This article tells the story of University of Strathclyde Mediation Clinic through the eyes of its founder. Taking its first case in 2012, by the start of 2021 it will be providing a free mediation service in 16 of Scotland’s 39 sheriff courts, covering more than half the country’s population. Yet it started with no plan, no budget and a few volunteers. The article makes the case that mediation clinics, like mediation itself, call for improvisation, coining the term ‘pracademia’ to describe how such clinics straddle the two worlds of practice and theory.

As mediators we should be aware of our biases. We cannot avoid them, although we need integrity and impartiality while helping people communicate and negotiate in their search for conflict resolution. The mediator’s job is delicate and important, as we ‘play’ with people and their underlying interests, emotions and identity. That is also the case in business mediation, where it all seems to be just professional and some feel emotions are to be avoided.
Mediators need much intrapersonal work to stay balanced and to manage their own biases. In this article a 5 step Managing Biases Process (5MBP) is suggested.
To do this honestly and seriously, and to keep growing, we need a ‘sparring partner”. Such mediator buddy contributes to our checks and balances, and better guarantees the integrity of the mediator.

In this article the authors describe briefly the legal aspects of liquidation of an estate and the alternative way of mediation. Besides that they investigate what should better be done before the estate will be liquidated. It turns out that also in that case the facilitation of mediation is a wise choice.

In 1976 the OECD Guidelines for Multinational Enterprises, about corporate social responsibility and sustainability, were carried. To implement the guidelines national contact points inform people and enterprises, and mediate in case of a complaint. This article describes the structure, procedure and role of the Dutch and Belgian National Contact Points.

The Austrian mediation landscape is quite inhomogeneous, with no universally applicable framework in place to safeguard best practice standards in mediation. Any commitment of mediators to codes of conduct or ethical guidelines occurs on an entirely voluntary basis. Control mechanisms exist in the form of complaint bodies instituted at the level of Austrian mediation associations.

Traditionally, it has been taught, or prohibited, for mediators to charge ‘success fees’ or ‘contingency fees’ as remuneration for the work they do. This article argues that such overall prohibition lacks nuances. Mediation rules and rules of ethics for mediators should not prevent the parties and the mediators from agreeing on some sort of higher remuneration in case of successful outcome of the mediation. There are limits. In particular, making the mediator’s remuneration a percentage of the settlement amount should remain prohibited.
However, if the mediator’s interests are aligned with those of the parties, which shall frequently be the case, there should be no blank prohibition for the mediator to charge higher fees in case of successful outcome of the mediation process.
There is a need for the mediator to be fully transparent about the system he proposes, which includes explaining to the parties and securing their understanding of the pros and cons of the remuneration system he suggests.

Slovenia realized very early that mediation as a form of a more flexible, consumer-friendly and interest-driven procedure can also be utilised as an effective means of court backlog reduction. The court-annexed mediation model was launched in 2001 without any regulatory framework as a pilot project at the District Court of Ljubljana. As a consequence of the successful pilot project court-annexed mediation was introduced into every first-instance and second-instance court. The main incentives for the mediation model were that it was free of charge, i.e. the costs of mediation were included into the court budgets, that it was performed by judges trained as mediators and that attorneys were included into the process at a very early stage. Mediation has become widely accepted, as the voluntary uptake by the parties is quite high and referral to mediation by judges against the will of litigants is rather an exception.

Following a retrospective of the road towards the Convention, incorporating some Singaporean inside views, the authors provide a detailed analysis of the envisaged grounds for refusal of mediated settlements. The authors also highlight various issues around the very concept, and proof, of mediation. These issues are fundamental, as only settlements ensuing from mediation are covered. Another significant aspect is the absence of any provisions pertaining to the status of agreements to mediate, the contract situated at the entry side of mediation.

This article provides a preliminary analysis of the 622 responses to a questionnaire conducted in the context of Maryam Salehijam’s PhD research which focuses on commercial parties’ agreement to mediate/conciliate. The questionnaire targeted ADR professionals and experts with experience in drafting, inserting, or enforcing dispute resolution clauses that provide for non-binding ADR mechanisms. Some of the key findings include that it is still not very common for commercial contracts to conclude agreements to mediate/conciliate. This begs the question of why the parties and/or their legal advisors do not conclude such agreements as regularly as agreements to arbitrate. Moreover, the questionnaire confirmed that there is widespread practice in contract drafting to copy and paste dispute resolution clauses. This practice is shocking in light of the rising number of cases in which the parties dis­agree regarding the binding nature of their dispute resolution clause.

In this article authors discuss (possible) legal means and methods aimed at making mediation clauses effective and/or enforceable. In particular Belgian and Dutch law are examined. In part attention is also paid to English, French and Italian law. Against the background of recent EU-legislation the validity of mediation clauses is discussed as well, with a focus on consumer related disputes. By reviewing US case law with regard to the duty to participate in good faith in the mediation process, the authors also outline the limits of this concept for the effectiveness of mediation clauses. The central theme of the enforceability of mediation clauses has been looked at both from a procedural as from a financial angle. Substantial differences can be noted between the Belgian and the Dutch approach towards what courts should do when dealing with a dispute in which parties have previously agreed to mediation. Belgian law provides in art. 1725 § 2 Judicial Code that the court, if so requested by the defendant, is in principle obliged to suspend the examination of the case until the mediation has taken place. According to current case law, the situation in the Netherlands is that mediation clauses are in principle not enforceable (Supreme Court 2006). Following the most recent legislative proposal regarding mediation (July 2016) the court should examine whether mediation can still have an added value in case one party refuses to take part in a mediation as provided for in a clause invoked by the other party, prior to (possibly) proposing mediation. Based on the plans repeatedly announced by the Belgian Minister of Justice, it is likely that there will soon be an amendment to the mediation provisions in the Judicial Code that will allow courts to ‘force’ mediation upon the parties, even in the absence of a mediation clause. If this becomes the rule, judges would be well advised to exercise this power with due care. In the authors’ opinion the Dutch approach (as suggested in the most recent legislative proposal) in connection with mediation clauses, consisting in having the court examine whether mediation may (still) have an added value for the parties, could serve as a good guideline for the Belgian judges to use.

The 2013/11/EU Directive on alternative dispute resolution for consumer disputes has forced the bar authorities in all European countries to think about the implementation of a dispute resolution mechanism to handle disputes between lawyers and their clients. The fear, if not done, would be that disputes between lawyers and clients would fall into the general consumer dispute resolution mechanisms, which many felt would not be adapted to the peculiarities of disputes between lawyers and clients, in particular concerning the proper respect of professional secrecy. Hence the need for the bars to develop their own system. The Czech Bar Association has been among the first to propose such mechanism to the Ministry of Industry and Trade. This article describes the broad outlines of the system.

Despite the positive development of the European Mediation Directive and its translation in the German Mediation Law, in 2014 only 1.5% of the cases in court proceedings at the lower German courts were referred to court mandated conciliation or mediation proceedings. Against this background and in the context of a broader ten years research project, PricewaterhouseCoopers and the Institute of Conflict Management at the European University Viadrina Frankfurt (Oder) initiated a series of studies in 2005. This series was recently concluded with the fifth study conducted end of 2015 and published in October 2016. In addition to assessing the overall corporate landscape in Germany with regard to commercial dispute resolution, the study also considered the future developments and the required changes for further advancing this field.

Mediation plays a critical role in the development of any civil justice system. The positive effects of mediation could only manifest if the process is protected in ways that allow parties to truly be able to choose what is best in their interests and explore options free from interference from anyone else. The Chinese legal culture, coupled with a systemic distortion of the function of mediation during the period between March 2008 and March 2013, made it very difficult to develop an authentic mediation system that places party autonomy and other core principles at the heart of the process. As much as the leaders of the Supreme People’s Court today are aware of the need to strengthen the courts role in declaring legal norms and enforcing rights, it is argued that courts (especially lower courts) are likely to continue to use judicial mediation for institutional or strategic purposes.

Taking the recent European Commission’s Report on the application of Mediation Directive 2008/52/EC as a starting point, the authors set out to reconstruct the pattern of ADR/mediation activities undertaken by the EU and the Council of Europe over the past 40 years. The authors conclude that the European initiatives have been conducive to a broadening and deepening of the ADR debate. Remarkable shifts can be observed in the emphasis placed by the European agencies during this period, notably a shift from emancipatory to efficiency-based arguments. The inherent coupling of private mediation and public adjudication entails risks however for each of these distinct conflict resolution strategies. The authors call for advanced research designs to generate the data needed for a genuine evidence-based policy in this domain.

It is often assumed business mediation in The Netherlands is not used to its full potential. This article reports on 17 interviews with lawyers from leading Dutch business law firms about their considerations regarding mediation. Most reasons mentioned to turn to mediation are in line with the advantages of mediation described in the literature. Unique positive considerations are: (i) mediation may serve as a substitute for confidential discussions between lawyers and (ii) a mediator may help to sidetrack the sub-standard lawyer on the other side. Reasons mentioned to refrain from mediation are: (i) attempts to resolve the conflict have already been made at various hierarchical levels of the companies involved; (ii) for lawyers with adequate negotiation skills a mediator has little added value; (iii) parties require a formal judgement; (iv) mediation implies some sort of compromise; (v) lack of trust between parties; (vi) not knowing any sufficiently skilled business mediators.