Karl Bayer came across this interesting recent reform affecting the resolution of disputes in Hong Kong: Judiciary makes case for mediation Monday, January 04, 2010 Mediation, a process that aims to resolve disputes and keep them out of the courts, takes another step forward today with the Judiciary opening an information office on the practice.The Mediation Information Office has been established under the Judiciary’s Practice Direction 31 on Mediation, which came into operation last Friday. The practice direction covers relevant civil cases in the Court of First Instance and District Court. It contains the procedure to be followed by disputing or litigating parties to engage in mediation after the commencement of a court action by writ. The office provides litigants with information to help them consider whether they should attempt mediation to resolve their disputes, and to enable them to seek it from professional bodies. “The target users are parties who have commenced or are about to commence civil proceedings in the High Court or District Court, including unrepresented litigants,” a spokesman for the Judiciary said yesterday. The office, which is in the High Court Building in Queensway, will serve as a focal point of inquiries for all court-related mediation. “As the Judiciary has to maintain its independent and impartial position, mediation will not be provided by its staff but by accredited mediators to be appointed by the parties themselves,” the spokesman said. Secretary for Justice Wong Yan-lung is leading a cross-sector working group to promote mediation. A report is to be released for public consultation early this year. Technorati Tags: ADR, law, mediation

by Alan Scott Rau Can this possibly be right? For one thing, I would have thought that ordering the payment of a deposit should be a matter for the court, not the arbitrator: It seems to be a question of whether and how to “order the parties to arbitration in accordance with their agreement” under section 4 of the FAA—-not a question of the “procedure” for the arbitration. What if the respondent is challenging the very existence of an arbitration agreement? Do the arbitrators have to proceed to adjudicate that matter before they can turn to the question of whether they will be paid to adjudicate it? Cases like Howsam suggest that it is indeed up to the arbitrators to decide whether to go ahead in the absence of a deposit—but if they decide that they’re not willing to go ahead, it shouldn’t be up to them to order a recalcitrant party to pay the deposit. Leaving aside the obvious fact that asking the arbitrators to do this—to rule on whether a party is obligate to pay his fee up front— seems to present the arbitrators with a direct conflict of interest. And then, what does the court mean, anyway? The claimant has to be given the option of making the deposit if the respondent refuses—but I don’t see how the claimant can be actually ordered to do so; what if he just doesn’t wish to proceed on that basis? I would welcome the reactions of readers, in particular if they happen in their experience to have run across problems like this: How did they handle it? Alan Scott Rau is the Burg Family Professor of Law at The University of Texas at Austin School of Law. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and the author of several articles, including most recently “The Arbitrability Question Itself” (American Review of International Arbitration, 1999); “La Contractualisation de l’Arbitrage: Le Modele Americain” (Revue de l’Arbitrage, 2001), and “All You Need to Know About Separability in Seventeen Simple Propositions” (American Review of International Arbitration, 2003). He serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto, China University of Political Science and Law in Beijing, Willamette University College of Law, the University of Geneva; and the Universities of Paris-I and Paris-II. Some of Professor Rau’s scholarly papers may be downloaded at the Social Science Research Network. Technorati Tags: law, ADR, arbitration

Happy New Year from Disputing! We are pleased to share with you our 10 most popular blog posts of 2009: Texas HB 2256 Makes Possible a New Mediation Procedure for ‘Balance Billing’ by Holly Hayes (Jun. 29) Professor Alan Scott Rau Comments on In re Morgan Stanley (Jul. 15) Texas House Bill 2256 and Bad Faith Mediation in ‘Balance Billing’ by Holly Hayes (Aug. 5) Professor Alan Scott Rau Comments on Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Co. (Aug. 10) Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18) Defense Contractor Mandatory Arbitration Amendment Passes Senate (Oct. 13) GUEST POST: Mediating eDiscovery Disputes – Allison Skinner’s Brilliant Idea by Peter S. Vogel (Oct. 29) Nebraska Supreme Court Refuses to Compel Arbitration in Nursing Home Case (Nov. 4) Arbitration Fairness Act of 2009 – H.R. 1020 Gaining Momentum? (Nov. 11) 2009 U.S. Legislation on Arbitration and Mediation (Dec. 15) Technorati Tags: law, ADR, arbitration

by Holly Hayes Our August post on the “bad faith” mediation section of Texas House Bill 2256 (read more about the bill here) that requires the mediator to report bad faith mediation to the insurance commissioner or the Texas Medical Board, as appropriate, prompted our attention to how other states are addressing confidentiality in mediation. Texas operates under the Alternate Dispute Resolution Procedures (Chapter 154) of the Civil Practice & Remedies Code which provides in Section 154.053(c) that “[u]nless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” The Uniform Mediation Act (UMA) addresses confidentiality in Section 8 and has been adopted in eleven states: Nebraska in May 2003; Illinois following nearly a month later; with New Jersey, Ohio, Iowa, Idaho, South Dakota, Washington, Utah, the District of Columbia and Vermont more recently. The UMA has been introduced in five states: Nevada, Hawaii, Minnesota, New York, and Rhode Island. Two states rejected the UMA: Connecticut and Indiana. Eight states adopted similar bills: Delaware, Montana, Nevada, Oregon, Wyoming, New Mexico, and Florida. With respect to Massachusetts, Diane Levin from the Mediation Channel commented that “after reaching impasse in its deliberations, the mediation community here in the Commonwealth has agree to put discussions regarding the UMA on hold for now and will revisit it at a later date”. She gives a thoughtful overview on her blog about the Massachusetts experience as the state considered adoption of the UMA. (read more here) Diane also referred us to the “comments” made concerning the confidentiality section of the UMA. The UMA states that mediation communications are confidential to the extent agreed upon by the parties or provided by other law or rule of the state. As stated in the “comment” section by the Drafters of the UMA, expectations regarding the disclosure of mediation communication outside of the proceedings are complicated. Parties expect in most situations that communications during a mediation will not be discussed with others outside the mediation.Parties even may choose mediation to resolve their disputes to assure privacy of their issues and the related communications. However, those same parties may also expect, with good reason, that they can discuss what occurred during their mediation with family members, spouses and others without the risk of civil liability that might accompany an affirmative statutory duty barring such disclosures. The Drafters of the UMA, at one point, attempted to establish a comprehensive rule that would prohibit such disclosures, but found it impracticable to do so without imposing a severe risk of civil liability on the many unknowing mediation participants who might discuss their mediations with others for any number of reasons. (read more here) The provision of the privilege of confidentiality in the UMA is intended to promote full disclosure of the issues to the mediator and hopefully ensure a higher level of success for the mediation and greater satisfaction for the participants. Successful mediations are expected to promote greater community confidence in the mediation process resulting in more dispute resolution through mediation. Finally, Steven Mehta, at Mediation Matters also provided a thoughtful analysis on mediation confidentiality. (read more here) And Karin S. Hobbs’s article, “Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?“ is an excellent discussion on the importance of confidentiality in mediation. Technorati Tags: Healthcare, ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.