About shahlaali

Assistant Professor at the University of Hong Kong.

Review of Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice (2018)

The Asian Journal of Law and Society recently published a review written by Professor Eric Feldman of University of Pennsylvania of Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice

Book Review: Court Mediation Shahla Ali, Court Mediation Reform: Efficiency, Confidence, and Perceptions of Justice (Cheltenham, UK: Edward Elgar Publishing, 2018) pp 298. Hardcover: $135.00.

“Where there are people, there is conflict; and where there is conflict, there are conflict resolution institutions. In many societies, including the ten countries that form the heart of this book, the government-run institutions charged with resolving conflict are called courts. Yet, in all ten countries, experts and the populace more generally believe that courts are to some degree failing. In response, they have created alternative dispute resolution (ADR) institutions to handle at least some of the conflict bubbling throughout society. In addition, country by country, they have retooled their courts and introduced court-based mediation in an effort to provide an attractive venue to disputants.

Professor Shahla Ali’s book, Court Mediation Reform: Efficiency, Confidence, and Perceptions of Justice, takes a careful look at whether mediation provides a solution to the various problems that allegedly are endemic to courts around the world. Is mediation less expensive than litigation, for litigants themselves or for the state? Does mediation reduce the caseloads that so often overburden the civil-litigation system? To what extent does mediation serve to mend, or even enhance, relationships that might be permanently frayed by litigation? Does the relative informality of mediation improve the experience of those who engage in conflict by involving them more thoroughly in the process of dispute resolution? Might mediation offer social benefits that elude litigation, like creating a shared sense of harmony? By looking systematically at court mediation in a variety of national settings, Ali provides insight into how mediation currently functions, as well as its successes, failures, and continuing challenges.

Ali, a law professor at Hong Kong University, has carefully constructed this comparative study. Because of differences between civil-law and common-law jurisdictions, she explores mediation in both types of legal systems. She also accounts for gaps between more and less economically advanced countries, and for differences between mandatory and voluntary mediation systems. The result is a book with ten case-studies, five of which focus on voluntary mediation (UK, Hong Kong, France, the Netherlands, Malaysia) and five on mandatory mediation (the US, Australia, Italy, China, and India). The studies are centred on the five years following the introduction of mediation in each jurisdiction. A survey of 83 practitioners provides a complementary, qualitative assessment of mediation.

The tight, rigorous construction of Ali’s comparative project belies the far-reaching, multifaceted nature of the questions it addresses. As her review of the theoretical framework of the project makes clear, her aim is to put some empirical meat on the bones of the debate over the strengths and weaknesses of ADR. What happens, she asks, when conflict resolution bypasses formal, state-sponsored, judicial decision-making, and is instead managed through ADR? Does ADR serve as a venue for the public airing of values? Does it establish precedent for future cases? Does it damage the authority and credibility of courts? To what extent does it diffuse the legitimate claims of parties? How well does it serve justice? As Ali makes clear, defenders of ADR generally (and mediation more particularly) argue that it enhances participation in the legal process, empowers participants, strengthens values like dignity and empathy, underscores relationships, and promotes justice. Does it? Or do the critics of ADR have a long list of legitimate gripes? Against this ideologically charged debate, Ali insists that we put aside the rhetoric and look carefully at how mediation is working on the ground.

If you are hoping to find an easy answer to the question of whether mediation is “better” than litigation, you will not find it in Ali’s careful, balanced analysis. When it comes to the question of whether mediation is less expensive than litigation, for example, Ali concludes that it might be, but “given the mixed findings in terms of overall cost savings, particularly for mandated cases that require further litigation, questions still remain as to whether court referred mediation does in fact reduce litigation costs.” In considering the relative speed of mediation, she similarly concludes that the results are mixed. Adding to the difficulty of reaching firm conclusions about cost-effectiveness and speed is the impossibility of knowing what would happen if resources directed to promoting mediation were instead directed to the civil-litigation system.

In addition to looking at issues of cost savings and speed, Ali examines a number of what she calls “extrinsic” factors that might lend support to the efficacy of judicial mediation. They include the possibility that mediation strengthens rather than corrodes relationships; the claim that mediation improves social harmony and stability; and the potential for mediation to engage citizens in the process of dispute settlement, thereby enhancing their satisfaction with the outcome. All of these factors are notoriously difficult to study, and no single source of information provides reliable measures. Ali confronts that challenge by looking to a number of data sources, including the World Bank Group’s Worldwide Governance Indicators, the World Economic Forum’s Global Competitiveness Report, and the World Justice Projects’ Rule of Law Index.

Overall, Ali’s results suggest that voluntary programmes have some advantages over mandatory mediation—they are slightly more efficient, people have somewhat more confidence in them, and participants’ perceptions of justice are higher. From the perspective of impartiality and effectiveness, however, mandatory and voluntary programmes are indistinguishable. Practitioners, it seems, perceive both mandatory and voluntary mediation programmes as similarly fair, though they have slightly more confidence in mandatory programmes and see voluntary programmes as more efficient. These findings provide texture and nuance to Ali’s overall results.

In addition to the intriguing differences Ali identifies between mandatory and voluntary mediation, she makes a number of additional observations based on data from the country studies. In the five jurisdictions that rely on voluntary mediation, Ali finds that three of them appear to settle disputes more efficiently than courts; two have experienced greater accessibility and affordability; four have found ADR more impartial and effective than courts; and all have enjoyed less delay in civil justice, a higher ranking in the quality of civil justice, more effective enforcement of settlements, and less discrimination. In the five jurisdictions relying on mandatory mediation, two have experienced more efficient dispute settlement than courts; four have less delay, higher-quality civil justice, and more impartial and effective ADR; two have experienced lower levels of discrimination; all have enjoyed more effective enforcement of settlements; and one has enjoyed a higher degree of accessibility and affordability.

Do these findings put to rest at least some of the criticisms levelled at mediation? Perhaps. But Ali leaves readers to draw their own conclusions, and instead highlights the limitations of her work, such as small sample size and noisy causal relationships. Moreover, she notes that the relative success of mediation depends to some extent on how well the overall system of civil-litigation functions. In jurisdictions where civil litigation seems to be failing—India is one example—alternatives may be particularly welcome. In places with a reasonably well functioning and responsive court system, on the other hand, mediation has less opportunity to succeed.

Although this book does not offer definitive answers to all of the questions raised by court mediation, it does something even more important—it presses us to be more rigorous in how we think about mediation, the claims we make about its relative strengths and drawbacks, and the framework we use to assess it. It does all of those things by putting comparative work at its core, and including a set of case-studies that literally spans the globe. Ali’s tendency to qualify her results and underplay her conclusions is part of what makes the book so compelling. It is not a cudgel, insisting on a particular point of view, and adding to the ideological divide over mediation. It is a scalpel, carefully dissecting overblown claims and adding desperately needed comparative data to an area that has been long on opinion but short on facts.

In sum, this is a rigorous, thoughtful, and innovative analysis of a set of questions important to every country. It is also timely. At this point, there are no clear global patterns as to whether most countries are devoting resources to mandatory mediation, voluntary mediation, or neither. Legal elites pondering their options ought to read this book; and so should anyone interested in civil justice, and how best it can be achieved.”

Eric FELDMAN University of Pennsylvania

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Forum: Advances in Comparative and Transnational ADR – Research into Practice, 8 & 9 March, 2019

On 8 and 9 March 2019, the University of Hong Kong Faculty of Law will be hosting a forum on “Advances in Comparative and Transnational ADR – Research into Practice.”  Registration is free of charge and available here.

Program

March 8th
8:40am Registration, 11th Floor Cheng Yu Tung Tower Faculty of Law; University of Hong Kong, Hong Kong SAR
9:00 am Welcome: Dean Michael Hor, University of Hong Kong, Faculty of Law

Opening remarks: Shahla Ali, University of Hong Kong

9:15 am – 10:15 am Session 1 – Methodological Considerations in Comparative and Transnational ADR

Chair: Zhao Yun
Discussant: Lola Akin Ojelabi

·      Matthew Erie, “The Third Eye: The Problem of Method in the Study of Transnational Dispute Resolution”
·      Michael Palmer, “Modes of Dispute Response: Reconnecting the Range”
·      Shahla Ali, “Advancing Research and Practice in Dispute Resolution Institutions through Inclusive Devolved Reflection”

10:15 am – 10:35 am Morning Break
10:35am – 12:10 Session 2 – Comparative ADR Ethics, Standards and Jurisprudential Ideals

Chair: Keith Hawkins
Discussant: Kerstin Bree Carlson

·      Deborah Hensler, “Re-Inventing Arbitration: How Expanding the Scope of Arbitration is Re-Shaping its Form and Blurring the Line Between Private and Public Adjudication”
·      Michal Alberstein, “Between Summary Trials and ADR”
·      Lola Akin Ojelabi, “The Challenges of Developing Global Ethical Standards for ADR Practice”
·      Zachary R. Calo, “Legal Ethics and Transnational Dispute Resolution”
·      Dorcas Quek, “A New Chapter in the Cross-Border Enforcement of Mediated Settlement Agreements: The Elevated Role of Mediation Standards in Procedural and Substantive Justice”

12:10-1:20 Lunch for Speakers/Chairs 
1:20 pm – 2:20pm Session 3 – Comparative Approaches in Conciliation and Arbitration

Chair: Tania Sourdin
Discussant: Luigi Cominelli

·      Anselmo Reyes, “The Use of Conciliation and Litigation by the Hong Kong Equal Opportunities Commission”
·      Manuel Gomez, “Talk to Me: The Upsurge of International Arbitration-Related Conferences and their Impact on Academia, the Industry and the Legal Profession”
·      Gu Weixia, “Arbitration in Comparative Perspectives”

2:20 pm – 3:35 Session 4 – Comparative ADR in Peace building, Health Care and Disasters

Chair: Eric Feldman
Discussant: Matthew Erie

·      Kerstin Bree Carlson, “Peace Through Law: A Hybrid Tribunal for Divided South Sudan”
·      Eric Feldman, “Recent Developments in Victim Compensation for the Fukushima Disaster” [TBC]
·      Nadav Davidovitch, “Dealing with Conflicts in Health Care Systems: Form Clinical Medicine to Public Health Settings”
·      Martin Lau, “TBC: ADR in Pakistan”

3:35-4pm Break
4pm – 5:50pm Session 5 – ADR Developments and Reform in Mainland China

Chair: Michael Palmer
Discussant: Sida Liu

·      He Xin, “Flexibility and Authority: Resolving Labor Disputes in a County Government in Western China”
·      Kwai Ng, “Wearing Two Hats – Problems of Judicial Mediation as Seen from China”
·      Chao Xi, “Negotiations in the Shadow of Shareholder Activism”
·      Sida Liu, “The Spaces of Global China: Hong Kong as a Frontier for Chinese Law Firms”
·      Ling Zhou, “Forum Shopping in a World of Mixed Processes: China’s Professional Litigants”
·      Yang Lin, “New Developments in Online Dispute Resolution in China”

5:50 pm Closing remarks
6:30pm Dinner hosted by HKU (by invitation only)

Saturday March 9th

9:30am – 11:20 Session 6 – Mediation Developments in the Context of Civil Justice Reforms

Chair: Mark Feldman
Discussant: Mark Feldman

·      Tania Sourdin, “When is the Best time to Mediate? Considering Early Mediation”
·      Luigi Cominelli, “Mediation Models and the Impact of the 52/2008 Directive on Civil and Commercial Mediation in Europe”
·      Pablo Cortes, “Imbedding Mediation in the Civil Justice System”
·      Nadja Alexander, “International Comparison of Regulatory Systems for Mediation”
·      Francis Law, “TBC”

11:20-11:50 Break
11:50 am – 12 Closing remarks and next steps
12 noon Lunch hosted by HKU (by invitation only)

Conference Theme:

The focus of the forum is on exploring the challenges and opportunities in understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research. Papers will cover topics such as practical considerations in conducting comparative work in the field of transnational and comparative dispute resolution, insights from recent studies, and consideration of how research may inform policy reform in ADR institutions regionally and transnationally. The aim of the forum is to facilitate research collaboration that will also translate into positive policy applications and directions for future study.

Speaker and Chair Bio’s:

May be found here.

Media sponsor: TDM

** Transnational Dispute Management (TDM, ISSN 1875-4120) is a comprehensive and innovative information service on the management of
international disputes, with a focus on the rapidly evolving area of investment arbitration, but also in other significant areas of international investment (such as oil, gas, energy, infrastructure, mining, utilities etc). It deals both with formal adjudicatory procedures (mainly investment and commercial arbitration), but also mediation/ADR methods, negotiation and
managerial ways to manage transnational disputes efficiently. See
www.transnational-dispute-management.com for more information. You can
apply for a free OGEMID trial membership and students can sign up for
Young-OGEMID (which is free)

 

Call for Papers: Advances in Comparative & Transnational ADR: Research into Practice

The Law Faculty at the University of Hong Kong will be hosting a research forum March 8-9, 2019 on Advances in Comparative & Transnational ADR: Research into Practice to which we  warmly invite submissions for consideration.

 

  • The focus of the forum is on exploring the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research.  Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and cross-border dispute resolution, insights from recent multi-country studies, and consideration as to how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.
  • For those wishing to submit a paper for consideration:
a) By 10 December 2018, please e-mail us:
(i) an abstract of your paper (up to 200 words);
(i) your biography (100 words);
(iii) indicate whether you intend to submit your paper for the conference publication; and
(iv) indicate whether you have any objections to being a discussant at the forum.
Submissions may be sent to: sali@hku.hk

International Dispute Resolution Team Established by China’s Supreme Court

With the aim of providing a mechanism for the promotion of international commercial dispute resolution in the context of cross-border trade and development, in August of 2018, China’s Supreme People’s Court established its first International Commercial Expert Committee to provide advisory opinions and assist in the mediation of disputes.  The Committee consists of 32 Chinese and foreign experts. A recent report noted that ‘the International Commercial Expert Committee is designed to ensure operation and promote adjudication of the International Commercial Court, and support to resolve international commercial disputes through arbitration, mediation, litigation and other diversified commercial dispute settlement methods.” According to Susan Finder, this Committee appears to be the “first of its nature within the Chinese justice system.”  

United Nations Convention on International Settlement Agreements Resulting from Mediation to be Signed in August 2019

After three years of active negotiation, UNCITRAL working group members successfully reached agreement on the formation of the United Nations Convention on International Settlement Agreements Resulting from Mediation.  The treaty will be signed in Singapore in August 2019 and named the Singapore Convention on Mediation.

At present, when parties seek to enforce the outcomes of cross-border disputes, they have two existing means of recourse through the NY Convention (for international arbitration) and the Hague Convention (for cross-border litigation).  However, until now, parties to cross-border mediation had limited if any means of enforcing cross-border settlements.  With the Singapore Convention, mediation is now a viable option for parties seeking to resolve cross-border disputes.

Ms Sharon Ong, part of the Singapore delegation to UNCITRAL noted that at the final stages of negotiation, when a 2017 blizzard shut down the United Nations Headquarters where delegates had been meeting and squeezed into a nearby law firm’s conference room, “we resolved a lot of the issues that had been sticking points for many years. We all just came with a spirit of co-operation, so it was very collaborative and people were very open about things.” Mrs Morris-Sharma, chair of the UNCITRAL Working Group noted that “In any process that involves reaching a common understanding of how processes should be approached, delegations had to consider how this new system would fit in with their domestic processes… Thankfully I think we managed to strike a balance between the divergent views through the Singapore Convention.”

When ratified, the Convention will encourage commercial entities to resolve their disputes on the basis of party autonomy and agreement which mediation affords.

China International Arbitration Court Established in Hainan

A China international arbitration court was recently established in Haikou, Hainan Island in July of 2018. The Court of International Arbitration in Hainan is the second to be established after the Shenzhen Court of International Arbitration was opened in January of this year.  Hainan has recently been designated as a free trade zone. Shi Wen, head of the Hainan Arbitration Commission, noted that the new Court’s council members will be comprised of both Chinese and overseas arbitrators. The Court in Hainan has two centres, one focusing on maritime arbitration and the other on financial arbitration.

 

International Conference on Consumer Redress

On 9-10 April 2018 the Faculty of Law, Stellenbosch University (dr. Theo Broodryk) and KU Leuven (prof. dr. Stefaan Voet) jointly organized the inagural International Conference on Consumer Redress. The purpose of the conference was to “discuss various local and international consumer redress mechanisms, including alternative dispute resolution methods and class actions, as a means to resolving consumer disputes.” The conference was attended by scholars from South-Africa, Europe, the US and Asia.