On 28 October, the 6th Annual Forum hosted by CIETAC Hong Kong Arbitration Centre, fellow members and practitioners gathered on a Sunday afternoon in anticipation of a live debate on Med-Arb and a mock demonstration of the Med-Arb process.
Following motions for debate by the moderator, Mr. Madhav Kumar, Mr. John Lee, member of the Arbitration Committee of the Law Society, outlined key benefits of the hybrid dispute resolution method. Med-Arb aims to combine elements of mediation and arbitration. Potential advantages include among others promotion of amicable settlement by the parties at the mediation phase, preservation of business relationships and greater “buy-in” by disputants to any settlement or award. Even if mediation does not conclude in full settlement, typically the range of issues to be resolved in arbitration would be narrowed and the same neutral would have greater familiarity of the matter. Any settlement may be converted into a consent award for enforcement under the New York Convention (nb proposed Singapore Convention on Mediation).
On the other hand, Ms. Winnie Tam, SC and Dr. Colin Ong, QC usefully reminded delegates about the potential risks and pitfalls of Med-Arb, which may include among others risks of lack of due process (e.g. depriving a party the opportunity to respond to what was said in mediation) and impartiality where the same neutral becomes the arbitrator (information received in caucus and unconscious bias, etc.). Other risks include possible challenge to the arbitrator and award should relevant grounds be shown. On the empirical side, Professor Dr. Shahla Ali presented the results of interesting research into this area. In line with the theme, the popularity of Med-Arb under the “Oriental Experience” was also discussed.
In all, the Forum was well received given the delegates who stayed beyond the scheduled time and lively Q&A session. Going forward, the event highlighted the need for more training, skilled Med-Arb neutrals as well as experienced representatives. With better appreciation of different process models and cultural heritage, together with more proactive management of risks such as informed consents and other controls, users would be in a better position to optimise the potentially greater efficiency and economy of the Med-Arb process in suitable cases.
Reported by: John Lee