Laura Kaster, Jennifer Brandt, David Weiss and Robert Margulies - Enforcing mediated settlement NOW in a flat world (8 May 2020)

Laura Kaster

Former Head of Litigation at AT&T and IMI Certified Mediator

Jennifer Brandt

Mediation Ambassador for the Foundation for Sustainable Rule of Law Initiatives and IMI Certified Mediator

David Weiss

Founder of the Institute of Dispute Resolution and IMI Certified Mediator

Robert Margulies

Board Member of Global Mediation Exchange Center and IMI Certified Mediator

The Global Mediation Exchange Center (GMXC) and Laura Kaster, Jennifer Brandt, David Weiss and Robert Margulies invite you join IMI for a seminar on the groundbreaking New Jersey Statute that affords the opportunity right now to obtain Consent Awards after a mediated resolution of cross-border disputes. This is what family and small and large businesses across the globe have been demanding.

This exciting program is cosponsored by International Mediation Institute (IMI) and is academically supported by the Institute for Dispute Resolution (IDR) to advance cross-border business. IMI was the leading institution in conducting the Global Pound meetings around the world that established the need for a larger role for mediation in cross-border disputes. IDR advances both policy and mediation adoption in the wider business community. The GMXC was established specifically to administer the New Jersey solution to the global quest. This is the first in several projects between IMI and IDR on advocating mediation policy and promoting mediation in the larger cross border business community.

Time: 3:00PM CEST

Ms. Laura Kaster (Former Head of Litigation at AT&T and IMI Certified Mediator), Mr. David Weiss (Founder of the Institute of Dispute Resolution and IMI Certified Mediator), Ms. Jennifer Brandt (Mediation Ambassador for the Foundation for Sustainable Rule of Law Initiatives and IMI Certified Mediator), and Mr. Robert Margulies (Board Member of Global Mediation Exchange Center and IMI Certified Mediator) gave an informative and insightful presentation on the New Jersey International Arbitration, Mediation, and Conciliation Act (NJ Act), and the enforcement of mediated settlement agreements under this Act.¹

Mr. Weiss began the presentation with the statement that the topic of aiding businesses through increasing productivity, ensuring predictability and certainty in dispute settlement has been the focus of many discussions. One such example was the Global Pound Conference (GPC) organized by the International Mediation Institute (IMI). During the GPC, events and discussions were organized across twenty-two different counties. Data collected during the GPC reflected that 44% of the participants preferred to have an established framework for the enforcement of international settlement agreements reached through mediation. The participants justified this preference on the basis that without it, settlement agreements would be enforced as international contracts under varying domestic commercial laws, jurisdiction depending. He opined that this consensus paved the way for the acceptance of the Singapore Convention on Mediation² (SCM) and the enactment of a domestic statutory framework in the U.S. state of New Jersey.

Ms. Brandt then gave a brief overview of the SCM. There are currently 52 Signatory countries including the United States of America.^<3 The SCM would come into force on 12 September 2020 as three countries – Singapore, Fiji, and Qatar – have ratified it. Ms. Brandt opined that the SCM, by ensuring that mediated settlement agreements are binding and enforceable throughout the world, plays a similar role for mediation like the New York Convention for arbitration.⁴ She believed that the SCM could enhance international trade. This is because commercial parties will have access to a dispute resolution mechanism that – when compared to litigation and arbitration – is cheaper, faster, and certain. These benefits are in addition to preserving the business relationship between the parties.

However, Ms. Brandt was concerned that there is still a ways to go before these changes take effect. She cited that none of the major economies have ratified the SCM. Additionally, neither the European Union member states nor the United Kingdom are signatories to the SCM yet. Presently, Ms. Brandt believed that the other U.S. States could adopt the statutory framework enacted in New Jersey to avoid litigation when enforcing their mediated settlement agreements.

Mr. Margulies introduced the New Jersey International Arbitration, Mediation and Conciliation Act (NJ Act), as effective from 7 May 2017. The NJ Act is applicable only to cross-border disputes, but does not apply to disputes relating to family or property situated in New Jersey. Under the NJ Act, it is possible for disputes to be settled through the Arbitration-Mediation-Arbitration (Arb-Med-Arb) method.

As its name suggests, under the Arb-Med-Arb method, arbitration is initiated when a dispute arises. Upon the institution of the arbitral tribunal, the dispute is then referred for mediation. If the parties settle their dispute through mediation, their mediated settlement agreement is recorded as a consent award. It is interesting to note that under the NJ Act, the Arb-Med-Arb process allows the arbitrator and the mediator to be the same person. Mr. Margulies believed that the NJ Act would encourage small and medium sized companies to enter the international trade arena as settlement agreements could be easily enforced under the New York Convention.

Ms. Kaster went on to explain that the NJ Act adopted the Arb-Med-Arb process because of the requirement set out by the New York Convention. Article I of the New York Convention states that the Convention will apply to ‘the recognition and enforcement of arbitral awards’. Consequently, to facilitate the recognition and enforcement of the consent award, disputes are first submitted to arbitration before continuing to mediation. Ms. Kaster emphasized that, by adopting the Arb-Med-Arb method, any consent award rendered at the end would be enforceable under the New York Convention. She believed that Arb-Med-Arb is a viable solution to commercial disputes as the process combined the advantages of both arbitration and mediation.

Q&A Discussion

The presentation was followed by an interactive Q&A session. Some topics addressed during the session included:

• How does ratification of SCM help any country and its economic sectors in dispute resolution?
• As the SCM excludes settlement agreements reached through Court enabled mediations, would Arb-Med-Arb be contrary to the mechanism contemplated under the SCM?
• What benefits would ratification of the SCM bring when a country already has a law to directly enforce both domestic and international mediated settlement agreements?
• Is the Med-Arb process observed when resolving disputes under the NJ Act?
• Would family estate disputes involving business interest be covered within the scope of the NJ Act?

If you would like to listen to the session, or access handouts, it is available here.

We would like to thank our friends at the International Mediation Institute Institute and the Global Mediation Exchange Center for having made this session possible.

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¹New Jersey International Arbitration, Mediation and Conciliation Act, N.J.S.A. 2A:23E-1, effective from 7 May 2017, a copy is available here. The Act is designed to improve and broaden international alternative dispute resolution in the state.

²Officially named United Nations Convention on International Settlement Agreements Resulting from Mediation.

³Status of United Nations Convention on International Settlement Agreements Resulting from Mediation available here.

⁴United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.