Click here to download the mediation 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 10 jurisdictions are covered in this report:

Austria; Brazil; Germany; Hong Kong; India; Italy; Nigeria; Romania; Spain; United States.

Questions

The set of questions relating to the topic of mediation and answered by the guide for each jurisdiction covered include:

Law and policy

• • Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?
• • What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?
• • Are there any domestic laws specifically governing mediation and its practice?
• • Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?
• • To what extent, and how, is mediation encouraged in your jurisdiction?
• • Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?
• • How common is commercial mediation compared with litigation?

Mediators

• • Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
• • What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
• • Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
• • How are mediators appointed?
• • Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
• • Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
• • Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?
• • Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?
• • Does commencement of mediation interrupt the limitation period for a court or arbitration claim?
• • Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?
• • Are mediation proceedings strictly private and confidential?
• • What is the likelihood of a commercial mediation being successful?

Settlement agreements

• • Must a settlement agreement be in writing to be enforceable? Are there other formalities?
• • In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?
• • Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?

Stay in favour of mediation

• • Must courts stay their proceedings in favour of mediation?
• • Are there any distinctive features of commercial mediation in your jurisdiction not covered above?