16 July 2011 The Business Case for Mediation (for “ICC Arbitration & Amicable Dispute Resolution – Focus on India”) Jonathan Leach, partner, Hogan Lovells Lee & Lee

2 Contents What is mediation and the main pros? How to get to mediation (including mediation clauses)? Where no such clause, relevant factors when deciding whether to mediate and how to suggest it? Do arbitral tribunals have a role to play in promoting mediation? Making the mediation a success

What is mediation? “Mediation is a low cost and flexible process conducted without prejudice and confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution” 3

Getting to mediation By a mediation clause in the contract By agreement between the parties By court recommendation/referral 4

Example mediation clause (in a multi-tier clause) ) In the event of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, performance, breach, validity or termination (a "Dispute"), directors or other senior representatives of the Parties with authority to settle the dispute shall, within [7] days of a written request from one Party to the other, meet to attempt to resolve the Dispute. 1.2) If the Dispute is not resolved at that meeting, the Parties shall attempt to resolve it by mediation [in accordance with [institution procedure]. Unless otherwise agreed between the Parties, the mediator will be nominated by [institution]. To initiate the mediation a Party must give notice in writing to the other Party requesting a mediation. The mediation shall take place in [Singapore] and the language of the mediation shall be [English]. 1.3) [Referral to arbitration].... 5

If no mediation clause: To mediate or not to mediate? Timing? Parties’ attitudes? Importance of maintaining working relationship? When is mediation not suitable? If no mediation clause, how to suggest mediation? 6

Mediation during an arbitration Do arbitrators have a role to play in facilitating settlement/promoting mediation? Should they enforce a mediation clause if it has not been followed? Should they provide a preliminary view on the merits? Can they also act as mediators? (ie “med/arb”) Agree the ground rules and obtain waivers of any subsequent challenge to the arbitrator or award 7

The mediation – making it a success Choosing the right mediator Preparation Representatives with authority Confidentiality Role of lawyers? 8

Thank you! 9

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