Standards and professionalism in cross-border mediation

Why is it important to have common standards in a cross-border mediation? What would be the impact on the mediation session and its outcome where co-mediators conform to different standards?

Ms Josephine Hadikusumo , Director & Principal Mediator, Asia Mediation Centre (AMC), confronted these issues in the webinar, “Ensuring Quality in Cross-Border Mediation: The Place of Standards” which was organised in conjunction with the Singapore Convention Week 2023. The information in this article is taken from Ms Hadikusumo’s presentation on “The issue of standards and professionalism in cross-border mediation”.

Ms Hadikusumo began by defining what was meant by “standards”. Standards could refer to, firstly, an acceptable level of qualification of a mediator; secondly, an acceptable code of conduct governing the process and quality of a mediation; and thirdly, a specific approach that considered the style of the mediation which may differ from centre to centre, or from culture to culture and whether different styles could constitute a common standard.

She noted that while standards abound across countries, courts and centres, there was currently no universally accepted global standard, and several individual mediation centres impose their own standards with variance based on nationality, culture, legal setting, mediation style and preference.

There was, therefore, a diversity of approaches when it came to mediation, and Ms Hadikusumo highlighted several potential issues that could arise from this diversity. Firstly, different standards would inevitably lead to differing interpretations and applications of these aforementioned standards, which would be extremely relevant in cross-border mediations. Secondly, the different standards could potentially cause uncertainty for first time users of the mediation process. Other potential issues she highlighted included the mismatched expectations between the mediator and the mediating parties, as well as the incongruence of mediation approaches by two mediators in a co-mediation.

Notwithstanding that, Ms Hadikusumo posited that Articles 5(1)(e) and (f) of the Singapore Convention on Mediation might provide some guidance as to some form of minimum standards that could be applicable to all cross-border mediations around the world. These particular SCM provisions centred around a “serious breach by the mediator of standards applicable to the mediator or mediation … that raise justifiable doubts as to the mediator’s impartiality or independence”. The phrasing of these provisions assumed a certain presence and adherence to a set of standards but did not stipulate which “standards” were being referred to. This entailed some form of flexibility on what exactly these “standards” were.

Despite the absence of common standards, Ms Hadikusumo noted that there existed common elements of a mediation across countries and centres such as self-determination, neutrality/impartiality, confidentiality and competence of the mediator. However, there was still great variance on the qualifying pathways for someone to become a mediator in different institutions.

Ms Hadikusumo felt that mediation organisations could forge their own paths in this aspect by forming alliances for mediation standards, similar to what the five member organisations of the Alliance of Organisations for Mediation Standards had done. By harmonising their standards, this created uniformity of standards across the organisations which would ultimately benefit users of mediation. She also strongly championed for mediator training to be made mandatory, as was required by the Alliance, to ensure the competence level of mediators and to avoid a clash of standards in a situation which involved co-mediators from different organisations or jurisdictions.

Ms Hadikusumo is also a SIMI Board Director.

Alliance of Organisations for Mediation Standards

The Alliance of Organisations for Mediation Standards is a collaboration between five mediation bodies based in France, Hong Kong SAR, Malaysia, Portugal and Singapore. Formed in April 2021, these like-minded bodies seek to uphold high standards in the provision of mediation services and promote the use of co-mediation in partnership with mediators in different centres. The five members of the Alliance are:

? The Asia Mediation Centre (AMC)

? Instituto de Certifica??o e Forma??o de Mediadores Lusófonos (ICFML)

? Institut Fran?ais de Certification des Médiateurs (IFCM)

? The International Dispute Resolution and Risk Management Institute (IDRRMI)

? The Singapore International Mediation Institute Limited (SIMI)