Monday, March 7, 2011

Finally, a better book (508 pages worth) on International Mediation

When International Comparative Mediation: Legal Perspectives (Global Trends in Dispute Resolution arrived, and I got my first look, my heart dropped.  I've slogged through a number of texts that were really useless literature reviews, hitting the same tired notes (med-arb discussions anyone) with footnotes that were really recycled dry sawdust. 
While Nadja Alexander's book does  have footnotes (e.g. Chapter 1 is about 60 pages and 165 footnotes; Chapter 7 about 42 pages and 221 footnotes), only a handful date to the 1982 to 1985 era (the 1880s cite doesn't count).  Most are post 2000 and almost all of them are relevant.
The best way to think of the book is to approach it as a cross between a text book and a broad analysis of the topic, spanning most international ADR procedures (that is, it includes arbitration and a wide range of mediation pratices, though it does not include peacemaking facilitation). 
There is a light touch of the literature survey (such as "In Smits' words" or "Coben and Thompson call") but is a bare scattering that does not reduce the value of the book or distract from the content.
Pages 1 to 60 are introduction.  Chapter 2 orients mediation in the legal context and from page 61 to 105 (and 166 footnotes) it provides a useful review and a solid national and international setting.  It provides useful integration into policy considerations (Pages 106 to 114 especially).  Chapter 3 covers pre-mediation -- how mediators are selected and matters referred (Pages 115 to 170 and only 252 footnotes).
 Chapter 4 covers mediation clauses and agreements (see also the model language in Appendix A) and the various considerations appropriate to many jurisdictions.  Chapter 5 develops the implications of the intent of the agreements by addressing the legal context, duties and conduct of mediators and participants.
Chapter 6 begins on page 245 and addresses confidentiality.  Chapter 7 begins at 293 and covers post-mediation issues from a legal perspective.  It addresses jurisdictional affects of mediation on limitations (tolled in many countries, not in others, by ADR/mediation procedures), enforcement, challenges and remedies and the reporting duties of some jurisdictions.  Any mediator who travels should realize that some jurisdictions require a mediator to retain notes for seven years, others encourage destruction at the end of a mediation session.  It reaches other issues as well.
In all of these chapters the policy considerations are set out and often contrasted with each other.  The core of the book completes at page 336.  he book then goes forward to analyze the UN efforts to create a model law for international commercial mediation.
Since UNCITRAL continues to press forward with multiple nations adopting various parts of the MLICC (a model law with roots that go back to 1968 and with current promulgation date of 2002), the history and basics of the MLICC are very relevant to any international context.  Even  the United States has enacted portions via the Uniform Mediation Act sections used by nine states adn the District of Columbia.
There is a solid policy and theme analysis of the act and its critiques.  From 350 to 383 the book contains an interview with Jerney Sekolee, former secretary of UNCITRAL.   That interview provides an excellent insight into the UNCITRAL mindset.
Chapter 9 is the actual model law, with comments on the MLICC (2002).  Appendixes A, B & C start on page 441, the index starts on page 485.
But this is finally, the better book.  Given the number of bad books I've read that tried to reach the topic, I'm glad there is one that is finally worthwhile I can review and recommend.

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