Tue 28 September 2021
By Dr Xue BAI
The use of tailored, user-driven dispute resolution mechanisms employing different forms of dispute resolution processes either concurrently or consecutively has received significant recent attention (e.g., adjudicative processes, such as litigation and arbitration, combined with non-adjudicative processes, such as mediation). With tailormade processes becoming increasingly common, the Mixed Mode Taskforce was created in 2016 with the goal of develop practical suggestions for users and providers of dispute resolution services about how dispute resolution processes can be combined to optimize the resolution of commercial disputes between businesses, and what constraints should be considered. A series of short articles summarising each working group’s work was recently published by the New York State Bar Association and a short article on Working Group 3 can be found here.
On 13-15 September 2021, the Mixed Mode Taskforce held a series of online public consultations. UNSW Law’s Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre member Associate Professor Kun Fan, as a co-chair of Working Group 3 (WG3) of Mixed Mode Task Force, together with Professor Véronique Fraser, explored and investigated mixed mode practices from various cultural and legal standpoints, including information about current experience, best practices, and provided practice guidelines for mediators’ use of non-binding evaluations and settlement proposals.
In considering mediators’ use of non-binding evaluations and settlement proposals, WG3 suggested a shift in focus from mediators’ orientations to the effects of mediators’ techniques on party autonomy regarding substance and process. To this end, WG3 recommended using an adapted version of Riskin’s New New Grid to anchor party autonomy in mediation—Working Group 3’s Grid on Party Autonomy in Mediation and Conciliation Process. Based on the Grid, WG3 proposed adapting neutrals’ techniques to parties’ process choices regarding process substance and autonomy, within the zone of permitted evaluations (ZOPE). ZOPE makes it clear that any evaluative input should be confined to the zone within which the parties have consented. WG3 also recommended the Table on the Range of Facilitative and Evaluative Techniques Used by Mediators and Conciliators, based on the degree of self-determination regarding the substance and the process that the parties retain. Finally, WG3 provided a checklist of elements for the mediators/conciliators to consider together with the parties when making evaluations. The full draft of the report is available here for public consultation.
Associate Professor Kun Fan suggested that the recommendations from the Task Force could assist users, neutrals and institutions to better design tailor-made dispute resolution process, and thus optimize the resolution of commercial disputes between businesses.