%20Onn).pdf

[5] As of late 2008, every county in Romania had its own mediation center.  Initiated by the Mediation Center in Craiova, these centers united under as the Union of the Mediation Centers in Romania. The Union of Mediation Centers in Romania sets the standards for a mediation profession that didn't exist in Romania in 2003.  More than 200 judges participated in seminars about the potential use of mediation in their courts. Almost 1,000 cases have been referred to mediation. In 95% of those cases, the parties were satisfied with the outcome of their mediation and would use mediation again.

[6] The Role of Faith in Cross-Cultural Conflict Resolution, Abdul Aziz Said and Nathan C. Funk, presented at the European Parliament for the European Centre for Common Ground, September 2001.

[7] Slovenia is a notable exception. It, has effectuated a successful informal court-referred mediation program without a formal Mediation law by relying on Civil Procedure laws which permit the judge to encourage settlement of the case.  For a compendium of civil procedure laws, particularly Alternative Dispute Resolution laws, in the European Union, see the European Judicial Atlas in Civil matters at 

ec.europa.eu/justice_home/judicialatlascivil/html/index_en.htm

Lynn Cole

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Lynn H. Cole, Esq. is a dispute resolution professional with experience in all aspects of ADR, including mediation and arbitration. She also has served as a Special Master, an SEC receiver, a neutral evaluator, a Special Magistrate and settlement counsel. She has served internationally in Bulgaria, Jordan and Kosovo as an ADR and Mediation Specialist with USAID and teaches internationally.