04 IN CONVERSATION WITH LUIS MARTINEZ
INTERNATIONAL ARBITRATION 1/3LY
AMENDING THE RULES: IDENTIFYING PARAMETERS AND FACILITATING CHANGE BRIAN Tell me a little bit about the process of amending the rules. Was there a consultation period? How did you go about actually identifying the primary areas to amend and how to amend them? How did that process work? LUIS We sat down a few years ago and identified transparency as one of the primary goals. Related to that, we knew we also had to reflect the lessons we have learned regarding current best practices in relation to administration, saving time and money and of course expediting the processes which led to the expedited procedures. BRIAN It sounds like the subject areas developed organically over time, so it was not a mystery to anybody. I suppose there was an ongoing dialogue with lawyers and other users about the things that needed tweaking and the things that were working fine. LUIS That is right. We kept track of ideas generated as a result of that dialogue and we were also keeping track of developments in the area. We have the ICDR’s divisional meetings at the end of every year to discuss issues that concern us and we also talk about future growth and key projects. The rules were one of the things that we were tracking. We don’t want to change the rules every twelve months, so we were waiting a while for the 2006 emergency relief article to have a good run—we’ve had thirty-nine cases using those rules, so far all with voluntary compliance and usually done within a month—but we also wanted to have a better feel for the application of the ICDR’s Guidelines on the Exchange of Information to see if they were achieving their desired effect and how to best position them in our international arbitration rules. The ICDR has one standing global international advisory committee. We ran the identified parameters by this committee and then we decided we should have subgroups to focus on particular tasks. The subgroups included the international expedited rules committee, the full arbitration rules committee and the last-best offer rules committee. Much of the information
The arbitrator still has to go through the process of conflicts and disclosures but everything apart from that is fast-tracked. In fact, we anticipate that, provided timeframes are adhered to, awards should be issued in 135 days from the date of filing. Typically in these cases we do not anticipate in-person hearings but the parties can by agreement opt for a hearing day and, of course, more hearing days when used in the larger cases. The process of appointing an arbitrator is aided by the fact that more detail is required in the initial filing to give the arbitrator an idea of likely issues and potential conflicts. (In a regular-track case, users can simply fill out the form, send us the clause, and self-determine how much detail to include.) After we confirm the appointment of the arbitrators we schedule a preparatory conference call with them within fourteen days. If we’re proceeding just on documents the process should be done within sixty days and an award should be issued within thirty days from either the closing of the final hearing or the last filed submission. The whole process, excluding extensions agreed to by the parties, has been targeted to conclude within 135 days. BRIAN That is great. Have you found parties calling you to inquire about this? LUIS Yes, we’ve had questions. Currently, there are three cases already pursuant to these rules, so we are checking them and making sure the timeframe is working. We’re planning to interview people after they have gone through the process to see what we can learn about how the rules were applied.
back fifty percent of our filing fees. We try to make sure that parties are aware of the benefits of the mediation program and understand that they are going to be offered mediation in every instance. And we hope that the possibility of a fee refund and the savings of time and money all serve to motivate the parties to try to mediate their dispute. BRIAN I read a statistic that something like eight to twelve percent of ICDR cases opt for mediation and, of those, ninety percent or so are settling. Is that about right? LUIS Yes, although it does fluctuate somewhat from year to year, it’s still not enough in the ICDR’s opinion with respect to international cases. We still see parties who refuse it for the usual reasons—they may see it as a delay to the arbitration or they might have tried it before and got nowhere. I still don’t know whether people fully value or understand the potential benefits of mediation and how much time it can save. There’s a reason why multi-nationals are including mediation as part of their employment dispute resolution processes. BRIAN In my own practice, I find that mediation is better received now than it was ten years ago, at least with US clients. Clients from other jurisdictions don’t always understand and they often reject it. Is this consistent with your experience? LUIS We aim to have clients as well as their attorneys on the administrative conference call and to make a strong pitch to foreign parties so they understand that it is not mandatory and that the parties have to reach a consensus: it’s not binding. We also have a separate website now at mediation.org which is helping. We are also one of the founders of the International Mediation Institute, which vets mediators using third parties and provides details of their qualifications and bona fides. It takes time but we are seeing changes. In Brazil, for example, there was little interest in talking about mediation ten years ago, but now they are working on a new mediation law.
THE TREND FOR MEDIATION AND ITS BENEFITS FOR USERS
BRIAN The new Rules also include new references to mediation. Can you tell us about those? LUIS Yes, of course. The rules now also contain a formal article that puts parties on notice that they will receive an offer to mediate. You may not know this but, to my knowledge, we are the only institution that actually has a refund schedule that contemplates a mediated settlement, where for example if the parties reach a resolution or settlement in thirty days, we give
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