Here's a link to a short, edited interview that I did at the UNCITRAL meeting this week in New York.
UNCITRAL Interview
Friday, May 25, 2012
Tuesday, May 22, 2012
UNCITRAL ODR Working Group - Day Two
Early in the day, Amanda made the comment that it is ironic that the notes for the conference are being taken by hand on paper - at an ODR session.
There has been much talk of "access to justice" as a driving force behind the UNCITRAL ODR rules. The problem is that they are not talking about access to justice - they are talking about access to formal legal systems, which is a very different thing.
At one point, a delegate noted that 99% of the users of the ODR rules will not be affected by the status of arbitration (presumably because of the low value nature of the disputes), and that we "should just move forward." It's harder to do that than it would seem. I overheard a delegate complain that some language that encouraged use of the system and voluntary outcomes would, essentially, result in "changing the landscape of international arbitration." This is revealing. This discussion here is not, at base, about ADR or ODR - it is about preserving the existing judicial and arbitral systems. This isn't lost on everyone - one delegate finally noted that if one looks at the rules as rules for mediation/negotiation instead of rules for arbitration many of the legal issues go away. As another delegate said, "if this system is going to be successful, it will be used by non-lawyers." In a way, the tail is wagging the jackass - most of the cases in systems extant now, according to more than one delegate, are resolved in mediation, and do not go to arbitration. Arbitral rules and the national interests that surround them, should not compromise the ability to offer the option of mediation to consumers. It would be interesting to see what would happen if they divided the issue, setting language for mediation under ODR, and, separately, addressing arbitration.
One interesting note about these (Track I) proceedings is that they move from proposal to proposal (very positional) instead of putting the interests of the delegations out on the table and working from there - this is frustrating for a third party because it is easy to see a path to resolution. If the primary parties simply sat at a table and had their discussions guided by a third party most of the problems that have taken days to address could be done away with in a couple of hours.
It is interesting how the discussion can devolve into a text editing exercise with a room full of editors. The discussion also highlights the language issue - alphabetical in one language is not so in another. At one point there was a rather classic discussion about whether to use the word "award" or "decision." Again, this goes back to arbitration as the controlling idea - the NY convention uses award.
Overall, the day was a continuation of Monday, with the exception that the items on the table were a bit more terminological. It will be interesting to see if they get to the impact of ODR rules on consumer protection this week, and if so how they will stake out positions there.
There has been much talk of "access to justice" as a driving force behind the UNCITRAL ODR rules. The problem is that they are not talking about access to justice - they are talking about access to formal legal systems, which is a very different thing.
At one point, a delegate noted that 99% of the users of the ODR rules will not be affected by the status of arbitration (presumably because of the low value nature of the disputes), and that we "should just move forward." It's harder to do that than it would seem. I overheard a delegate complain that some language that encouraged use of the system and voluntary outcomes would, essentially, result in "changing the landscape of international arbitration." This is revealing. This discussion here is not, at base, about ADR or ODR - it is about preserving the existing judicial and arbitral systems. This isn't lost on everyone - one delegate finally noted that if one looks at the rules as rules for mediation/negotiation instead of rules for arbitration many of the legal issues go away. As another delegate said, "if this system is going to be successful, it will be used by non-lawyers." In a way, the tail is wagging the jackass - most of the cases in systems extant now, according to more than one delegate, are resolved in mediation, and do not go to arbitration. Arbitral rules and the national interests that surround them, should not compromise the ability to offer the option of mediation to consumers. It would be interesting to see what would happen if they divided the issue, setting language for mediation under ODR, and, separately, addressing arbitration.
One interesting note about these (Track I) proceedings is that they move from proposal to proposal (very positional) instead of putting the interests of the delegations out on the table and working from there - this is frustrating for a third party because it is easy to see a path to resolution. If the primary parties simply sat at a table and had their discussions guided by a third party most of the problems that have taken days to address could be done away with in a couple of hours.
It is interesting how the discussion can devolve into a text editing exercise with a room full of editors. The discussion also highlights the language issue - alphabetical in one language is not so in another. At one point there was a rather classic discussion about whether to use the word "award" or "decision." Again, this goes back to arbitration as the controlling idea - the NY convention uses award.
Overall, the day was a continuation of Monday, with the exception that the items on the table were a bit more terminological. It will be interesting to see if they get to the impact of ODR rules on consumer protection this week, and if so how they will stake out positions there.
UNCITRAL ODR Working Group - Day One
The UNCITRAL meeting is, technically, a "closed" meeting, which means that the only official communique from the Working Group meeting will be the report that goes to the main Commission at the end of the week. So, I won't comment on the source of any specific comments made during the session, but I will comment a bit on the general topics under consideration.
First, let me say that it is striking that, 15 years on, we are still talking about basically the same issues that leapt to the fore in the original discussion about ODR back in the 1990's: place ("where" a cyber dispute took place in terms of legal venue), and preservation of legal rights by the individuals involved in the dispute (as defined by the country of their origin). E-commerce sites, like eBay, resolved these issues by creating a parallel quasi-legal system based on a contract agreed to by the users of their system on the front end, so that where they were or what local laws said about their dispute were irrelevant.
Today, much time was taken up discussing language that would guarantee that citizens of countries that do not allow pre-conflict arbitration clauses would not be put in a position of signing away their rights by agreeing to ODR. And, much time was taken up with discussions of what "informed consent" means, and how it could be ensured. All of this occurred in the context of what several delegates repeated in terms of ODR - "ODR is a second best solution to these problems." The unstated assumption is that it would be much better to have a system of international law that would allow us to easily sue each other as a way to resolve disputes, rather than having to resort to alternative dispute resolution of any kind. The assumption behind all of the day's discussion is that there will be a set of ODR rules that may offer mediation, but which, if mediation does not work, culminate in an arbitral decision enforceable under the NY conventions.
The day was a good example of the not so smooth interface between Track I and Track II issues. The national delegates are protecting interests that focus on maintaining national control and maintaining the integrity of national legal systems, while some who see ODR as an extra-legal means of addressing a problem that the legal system cannot and does not address are pushing interests that have to do with speed, ease of access, and consumer protection. The two sets of interests do not mesh well.
For the most part, the debate is over something that is irrelevant. There are some issues related to arbitration of e-commerce disputes that are real, but the vast majority of e-commerce disputes that will be handled by an ODR scheme fall into the "high volume, low value" category. No citizen of an EU country is going to sue a seller in the United States over a 500 euro dispute, and no one is going to take a legal route to enforce an arbitral decision over a 500 euro dispute. But, again, the Track I and Track II interests do not mesh.
Not to be too cynical, at the end of the day there were congratulations all around for getting redrafted language for reconsideration of two paragraphs of a document that has been discussed for over a year, concentrating on a set of issues that, in the real world, are largely moot.
First, let me say that it is striking that, 15 years on, we are still talking about basically the same issues that leapt to the fore in the original discussion about ODR back in the 1990's: place ("where" a cyber dispute took place in terms of legal venue), and preservation of legal rights by the individuals involved in the dispute (as defined by the country of their origin). E-commerce sites, like eBay, resolved these issues by creating a parallel quasi-legal system based on a contract agreed to by the users of their system on the front end, so that where they were or what local laws said about their dispute were irrelevant.
Today, much time was taken up discussing language that would guarantee that citizens of countries that do not allow pre-conflict arbitration clauses would not be put in a position of signing away their rights by agreeing to ODR. And, much time was taken up with discussions of what "informed consent" means, and how it could be ensured. All of this occurred in the context of what several delegates repeated in terms of ODR - "ODR is a second best solution to these problems." The unstated assumption is that it would be much better to have a system of international law that would allow us to easily sue each other as a way to resolve disputes, rather than having to resort to alternative dispute resolution of any kind. The assumption behind all of the day's discussion is that there will be a set of ODR rules that may offer mediation, but which, if mediation does not work, culminate in an arbitral decision enforceable under the NY conventions.
The day was a good example of the not so smooth interface between Track I and Track II issues. The national delegates are protecting interests that focus on maintaining national control and maintaining the integrity of national legal systems, while some who see ODR as an extra-legal means of addressing a problem that the legal system cannot and does not address are pushing interests that have to do with speed, ease of access, and consumer protection. The two sets of interests do not mesh well.
For the most part, the debate is over something that is irrelevant. There are some issues related to arbitration of e-commerce disputes that are real, but the vast majority of e-commerce disputes that will be handled by an ODR scheme fall into the "high volume, low value" category. No citizen of an EU country is going to sue a seller in the United States over a 500 euro dispute, and no one is going to take a legal route to enforce an arbitral decision over a 500 euro dispute. But, again, the Track I and Track II interests do not mesh.
Not to be too cynical, at the end of the day there were congratulations all around for getting redrafted language for reconsideration of two paragraphs of a document that has been discussed for over a year, concentrating on a set of issues that, in the real world, are largely moot.
Sunday, May 20, 2012
UNCITRAL
I'm in New York for part of this week to participate in the 25th session of the UNCITRAL Working Group on ODR for international commerce. The agenda calls for the Working Group to: ". . . continue its work on the preparation of legal standards on online dispute resolution for cross-border electronic transactions . . . [and to] consider specificallly the impact of its deliberations on consumer protection." The group will report to the Commission on its work during this week. I'll post during the week about what's happening in the session.
Thursday, May 3, 2012
Groundviews, a ground-breaking project for citizen journalism in Sri Lanka, has begun a campaign called "Not In Our Name" to denounce religious violence.
The links to the "Not In Our Name" sites are:
http://groundviews.org/2012/05/03/not-in-our-name-campaign-update-and-video/
and
http://notinournamesl.wordpress.com/
(One may leave a comment at the second link.)
This statement is my addition.
It might seem strange that someone in the U.S., who has not, unfortunately, even visited Sri Lanka would have a comment about the religious-based violence that gave rise to “Not In Our Name.” But I’m just old fashioned enough, if that’s the right way to describe it, to think that the good and bad done for and to our brothers and sisters all over the world reflects on each of us, no matter where we happen to be geographically.
Most major religions have at their base a core of values that suggest kindness and tolerance. History has given us all the examples we could ever want of instances in which zeal and fervor have overshadowed tolerance, leading to some of the most ghastly human-on-human violence imaginable. To quote a religious figure who happened to have been Roman Catholic: “Though sometimes we have the feeling that what we do just means a drop in the vast sea, the sea would be less without such a drop.”
So, as my drop in the sea, here’s my declaration:
My name is Daniel Rainey, and no violence, persecution, or prejudice based on any religion, occurring at any time in any place, is done in my name.
The links to the "Not In Our Name" sites are:
http://groundviews.org/2012/05/03/not-in-our-name-campaign-update-and-video/
and
http://notinournamesl.wordpress.com/
(One may leave a comment at the second link.)
This statement is my addition.
It might seem strange that someone in the U.S., who has not, unfortunately, even visited Sri Lanka would have a comment about the religious-based violence that gave rise to “Not In Our Name.” But I’m just old fashioned enough, if that’s the right way to describe it, to think that the good and bad done for and to our brothers and sisters all over the world reflects on each of us, no matter where we happen to be geographically.
Most major religions have at their base a core of values that suggest kindness and tolerance. History has given us all the examples we could ever want of instances in which zeal and fervor have overshadowed tolerance, leading to some of the most ghastly human-on-human violence imaginable. To quote a religious figure who happened to have been Roman Catholic: “Though sometimes we have the feeling that what we do just means a drop in the vast sea, the sea would be less without such a drop.”
So, as my drop in the sea, here’s my declaration:
My name is Daniel Rainey, and no violence, persecution, or prejudice based on any religion, occurring at any time in any place, is done in my name.
Saturday, February 4, 2012
ODR Theory and Practice
I find myself wanting to post comments about a lot of things that I can't comment on because of my current position with the NMB, but I think I'm safe in saying that there's a new book out that I think is really great. Of course, I could be biased because I'm one of the editors, but you can judge that for yourself. The book is a 600 page compendium of the current state of ODR around the world, with chapters written by an international cross section of dispute resolution professionals who have been working in the ODR arena for the past decade and more. It is available in all the usual channels, including Amazon.com, to which one can find a link from the home page of my web site, http://danielrainey.us
Wednesday, November 16, 2011
Venues
This week I've been attending/observing a training session for lawyer/mediator/arbitrators offered by Cornell University's Industrial and Labor Relations (ILR) school. The course is called "Employment Law Mediator Training," and it has brought home to me how specialized some areas of ADR work are, and how little borrowing of ideas about third party work there can be across venues.
The venue in which the class is working, and hopes to work professionally, is mediation in employment law, where attorneys or HR directors make decisions about which mediator to hire, and where operating through caucus and shuttle diplomacy is the norm. There are two mantras for the week: "It's always about the money," and "If you don't settle cases you'll never get hired again." Both are probably quite apropos for the venue in which the class is operating, but it is notable that both are antithetical to much of what is taught about ADR outside the employment law arena, where it is often not at all about the money, and where it is an article of faith that not getting a deal is not a sign of failure. As my tuition for being allowed to sit in on the class, I have been asked to observe some of the mock mediations conducted by the students and offer comments about their performance. At one point, after I had said my piece, the instructor commented that I obviously came from a more "pure" ADR background than she. Aside from the fact that I don't think anyone has ever described me as "pure," I think it reveals a perception that may be common to lawyers who do employment law work: all the warm fuzzy ADR talk about consensual outcomes and interest based discussions is nice, but too academic to be of any use. It wouldn't surprise me, but it might surprise some of the employment law mediators, to find that parties and practitioners in other venues would find their directive, caucus based approach too narrow to be of any use. I've always considered myself to be eclectic in approach - paraphrasing one of my virtual mentors, Kenneth Burke, I'll use anything I can, from anywhere I can find it, to help me figure out what's going on and what to do about it. Given that attitude, I acknowledge the utility and usefulness of the methods that are used in employment law mediation, but I wish trainers and teachers could find a way to cross the lines created by specific venues to recognize and discuss the usefulness of techniques and approaches from multiple venues. It seems to me that employment law mediators could learn a couple of things from the rest of the ADR world - I know that in a couple of cases I have observed this week there were some very non-monetary items that could have had a huge impact on a party's willingness to settle - and the rest of the ADR world could learn a bit from the employment law mediators about how to approach entrenched parties and zero sum situations.
Another topic that came up during the class has me thinking about the advice we give students who are trying to break in to the dispute resolution field. The message this week has been that it's nice to network with your peers, but you really need to network with the people who make decisions about which mediator, if any, will be hired. Probably good advice, and advice that I probably have not passed along to students clearly enough.
The venue in which the class is working, and hopes to work professionally, is mediation in employment law, where attorneys or HR directors make decisions about which mediator to hire, and where operating through caucus and shuttle diplomacy is the norm. There are two mantras for the week: "It's always about the money," and "If you don't settle cases you'll never get hired again." Both are probably quite apropos for the venue in which the class is operating, but it is notable that both are antithetical to much of what is taught about ADR outside the employment law arena, where it is often not at all about the money, and where it is an article of faith that not getting a deal is not a sign of failure. As my tuition for being allowed to sit in on the class, I have been asked to observe some of the mock mediations conducted by the students and offer comments about their performance. At one point, after I had said my piece, the instructor commented that I obviously came from a more "pure" ADR background than she. Aside from the fact that I don't think anyone has ever described me as "pure," I think it reveals a perception that may be common to lawyers who do employment law work: all the warm fuzzy ADR talk about consensual outcomes and interest based discussions is nice, but too academic to be of any use. It wouldn't surprise me, but it might surprise some of the employment law mediators, to find that parties and practitioners in other venues would find their directive, caucus based approach too narrow to be of any use. I've always considered myself to be eclectic in approach - paraphrasing one of my virtual mentors, Kenneth Burke, I'll use anything I can, from anywhere I can find it, to help me figure out what's going on and what to do about it. Given that attitude, I acknowledge the utility and usefulness of the methods that are used in employment law mediation, but I wish trainers and teachers could find a way to cross the lines created by specific venues to recognize and discuss the usefulness of techniques and approaches from multiple venues. It seems to me that employment law mediators could learn a couple of things from the rest of the ADR world - I know that in a couple of cases I have observed this week there were some very non-monetary items that could have had a huge impact on a party's willingness to settle - and the rest of the ADR world could learn a bit from the employment law mediators about how to approach entrenched parties and zero sum situations.
Another topic that came up during the class has me thinking about the advice we give students who are trying to break in to the dispute resolution field. The message this week has been that it's nice to network with your peers, but you really need to network with the people who make decisions about which mediator, if any, will be hired. Probably good advice, and advice that I probably have not passed along to students clearly enough.
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