Point of View............................................................... Commercial Mediation from the Perspective of Foreign Lawyers.
Published:
2020-10-21
"Law is a complex art, and the more complex it is, the more expensive it is". From the perspective of most lawyers, an international arbitration case currently charges much more than mediation.
Why do foreign lawyers do mediation? How to start mediation?
1. International Commercial Mediation from the Perspective of Demand
The development trend of commercial mediation in the global scope
From a macro perspective, the demand for commercial mediation services is expanding globally. Extraterritorial commercial mediation legal services have a long history, and European and American countries lead the international commercial mediation market.
The development prospects of international commercial mediation in China.
China signed the New York Convention in 1985, and China's Arbitration Law came into force in 1995. By 2018, there were 255 domestic arbitration institutions, and the number of arbitration cases in the 2018 year exceeded 540000. In 2019, when China signed the Singapore Convention, the author believes that the performance of commercial mediation in the domestic market in the next decade is worth waiting to be seen.
In the recent SIMC released overseas customer data, Chinese parties accounted for a large proportion of the customer base. From the data of extraterritorial mediation institutions, China's international commercial mediation market demand is very considerable.
2. kind of case is more suitable for mediation?
1. Take the success rate of customer discovery as the standard: first of all, the two years before the signing of the contract are the "honeymoon period", and the probability of breach of contract is relatively low; In the later stage of cooperation, mediation can be used to promote the two parties to create new cooperation methods and duration in the settlement agreement, so as to resolve the conflicts in a targeted manner (in the absence of winning or losing parties, the frequency of submission for enforcement is relatively low); it is worth noting that in the stage of litigation, mediation and litigation can also be introduced in a timely manner according to the intensity of the dispute between the two parties to achieve dispute resolution.
2. The duration of a mediation case from submission to completion is generally kept within one month, while the average period of arbitration cases is more than one year, and the lawyer's fee for large cases is generally more than six figures. After the settlement agreement is given enforcement power, the combination of arbitration and mediation is used in the case, and the way to solve the problem will be more used.
3. In addition, under the new crown epidemic, many early contracts agreed on dispute resolution clauses as arbitration and litigation, but this does not mean that mediation cannot be applied to resolve disputes. The premise of mediation is (and only): the consent of the parties. As long as the fact that "the parties have reached an agreement" exists and can be proved, the dispute can be resolved by mediation.
4. Finally, when we talk about foreign-related commercial disputes, we should clarify what the so-called "foreign-related" means. Commercial disputes involving Hong Kong, Macau, and Taiwan are also subject to the resolution of international commercial disputes to the extent that they are not expressly provided for in domestic law.
3. Commercial Mediation & SKILLS
Needless to say, to achieve long-term source maintenance, we must first stand the consideration. Lawyers in international commercial mediation face clients, especially large clients, the ability to screen lawyers is very strong.
The international requirement for mediators is generally "senior": mediators are required to have at least 3-5 years of mediation experience and participate in mediation of more than 30-50 cases. As of 2020, SIMC Singapore has more than 80 mediators from 15 courts, highlighting the mediators' extensive mediation experience. In addition, the mediation skills, court hearing skills, cultural literacy and language expression skills accumulated by individual legal practitioners in their practice are also indispensable.
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