04 IN CONVERSATION WITH LUIS MARTINEZ
INTERNATIONAL ARBITRATION 1/3LY
AMEND ING T HE RUL E S : I DEN T I F Y ING PA R AME T ER S A ND FA C I L I TAT ING CH A NGE BRI AN Tell me a little bit about the process of amending the rules. Was there a consultation period? Howdid you go about actually identifying the primary areas to amend and how to amend them? Howdid that process work? LUI S We sat down a fewyears ago and identified transparency as one of the primary goals. Related to that, we knewwe also had to reflect the lessons we have learned regarding current best practices in relation to administration, saving time andmoney and of course expediting the processes which led to the expedited procedures. BRI AN It sounds like the subject areas developed organically over time, so it was not amystery 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. LUI S That is right. We kept track of ideas generated as a result of that dialogue andwe 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 andwe 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 twelvemonths, so we were waiting awhile 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 amonth—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 theywere 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 thenwe decidedwe 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. Muchof 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 howmuch detail to include.) After we confirm the appointment of the arbitrators we schedule a preparatory conference call with themwithin fourteen days. If we’re proceeding just on documents the process should be done within sixty days and an award should be issuedwithin thirty days fromeither 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. BRI AN That is great. Have you found parties calling you to inquire about this? LUI S Yes, we’ve had questions. Currently, there are three cases already pursuant to these rules, sowe are checking them andmaking sure the timeframe is working. We’re planning to interviewpeople 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 tomake sure that parties are aware of the benefits of themediation programand understand that they are going to be offeredmediation in every instance. Andwe hope that the possibility of a fee refund and the savings of time andmoney all serve tomotivate the parties to try tomediate their dispute. BRI AN 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? LUI S Yes, although it does fluctuate somewhat fromyear to year, it’s still not enough in the ICDR’s opinionwith respect to international cases. We still see parties who refuse it for the usual reasons—theymay see it as a delay to the arbitration or theymight have tried it before and got nowhere. I still don’t knowwhether people fully value or understand the potential benefits of mediation and howmuch time it can save. There’s a reasonwhymulti-nationals are includingmediation as part of their employment dispute resolution processes. BRI AN Inmy own practice, I find that mediation is better received now than it was ten years ago, at least with US clients. Clients fromother jurisdictions don’t always understand and they often reject it. Is this consistent with your experience? LUI S We aim to have clients as well as their attorneys on the administrative conference call and tomake 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 nowat mediation.org which is helping. We are also one of the founders of the International Mediation Institute, which vetsmediators 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 newmediation law.
T HE T REND F OR MED I AT I ON A ND I T S BENEF I T S F OR USER S
BRI AN The newRules also include new references to mediation. Can you tell us about those? LUI S Yes, of course. The rules nowalso contain a formal article that puts parties on notice that theywill receive an offer tomediate. Youmay not know this but, tomy knowledge, we are the only institution that actually has a refund schedule that contemplates amediated settlement, where for example if the parties reach a resolution or settlement in thirty days, we give
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