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Welcome to the Andrews Dispute Resolution Podcast, where Susan Andrews reminds us to realize that we are peaceful when we live positively and proactively by the Latin phrase, Ex Nihilo Nihil Fit, which means, “Nothing Comes from Nothing”. So, if nothing comes from nothing, what is your something going to be? Follow Andrews Dispute Resolution through her periodic Podcast Episodes to find out. Now is the time to realize that peaceful place in you.
Susan Andrews 00:33
Hello, Everyone, this is Susan Andrews, and welcome to the Andrews Dispute Resolution Podcast Trailer. I created this trailer to welcome you to what will be my Podcast, which for anyone unfamiliar, is an episodic form of internet radio that will be available on-demand and which my visitors and subscribers will be able to conveniently access anytime via a variety of computer and mobile platforms. I plan to produce periodic Podcast Episodes providing pithy presentations illustrating the purpose of my Podcast, which is to realize that we are peaceful when we live positively and proactively by the dictim, Ex Nihilo Nihil Fit, meaning, “Nothing Comes from Nothing”. I am so passionate about this proverb that I made it part of my brand logo design and it informs my approach to dispute resolution. So, what does this proverb mean? As with all things, genuine resolution only comes from good faith and good work. I consider that the foundation of Refining Dispute Resolution, which is my tagline. So, if nothing comes from nothing, what is your something going to be? In my world of Refining Dispute Resolution, it means to choose good faith and good work in resolving or attempting to resolve your dispute. To choose good faith is to choose honesty and fairness and, of course, a lawful purpose. To choose good work is to choose engagement and commitment. In each Episode, I plan to present some aspect of the world of alternative dispute resolution in which I am involved in order to illustrate why or how I use these principles to guide people in dispute or conflict, with empowering neutrality, so that you can achieve a peaceful resolution.
Thank you for sharing this time listening to the Andrews Dispute Resolution Podcast, and remember to positively and proactively choose good faith and good work as your something. Remember to realize that peaceful place in you.
Episode One: The Singapore Convention: Breaking Down Barriers in a Blizzard
Welcome to the Andrews Dispute Resolution Podcast, where Susan Andrews reminds us to realize that we are peaceful when we live positively and proactively by the Latin phrase, ex nihilo nihil fit, which means nothing comes from nothing. So, if nothing comes from nothing, what is your something going to be? Follow Andrews Dispute Resolution through her periodic podcast episodes to find out. Now is the time to realize that peaceful place in you.
Susan Andrews: 0:33
Welcome everyone, I am honored and delighted to have Delcy Lagones De Anglim join me for my inaugural Podcast Episode! Delcy is a lawyer, she was born in Peru and lives in Australia, she speaks four languages, and has done extensive work globally in alternative dispute resolution, especially mediation, both in the private and public sectors, including the Australasian Dispute Resolution Centre and the World Bank. She was named International Mediator of the Year in Australia, and she also teaches and trains. Delcy is a Founding Director of the Executive Committee of the UNCCA, the United Nations Commission on International Trade Law, known as UNCITRAL, National Committee for Australia. The United Nations Convention on International Settlement Agreements resulting from Mediation, known as the Singapore Convention, is a very special project of hers, as she was involved in its negotiation and drafting from the very beginning. The Ministry of Law of Singapore elected her as one of the faces of the Singapore Convention because she brought the delegates together and facilitated compromises in the negotiations. She is the only face of the Convention who belongs to an observer organisation, LawAsia, and not to an official country delegation. Weve entitled Episode One, The Singapore Convention – Breaking Down Barriers in a Blizzard. And, before we get started, Delcy and I decided to have me provide a basic explanation of mediation as it pertains to international commercial businesses. Mediation offers significant advantages to international businesses in resolving their disputes, such as preserving their commercial relationships, a cost-effective dispute resolution process compared to litigation and arbitration, and providing the parties a voluntary and confidential process in which they have self-determination. In the context of mediation, self-determination is the control and informed consent the parties have over their outcome. The informed consent is based on a conscientious preparation and negotiation process that provides the parties the information they need to make informed decisions. So with that, it is my honor and pleasure to introduce Delcy Lagones De Anglim. Delcy, welcome to the Andrews Dispute Resolution Podcast and thank you for joining me.
Delcy Lagones De Anglim: 3:02
Thank you very much, Susan, for that kind introduction. And I am very honored to be the first person to do the podcast. And I think it is so important to start having discussions around mediation and, of course, today we will talk about the Singapore Convention.
Susan Andrews: 3:21
Thank you, Delcy. It is such a pleasure to have you here. Delcy, let us start our discussion with the spirit of the Singapore convention, specifically why and how it is suited for businesses throughout the business cycle, from international commercial contracting, to dispute resolution, to the enforcement of the mediated settlement agreement. This will provide a practical context for this significant development in international trade.
Delcy Lagones De Anglim: 3:47
Well, maybe we should start by talking about why businesses will benefit from a process which allows them to make decisions on their own. And, for the listeners who are business people or lawyers who advise businesses, they know that one core ingredient in conducting businesses is the fact that relationships that you form with other businesses or with your clients are the basis for the success of your business. So, when a conflict arises, and I said when not if because, in my experience, most businesses will end up with some kind of conflict, not necessarily with the outside actors, but also within businesses. So, it is important to recognize and acknowledge that when conflict arises, we do have a process that will allow us to resolve this conflict in a way that preserves or fixes the relationship that has been either broken or gone into a little bit of a pear-shaped situation. So, I believe that the more we learn about alternative dispute resolution methods that can help us to resolve this conflict amicably, then I think we are in a good space to fix these relationships. So, in that, of course, mediation, as you know, is one of the processes that has been used for a long time now, to resolve this type of conflicts. But, also, I have to say that mediation is not as new as we might think it is. If you think about cultures around the world, they all have some kind of amicable dispute resolution process, in the, you know, daily lives. What we have done, of course, is in the last 20-25 years, is to pick all the ingredients of these amicable methods to resolve disputes in these all cultures around the world, and put them in a more formal way. And, of course, we have, you know, the famous book “Getting to Yes” which sort of gives us a starting point about seeing conflict in a different light. And, Fisher and Uri, of course, the fathers of modern interest-based negotiation, are the ones who we have to thank for, in a sense, formalizing these concepts of interest-based negotiation. Yes, that is sort of the way that I see the importance of mediation, and how it is actually the best suitable process for businesses. And, as you said rightly, not only for resolving disputes, but once you learn the techniques of mediation, I think it is very useful to have those skills until next present when you are negotiating a contract. In fact, there is a process that is called deal mediation, which, in fact, does not have a conflict to be mediated, but it is about getting to a deal. So, that is why deal mediation should not be called deal mediation, but it is for some reason, but that is the way that mediation can be used from the birth of a contract throughout all the, you know, the implementation of the contract. And as you said, also, rightly, at the beginning, to the dispute resolution process, and to the enforcement of that mediated settlement agreement, now, with the birth of the Singapore Convention.
Susan Andrews: 7:56
Excellent. Well, it is fascinating because it is so practical, it applies to really the whole business relationship from, as you said, the negotiating to the problem-solving and decision-making, it really is practical, and then the Singapore Convention comes into play. Well, in my approach to the dispute resolution processes of negotiation and mediation, I emphasize the importance of good faith and good work, and I understand that when you were Working Group reached an impasse in the middle of a blizzard in New York, you agreed to negotiate under the Chatham House Rule, which resulted in an agreement that became the motor of the Singapore Convention. So, please set the stage on what happened in that meeting of delegates in the middle of that Blizzard and how the Chatham House Rule put this Convention on mediation in motion.
Delcy Lagones De Anglim: 8:48
Well, this is a very, I think, famous day for the Singapore Convention, because as you said rightly, that was the day where all of us sat in this law firm in New York and actually used mediation techniques to find an agreement, but I am going to set the stage a little bit as you asked. First of all, you know the UNCITRAL meetings, as you may know, the UNCITRAL is the United Nations Commission on International Trade Law. And, one of the objectives of UNCITRAL is to harmonize legal instruments to encourage fair trade around the world. So, this UNCITRAL, you know, the Commission, as we call it in short, meets twice a year, once in Vienna, in around August or September, and once in New York, in around February. Why do they choose February in New York, I have no idea because it is so cold. But, anyway, it is still New York, so. There are working groups, which have the task to address different issues. And, Working Group II is the one that is in charge of discussions about dispute resolution. And, the United States delegation made a request to the Commission in 2014 to work on a convention to enforce mediated settlement agreements. Then, of course, the work started, and the meetings started, as I said, once in Vienna and once in New York. And, it was an interesting first meetings, because I was the head of delegation for LawAsia, and, as you said, at the beginning, as well, one of the observer delegations, because in UNCITRAL you have the official sort of country delegations and the observer delegations, which normally are organizations that are experts in the subject matter of the discussions. So, there I was, one of the few mediators, full time mediators in these meetings, and my observations at the beginning were that there were not many mediators in the room. And, in fact, the discussions were centered into arbitration concepts and arbitration, you know, procedures. And, it was a little bit confusing, because I thought we are talking about mediation. But, anyway, so push forward two sessions more and we were finally discussing about conciliation because this was the word utilized in the UNCITRAL documents, not mediation. So, then again, there was another challenge about how are we gonna be talking about the same thing if we have different concepts about different things, you know, we know that we’re talking about mediation, but we’re calling it conciliation or amicable settlement processes, etc. So, apart from just drafting the Convention, I think it was an important process where there was almost a harmonization of concepts, as well, which I believe it is very, very important. So, setting up the scene about these, you know, delegations of different legal systems, different languages, different interests, as I said at the beginning, mostly arbitrators attending the meetings and so they were sort of a bit confused, what is happening here, then the diplomats, you know, the politicians, the lawyers, the academics, we did have a number of academics attending the meetings. So, it was really a very challenging first meetings, but, again, we got to 2018 in February, where we were actually advancing in writing the first articles of the Convention. And, by the way, we decided also to write, why not, a Model Law, because, you know, while we are writing the Convention maybe we should also write a Model Law, because some delegations were not interested in discussing a Convention for different reasons. So, we had a compromise of, okay, we have to satisfy everybody, so we started concurrently drafting the Convention and the Model Law. So, of course, then an additional challenge, but, of course, you know, we keep going, so back to February, on the Monday, Tuesday, Wednesday, we are sort of advancing a little bit, it is very cold, and on the Thursday, we had been discussing Article Five, as, as you will know, Articles Three, Four, and Five are the heart of this Convention, because we were discussing about enforcement of the mediated settlement agreements, not the recognition of the settlement agreements, but enforcement of them. So, we got stuck in Article Five. And, we were not going anywhere, we were going in circles, and, okay, we thought, we finished on the Wednesday and on the Thursday, we decided, okay, well, this is the day we have to make some progress, because, otherwise, you know, we were running out of days to have these discussions keeping mind that we have to finish on Friday at 5pm. So, Thursday morning arrives, huge blizzard in New York, everything is stopped, schools canceled, it is two meters of snow, nobody can do anything, we are stuck in the hotel, which is just over the road from the UN headquarters. Most of the delegations, we are in that hotel for convenience, of course, but there were other delegations.
Susan Andrews: 15:29
And, those offices were closed?
Delcy Lagones De Anglim: 15:31
Exactly. So, what do you do in a blizzard day in New York, of course, you normally stay indoors and watch telly or have some hot chocolate, but, you know, you cannot do that the whole day, and since we had, you know, this job to do, then we suddenly converge in the lobby of the hotel and this just wandering around and what to do and suddenly the idea of meeting in a nearby law office, which was kindly offered by one of the delegations came about and so they said, oh, shall we do it? Let us do it. So, it was not obviously all the delegations there because of the situation of the blizzard, but we tried to contact as many delegates as possible, and the ones who could arrive. So, then we made our way to the law offices and we sat there we were, I don’t know, maybe around 15 of us and only two full mediators in that room. Mr. Michel Kallipetis he is a friend of mine, an English mediator, and myself, and, of course, we did have all the delegations with their advisors who were very experienced mediators, but not necessarily full-time. Some of the delegations did have, obviously, officials with great experience in mediation, maybe another, the advisor for the Singapore delegation, Mr. George Lim, also, a good friend of mine, he is a full time mediator, in fact, considered the father of mediation in Singapore. So, I shall correct myself. So, there, not two, three of us, full-time mediators. So, that was the scene, Susan, for that famous day, and we started discussing Article Five. And, again, we were not going anywhere until we realized, Michel and I realized, this is almost like a mediation where the parties do not want to tell exactly what was happening for them, maybe we should put some confidentiality rules. But, of course, confidentiality rules might not apply because then we had to go back next day to present a report to the General Assembly. So, somebody very intelligently suggested, why don’t we use the Chatham House Rule, which means that, you know, we can tomorrow share the contents of this meeting, but we shall not disclose the names of the person or the organizations that made the suggestions. So, everybody was happy with that, and off we go.
Susan Andrews: 18:22
Delcy Lagones De Anglim: 18:23
Susan Andrews: 18:24
So, no identification of parties and no attribution to what was being said.
Delcy Lagones De Anglim: 18:29
Susan Andrews: 18:30
Excellent. This is a great setting. So, now we understand how the Chatham House Rule came into effect on this Convention, and, well, so for basic practical understanding of the Singapore Convention for international commercial businesses, can you briefly explain the role of the Model Law and the Notes, because you have mentioned the Notes when we have spoken before, and with the Convention, because they each serve distinct and interdependent purposes really?
Delcy Lagones De Anglim: 19:01
Sure. The Convention, it is a document that needs to be taken on its entirety. So, if a country decides to sign and ratify the Singapore Convention, they must do so without any changes, right? It is almost like if you go to a school, and they tell you this is the uniform you are going to wear, there is no negotiation about it, you have to wear that uniform.
Susan Andrews: 19:28
It is all or nothing.
Delcy Lagones De Anglim: 19:31
Exactly. And the Model Law is exactly that. It is just a model of a set of rules that countries can adopt and adapt according to their needs. So, you know, it is one of these very sort of free schools where you can actually use a little bit of this and a little bit of that according to what suits you best. So, that is the Model Law, but both sets of instruments have the same principles, which is that they make concepts about what is mediation, what the extent of these instruments are, and in differentiating them, of course, the Convention is, as I said before, gives you very strict rules, you know, there are 16 articles that need to be, you know, complied with, and it tells you exactly what kind of disputes can be used in this Convention.
Susan Andrews: 20:33
Yes. And, could you just specify what those are?
Delcy Lagones De Anglim: 20:37
Sure. It has to be an international commercial dispute, so it cannot be applied to family or property or, you know, other types of disputes, it has to be, according to the Convention only international commercial disputes as defined in the Convention.
Susan Andrews: 20:56
And, do they have to be cross-border where they are in two separate states? Yes, the concept of international is basically to suggest that the businesses need to have either different seats, addresses or come from different countries where there is, in fact, and I am going to read it in order to not make a mistake. It says that the international part of it is about at least two parties to the settlement agreement have their places of business in different states, or the state in which the parties to the settlement agreement have their places of business is different from either the state in which a substantial part of the obligations under the agreement is performed or where the subject matter of the agreement is most closely connected. So, that is the definition of international for the purposes of the Singapore Convention. And, of course, as I said, it does not apply to personal family or household purposes, or employment disputes. So, it is just commercial and international aspect, this definition. The Model Law, of course, has the same ingredients, but it gives states the flexibility to apply it on its entirety. Some governments actually do that, they adopt the full Model Law, especially countries that do not have any legislation about mediation, that is a very easy thing to do. But others, of course, if they already have some type of legal framework, then they will adapt the Model Law according to their needs. And, the Notes, this is a very important thing that you mentioned, because in the absence of a harmonized mediation legislation around the world, but also in regards to concepts, and also in regards to accreditation of standards of mediators, we did not have much on that. So, it was decided that the Notes that normally accompany this type of negotiation should be also an important point in interpreting both instruments, the Model Law and the Convention. So, we have these extensive Notes, which tell you exactly, for example, you know, how do you terminate the mediation, how do you draw up the settlement agreement, how do you choose the mediator. But, of course, these Notes are not, you know, enforceable, in a sense, they are just like a guidance for the Convention, as well as for the Model Law. And, the same with the travaux preparatoires. You know, these are the notes that accompany the negotiations, and they also need to be taken into account. But in this case, the Notes have been extensively, you know, written and prepared by the Commission, in such a comprehensive manner, that if there are any doubts, you know, I would suggest that people go to these Notes, by the way, it’s all in the website, in the UNCITRAL website. Yes. They work together. They really are interdependent sources. And, what about the status of the signers versus the ratifiers, the states that have accepted this treaty?
Delcy Lagones De Anglim: 24:29
Well, I’m gonna generalize here because there are some jurisdictions that work in different ways. But in general, in international law, when you sign a convention, it is basically your commitment to consider the ratification of the Convention. So, it is not enforceable yet, it is not part of the domestic legislation yet, until the state ratifies the Convention. I always make the example of marriage proposal. So, if somebody proposes marriage to you and gives you a nice ring and everything, that is signing the Convention. But, the marriage has not occurred yet. So, until you ratify, you are not married.
Susan Andrews: 25:17
Well, digging a little bit deeper about the delegations, it has been too common that lawyers and their clients have undermined alternative dispute resolution, such as arbitration and mediation, through implementation that reflects the higher conflict, complexity, and costs in litigation that ADR, specifically mediation, is intended to reduce. So, this tendency, which continues today was evident among the delegations representing the various stakeholders of the Singapore Convention. Could you please describe the dynamics with those delegations? And you mentioned they included special interests, politicians, diplomats, lawyers, arbitrators and, ironically, very few mediators. And, yet, this is a Convention on mediation.
Delcy Lagones De Anglim: 26:05
Yes, but I think we have to understand first that, although mediation seems to be very common these days, in a sense, there are still a lot of members of our legal profession that do not know about mediation. They have heard probably the word, but they do not know exactly what it is, and how it is different from arbitration and other forms of alternative dispute resolution. This was brought up by a judge here in Australia, when we had a seminar, two, three years ago. And, he said that he was absolutely shocked that Queen councils appearing in front of him, and this is in a commercial court, had no idea about the difference between mediation and arbitration. And, I am talking about three years ago.
Susan Andrews: 27:02
Isn’t that something .
Delcy Lagones De Anglim: 27:03
Well, so, that is the first thing, I think we have to do more work about sharing the concepts of mediation and how it differs from other forms of alternative dispute resolution. And, then, of course, you have initiatives of a lot of law schools now, I mean, 10 years ago, it was crazy, you know, why would you teach future lawyers about alternative dispute resolution, that doesn’t make sense, you know, lawyers make money as litigators. Well, no more, lawyers now have to have a bigger toolbox. And, since mediation now is becoming more popular, for obviously obvious reasons, as you mentioned, it, it is cost-efficient and it is, in fact, not solely cost-efficient. For me, the attraction of mediation is about giving the parties in conflict an opportunity to talk to each other, to clarify issues, to clarify, you know, misunderstandings, and then to come up with solutions or ideas that will get them to the future. And, so this is completely different from a third, you know, party coming to adjudicate or to make the decision for them. So, I think for me more than the cost-efficient part, it is about, that it is about party autonomy, it is about parties taking charge of their…
Susan Andrews: 28:45
Delcy Lagones De Anglim: 28:47
Exactly. I think that is, in a sense, what we have to share with, you know, with everybody. If you think of the birth of mediation, it didn’t come with international fancy cross-border, you know, disputes. It sort of started, probably in a little community somewhere, you know, as I said, before, you know, they have been mediating for ages. In China, I was in China and in Vietnam some time ago and the numbers of community mediators, I mean, they do not have the certificate, or the 40-50 hours training, but for all intents and purposes, these people are genuine mediators, resolving conflicts within their communities.
Susan Andrews: 29:33
That is what they are doing.
Delcy Lagones De Anglim: 29:34
Right. I think I am lost a little bit in the question.
Susan Andrews: 29:38
No, no, this is excellent. No, we were covering some good ground here. So well, really, so then back to the dynamics with those delegations, I mean, you were dealing with sort of a mediation or a negotiation within your environment there. How were you dealing with all these competing interests? It’s complicated, and so few mediators.
Delcy Lagones De Anglim: 29:59
Sure, it was an interesting dynamics, as you said, because everybody in the room, especially the country delegations, the official delegations, have instructions, right? So, each country is there because they want to protect their own interests. And, you will have sometimes delegates who are academics or who are, you know, representatives, officials from the government, others will be the diplomatic representatives. So, it was a cohort of different interests, but sort of trying to point all to the same direction, but it was not known, which often happens in mediation, is that they still do not know, the real interests, you know. They think they are there for something, but they are, in fact, they are not.
Susan Andrews: 30:51
Just like in a dispute in mediation.
Delcy Lagones De Anglim: 30:54
Exactly. So I made it my job, actually, in the coffee breaks, to discuss with the delegations that I felt did not have enough expertise in mediation, and I would just approach them and then have coffee and have a chat. And, gradually, I found myself being invited by coffees and lunches and everything, because they were genuinely interested in the differences. You know, some big delegations would come to me and say, can you tell us the difference between conciliation and mediation? We are not clear about that. And, others will say to me, and how about, you know, the arbitral proceedings in this? And no, no, no, this is not arbitration. This is mediation, you know, and that kind of thing.
Susan Andrews: 31:37
Excellent. That is wonderful. Delcy. Sort of surprising, is it not?
Delcy Lagones De Anglim: 31:42
Of course, but you have to remember that in these international meetings, you have not only these, you know, different approaches and interests from different people from different actors there, but also they come from different legal systems, they come from different cultures, they come from different languages. Yes, we were working mainly in English, of course, the different dynamics and the different interests, of course, of all the delegations, including the observer delegations, of course. I think you are right. It is 2018, I belive, but we can And, so you can imagine the complexity of just coming to an agreement of 16 articles, because, if you think of it, this convention is just 16 articles. And you may think, for our colleague lawyers out there, you would think, oh, well, you know, we can, you know, close this in one day, for sure, even in a morning if we work hard enough. But, we finished it in 2018. So February 2018, was the time when the Convention and the Model Law were finally drafted. And, I also remember now that we probably did not finish. How what happened with the blizzard day, we were all so excited about it, but just to finish that thought, in fact, it was not 2018 it was 2017, I think. Well, I am confused now, Susan. double check. And, I was there. But, anyway, so this is what old age does to you. Sometimes you do not remember things clearly.
Susan Andrews: 33:18
It was a long haul.
Delcy Lagones De Anglim: 33:20
It was, it was for sure. But we finished Article Five on that blizzard day, the group presented the Articles agreed and compromised the next day. And, that is how we finished those important three, four and fifth Articles of the Convention. But, yes, so retaking this issue of the complexity of the dynamics, of course, at the end, as we have discussed before, it was more or less a mediation process in itself, because you had the confidentiality, well, the Chatham House Rule, more or less, and then you had the active involvement of the different delegations, almost becoming friends with each other, trying to share ideas outside the main meetings and coffee breaks and lunches and dinners. For the first time I attended the ice hockey in New York, between a Canadian team and a U.S. team. And, we were many delegations that night. And, it was interesting because, even then, at the ice hockey event, we were discussing about the different Articles that we will probably be doing the next day.
Susan Andrews: 34:35
Was this on Thursday night, was the hockey game on Thursday night?
Delcy Lagones De Anglim: 34:39
No, I think we did it actually on a Wednesday. I think it was a Tuesday or on a Wednesday before that blizzard, that famous blizzard day.
Susan Andrews: 34:47
Oh, yes. Wow. Well, it is just fascinating, and why do you think there was such an impasse at Article Five?
Delcy Lagones De Anglim: 34:54
Well, because that is about the heart of the Convention, it is about enforcement. And, how do you make a framework for enforcement that satisfies all the countries involved. And, it is not just about that we all agree that it is a good idea, but it has to also make sense to your own domestic legislation. And, it has to make sense in the language. So, to give you an example, we were discussing, I do not know, it was one, one of the parts of Article Five, and it did make sense to all languages, but except to Arabic. And, then we had to change the word and it did not make sense in French. And, then it did not make sense in another language. So, we had to constantly change. It is not just about agreeing on the idea, it was about agreeing on the words that will make at the end sense…
Susan Andrews: 35:55
The terminology, yes.
Delcy Lagones De Anglim: 35:57
…in each language, but also in each legal jurisdiction.
Susan Andrews: 36:00
That is fascinating. Yes.
Delcy Lagones De Anglim: 36:02
So, that is why it was not just about we did not agree. In fact, we did agree on a lot of things very quickly, but it was about setting the right wording. And as a lawyer, you know, these words will become really, you know, the basis for everything that you can do and cannot do with a legal instrument.
Susan Andrews: 36:24
That is right. Well, that is an excellent segue to our last topic, because speaking both about negotiating the Singapore Convention and generally about ADR, the boat metaphor seems to suit the situation in which lawyers resistant to ADR first jumped on to the arbitration boat, then onto the mediation boat, accompanied by arbitrators resistant to mediation. So what would be your perspective on this boat we are all on together?
Delcy Lagones De Anglim: 36:53
Well, first, I think I have to say that arbitrators and litigators should not be very scared about mediation at all.
Susan Andrews: 37:03
Delcy Lagones De Anglim: 37:05
I do not think I exaggerate in saying that mediation it is not useful for all disputes. And, there are a lot of instances where you have to make an assessment and say, this dispute cannot and will not be, you know, mediated, for many reasons. And, maybe you can do a podcast for this about a different time. But, there are many reasons why you should not mediate.
Susan Andrews: 37:35
Delcy Lagones De Anglim: 37:36
But, then, of course, you have the options of litigation or arbitration. So it is not about you know, everything is going to be mediated now, I think it is the wrong perception of arbitrators and litigators, thinking that mediators we are gonna take their, you know, their money from them. This is not true. I think it is just one more tool in the toolbox of all of us, who work in an area where the main objective is to help our clients. And, in order to do that, you know, it is like a doctor, you know, you go to a doctor, and then they make a diagnosis of something, and then they give you some ideas of different treatments. And, if you do not like that doctor, then you go to somebody else. It is exactly the same thing. So, in my view, this analogy of the boat, and I think I used something similar in Hanoi, actually, in 2013, when the New York Bar State Association had their spring meeting, you know, they always like doing it in these very nice places, I am telling you. This one in Hanoi was one of the best conferences I have ever attended in my life, I can say that. And, I did say that, and I had a boat finishing my presentation about the development of mediation globally. I had a little boat, which had two people, you know, sitting on the opposite sides of the boat, and I do not know the terminology, but they were rowing, you know, to their own ends, obviously, they were going in circles, they were going nowhere.
Susan Andrews: 39:18
Delcy Lagones De Anglim: 39:19
Yes, so but then the last drawing that I had was a boat where two were looking at the same direction and rowing at the same direction. And, I think for me, as a dispute resolution practitioner, you know, which I have to reveal I was in love with arbitration initially, you know, when I finished university, but it is a very established process, very familiar with a lot of our colleagues, and very successful. But, now we have this other method that also provides a lot of benefits for our clients. So, I think we need to recognize the different roles that we can provide in the dispute resolution theme and have respect for each other. You know, I do not see why we should be, you know, rowing to different directions or trying to put down mediation or arbitration or whatever. Every dispute has its own dispute resolution process, a sui generis one, it is tailor-made, whatever word you want to use, but it is about making that assessment and saying that this is, you know, and yes, you are right, we are all in the same boat.
Susan Andrews: 40:36
Yes, we are.
Delcy Lagones De Anglim: 40:36
I just hope that we can all have this conversation more often, like, you know, this podcast, for example, is an excellent way, you know, and I congratulate you Susan for doing this, because this probably we give them a little bit more information about what it is and what it is not. And, you know, maybe I might have not made sense in a lot of instances, but I am very enthusiastic about mediation and about settling, you know.
Susan Andrews: 41:07
I am, too.
Delcy Lagones De Anglim: 41:09
And, I think we have a lot of work to do. And, we can only achieve things if we work together as a team. It does not make sense to, you know, there is already too many fightings in the world to now start fighting, you know, litigators and arbitrators and mediators. It just does not make sense to me.
Susan Andrews: 41:24
Yes, it is absurd. Well, I appreciate the analogy of the boat. And, I agree with you, we are all interested in dispute resolution, and the partyies’ interests come first. And, it is an assessment we make, well, they make with our assistance, you know, which process or processes are most suited for their dispute resolution. Well, Delcy, thank you, again, for joining me for this first Podcast Episode, and for sharing your knowledge, experience, insights, and wisdom regarding the Singapore Convention, and the difference that can make for international trade and the mediation process.
Delcy Lagones De Anglim: 42:07
Thank you so much, again, Susan, for the kind invitation. I am really very honored that I am the first one. I am sure there are going to be many more guests coming and talking to you about this important topic about mediation. But, if I may say, so I think we left Article Five hanging. Sorry about that. But, just to let our listeners, your listeners, to know that Article Five is about grounds for refusing to grant relief. So, and this is, that is why it took us such a long time to agree.
Susan Andrews: 42:40
That is was why it was so difficult.
Delcy Lagones De Anglim: 42:42
Exactly. And, the only reasons why a court would actually refuse to grant relief, and that is why it was important. So sorry about that.
Susan Andrews: 42:51
Well, that is critical. No, not at all. It is a critical aspect of the Convention, and highly relevant. No, I am sure that we will do another Podcast Episode on this and other subjects, Delcy. I appreciate you joining me.
Delcy Lagones De Anglim: 43:06
Well, thanks again, Susan, really, and congratulations on this one. Thank you.
Susan Andrews: 43:11
Thank you, see you soon.
Thank you for sharing this time listening to the Andrews Dispute Resolution Podcast. And, remember to positively and proactively choose good faith and good work as your something. Remember to realize that a peaceful place in you.