Eric van Ginkel

THE UNCITRAL MODEL LAW ON

INTERNATIONAL COMMERCIAL CONCILIATION: A CRITICAL APPRAISAL

I.  Introduction.

Already in the late 1970s, the increase in the world-wide use of ADR in general, and mediation or conciliation [1] in particular, led to the desire to create uniform rules that govern the process of international commercial mediation [2].  As a result, the United Nations Commission on International trade Law ("UNCITRAL") adopted the UNCITRAL Conciliation Rules by General Assembly Resolution 35/52 on December 4, 1980 [3].

After an impressive increase in the use of mediation during the 1980s, the 1990s experienced an explosive growth in both domestic and international use of mediation. [4]  The growth of international mediation may be attributable, at least in part, to an increased feeling that international commercial arbitration had become too cumbersome and often presented certain inherent obstacles. [5]  Many businesses engaged in international commerce perceived that arbitration had become too lengthy, too costly, and too adversarial [6], particularly when the amount likely to be in dispute was small in relation to the legal fees each party could expect to incur or when the parties to a dispute wished to preserve cordial business relationships.  In contrast, the awareness grew that mediation was neither costly nor lengthy and much less adversarial than arbitration, and that, in addition, mediation, being a process that is non-adjudicative, presented advantages such as parties’ control over the outcome, opportunity for open dialogue between the disputants, minimal procedural issues and the possibility of developing creative and mutually acceptable solutions. [7]  Not unimportantly, businesses realized that mediation often allowed the parties to continue having beneficial business relationships. [8]

Over the last twenty years, many states of the United States [9] and a good number of other countries [10] have adopted legislation to deal with some of the most pressing issues concerning mediation.  In many of these states, as well as in some other countries, this legislation was adopted in a hodge-podge manner, resulting in what began to look like a confusing quilt of laws that create different rules for all the different areas in which mediation or conciliation is supposed to take place.  In France, for example, the state of affairs has been characterized as "a hold-all covering up a disparate series of different systems with the purpose of settling disputes other than by a judgment or arbitral award." [11]  Before 1998, the mediation rules of California were spread over seven different California codes [12] until, effective January 1, 1998, California adopted a comprehensive statute on mediation as part of the Evidence Code [13], restating and adding to the existing legislation.  When in August 2001 the National Conference of Commissioners on Uniform State Laws approved the Uniform Mediation Act, the drafters noted that at that time legal rules affecting mediation could be found in more than 2500 statutes in the United States [14].

In 1998, on the occasion of celebrating the fortieth anniversary of the New York Convention, [15] the members of UNCITRAL considered that the time had come to investigate the possibility of adopting internationally harmonized legal solutions designed to facilitate conciliation, perhaps in the form of a Model Law, to deal with issues relating to international commercial mediation that would benefit from or require uniform legislation. [16]

In a little more than three years, Working Group II, on Arbitration (since renamed Working Group on Arbitration and Conciliation, herein the "Working Group") drafted the Model Law on International Commercial Conciliation, which was formally approved by Resolution of the United Nations General Assembly on November 19, 2002. [17]

II.  The recent “Surge” in International Rule Making in the area of Mediation.

The realization that there is a need for uniformity of certain provisions in the domain of alternative dispute resolution has led to a number of important initiatives in international rule-making in this area. [18]  In the United States, after many years of preparation and a lot of discussion, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) finalized a draft Uniform Mediation Act (herein “UMA”), which it approved at its annual conference in August 2001 and recommended for enactment in all states of the United States. [19]

In Europe, the Commission of the European Union published a "Green Paper on Alternative Dispute Resolution in Civil and Commercial Matters" (including employment and consumer law) in April 2002. [20]  Hearings were held in February 2003 to discuss the more than 160 responses the Commission had received so far to the questions raised in the Green Paper. [21]

In June 2002, UNCITRAL adopted its final draft of the Model Law on International Commercial Conciliation (herein “MLICC”, "Model Law" or "Law").  On November 19, 2002, the General Assembly of the United Nations adopted a resolution recommending that all countries give due consideration to the enactment of this Model Law [22], “in view of the desirability of uniformity of the law of dispute settlement procedures and the specific needs of international commercial conciliation practice.” [23]

In November 2002, the NCCUSL published a draft Amendment to the UMA to add an article regarding international commercial conciliation. [24]  The amendment is intended to offer an alternative UMA for those states that wish to adopt rules regarding international commercial conciliation.  For this purpose, it aims at providing an Americanized version of the Model Law as a part of the UMA.

Since the adoption of the UNCITRAL Conciliation Rules in 1980, many leading dispute resolution organizations have adopted their own ADR rules, including the International Chamber of Commerce [25], the American Arbitration Association as well as its international arm, ICDR [26], the London Court of International Arbitration, [27] the Stockholm Chamber of Commerce [28], and the CPR Institute for Dispute Resolution [29], just to name a few.  All these organizations have created a set of procedural rules pursuant to which parties can submit their dispute to mediation, and at the option of the parties, if the mediation does not result in a settlement, submit their dispute to arbitration. [30]  Furthermore, international organizations such as ICSID, [31] WIPO, [32] and CAMCA [33]each have their own set of mediation rules.

In order to encourage debate about the MLICC, this paper intends to present an initial, critical analysis of the MLICC [34] in the light of the main alternative laws and rules referred to above.  As the number of non-US sources is limited, this paper is largely based on US sources.

III.  The MLICC: A Critical Analysis.

In preparation for UNCITRAL’s first consideration of the possible topics relating to conciliation, the Secretariat of the Commission identified initially three issues that would benefit from internationally harmonized legislative solutions [35]: (i) admissibility of certain evidence submitted in conciliation in subsequent judicial or arbitral proceedings, (ii) the role the conciliator might play in other adversary proceedings, and (iii) the enforceability of settlement agreements reached during conciliation proceedings.

In a subsequent report [36], the Secretary General discerned five additional subjects:  (iv) the appropriateness or desirability of conciliation by arbitrators; (v) the effect of an agreement to conciliate on judicial or arbitral proceedings; (vi) the effect of conciliation proceedings on any applicable limitation period; (vii) the question as to whether the conciliator may meet separately with each of the parties and the disclosure of information received in caucus; and (viii) the role of the conciliator (during the conciliation process).  Most (but not all) of these subjects made it into the MLICC [37].

In the general approach to finding harmonizing legislative solutions, the Working Group appears to have been guided by three leading principles.  First, the majority of its members felt that party autonomy was such an important principle in conciliation that it had to apply not only to most of the individual provisions of the MLICC, but also to the Law as a whole.  Thus, Article 1, paragraph 7 provides that the parties to a conciliation are free to agree to exclude the applicability of the entire Law.

Second, the decision as to which possible variant to choose for a particular provision often appears to have been inspired by a desire to position the MLICC at the level of the “smallest common denominator” [38] among the various countries' existing legislation rather than by an inspiration to create legislation that can serve both to harmonize and to be a guide towards good law in the area of conciliation.

Third, the wording of many of the provisions of the MLICC follows, sometimes even literally, often closely, or is at least inspired by, the provisions of the 1980 UNCITRAL Conciliation Rules.

Each of these approaches to drafting the MLICC is regrettable.  As to the first approach, it is one thing to welcome, and recognize the importance of, party autonomy insofar as it relates to the parties’ control of the internal workings of the conciliation procedure, it is quite another matter when it comes to the ability to set aside provisions relating, for example, to the confidentiality of the process and enforcement of the settlement agreement.  Both confidentiality and the enforcement of settlement agreements interact closely with the judicial, arbitral and/or administrative adjudicatory systems of the same or another country, and therefore ought to be mandatory law.  The discussions surrounding the mediation privilege as eventually adopted in the UMA have amply demonstrated the need for binding, harmonizing legislation to deal effectively with conciliation confidentiality. [39]

Besides, it would have been preferable to posture the MLICC as a whole as binding legislation, so that it cannot be set aside by a dominant party vis-à-vis weaker parties in the underlying pre-dispute agreement that provided for conciliation (e.g., the general contractor vis-à-vis the sub-contractors who may be dependent on the general contractor for future business), or by all the parties participating in a conciliation proceeding involving a contractual dispute vis-à-vis unrelated parties who did not participate in the conciliation (e.g., subsequent victims of a construction defect). [40]

As to the second approach, although the argument is not without merit that by choosing the smallest common denominator UNCITRAL increased the chance that countries will adopt the MLICC, it also creates the dilemma that the Commission, as the harmonizing legislator, chose not to take a stand where such a stand was justified.  Among several examples, UNCITRAL would have been the authority par excellence to introduce the notion of an evidentiary privilege that applies to the parties, the conciliator and non-party participants in the conciliation. [41]  In principle, this would have resulted in clear protection of virtually all communications made during a conciliation, thus setting a high standard of protection of confidentiality, which has been called the key element for establishing trust in the conciliation system. [42]  Instead, the MLICC ended up with an evidentiary system of protection of certain types of communication that is unclear in its enumeration and subject to potentially broad exceptions that may vary from country to country.  This was a missed opportunity to enhance the attractiveness of conciliation (an often stated goal of the Commission [43]) that lost out to the desire not to “scare away” countries that might adopt a less invasive form of the MLICC.  The question has to be asked what is the use of widespread adoption of a Model Law that is basically without teeth and fails to harmonize in its crucial provisions.

The third approach concerns the strong desire of the Commission to follow the tried and true wording of the 1980 UNCITRAL Conciliation Rules (herein referred to as “UCR”).  It goes without saying that the UCR were an outstanding piece of draftsmanship that has had a profound influence on almost all conciliation rules that followed it, and that are still widely used today.  But using any internal rules as a guide for legislation fails to grasp the difference between (a) creating a framework for the proper functioning of a conciliation proceeding which can and should be governed by rules such as the UCR (or any of the other sets of rules that are available), and (b) drafting a legislative framework that for its main purpose should regulate the interaction between the conciliation proceeding and the legal system outside of it.

In any event, even when it comes to provisions for which the distinction between the internal conciliation proceeding and its relationship with the legal system as a whole is less relevant, it must be remembered that the UCR are now almost 25 years old. [44]  Since then much has transpired in the alternative dispute resolution arena.  Although the choices made by the UCR may often still be usable today, the UCR would benefit from a revision for which more modern rules, such as the WIPO Mediation Rules [45] or the revised CPR Mediation Procedure [46] could serve as sources of inspiration. 

A simple example relating to the conciliation proceeding proper involves the issue of how to handle information that a party gives to the conciliator in caucus [47]: should it be available for disclosure by the conciliator to the other parties unless the party had made an express reservation in caucus, or should it be the other way around, so that there is a presumption of confidentiality?  Article 10 UCR requires confidentiality of the information only if the party in caucus made that a specific condition.  Conversely, the corresponding provision in (for example) the 1994 WIPO Mediation Rules [48] presumes a duty of confidentiality for the conciliator unless the party in caucus specifically authorized her to disclose the information to the other parties to the conciliation proceeding.  Whereas in 1980 the free flow of information between the parties may have been regarded as more important than the safety of the process, the more modern view appears to believe that the sense of security and the participants' perception of confidentiality of the process outweighs the importance of the free flow of information between the parties. [49]  Nevertheless, the Commission in considering the two possible variants for Article 8 MLICC chose for the system adopted by Article 10 UCR, expressing a clear preference for “ensuring circulation of information between the various participants in the conciliation process”, and arguing that “requiring consent by the party who gave the information before any communication of that information to the other party by the conciliator would be overly formalistic … and likely to inhibit the entire conciliation process." [50]

An additional, perhaps unintended, consequence of the Working Group’s focus on the UCR was that it appears to have largely ignored how some of these issues have been resolved by more recent legislation, such as the 1987 Texas Alternative Dispute Resolution Procedures [51], the 1997 California Mediation Statute, [52] the 1994 Revised Code of Washington, [53] or the 2001 Uniform Mediation Act, - without implying, incidentally, that any of these examples is perfect.

It is emphasized that this critical appraisal does not intend to take [54] away from the fact that the MLICC is a very important accomplishment.  The MLICC is probably the first comprehensive conciliation statute in the world covering many more issues than the protection of confidentiality of conciliation communications.  In that sense, it should serve as a beacon for enacting countries to adopt a conciliation law that is inspired by the MLICC.  It is an accomplishment all the more when taking into account that it took only three years from start to finish for UNCITRAL to adopt it.  Compared to the time it took to adopt the UMA (which basically deals only with the confidentiality issue), this is a remarkable result.

It is hoped, however, that now that the MLICC has been formally adopted, the wording of the Model Law is not etched in stone and that instead the MLICC in its current form will be open to amendments as scholars and mediation institutions around the world analyze its language and supply the Secretariat and the Working Group with their comments.  With the benefit of hindsight, the approach chosen by the EU Commission in first issuing a Green Paper [55] asking pertinent questions as to what is desirable in terms of harmonizing legislation might have been a more prudent model.

As the Draft Guide to Enactment and Use of the MLICC [56] (herein, the “Draft Guide”) indicates, the MLICC is basically structured in three parts:  Articles 1, 2 and 3 deal with scope, definitions and interpretation of the MLICC, Articles 4 through 11 cover procedural aspects of the conciliation, and the remaining provisions deal with post-conciliation issues. [57]

Subpart A:  Articles 1, 2 and 3.

Towards the end of the drafting process, a suggestion was made and adopted to combine the Scope of Application and the definitions into one Article.  The original concept of spreading these provisions out over two (or three) [58] articles is preferable, because it enables each Article to focus on one subject only.  Breaking the article into its two components, scope of application and definitions, Article 1 could include paragraphs 1, 8, 9, 5 and (if desired) [59] paragraph 7; and Article 2 could include the definitions of words such as conciliation, conciliator, international and commercial. 

Article 1.  Scope of Application and definitions

1.This Law applies to international commercial conciliation.

2.For the purposes of this Law, “conciliator” means a sole conciliator or two or more conciliators, as the case may be.

3.For the purposes of this Law, "conciliation" means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons ("the conciliator") to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship.  The conciliator does not have the authority to impose upon the parties a solution to the dispute.

4.A conciliation is international if:

(a)The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or

(b)The State in which the parties have their places of business is different from either:

(i)The State in which a substantial part of the obligations of the commercial relationship is to be performed; or

(ii)The State with which the subject matter of the dispute is most closely connected.

5.For the purposes of this article:

(a)If the party has more than one place of business, the place of business is that which has the closest relationship to the agreement to conciliate;

(b)If a party does not have a place of business, reference is to be made to the habitual residence of the party.

6.This Law also applies to a commercial conciliation when the parties agree that the conciliation is international or agree to the applicability of this Law.

7.The parties are free to agree to exclude the applicability of this Law.

8.Subject to the provisions of paragraph 9 of this article, this Law applies irrespective of the basis upon which the conciliation is carried out, including agreement between the parties whether reached before or after a dispute has arisen, an obligation established by law, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity.

9.This Law does not apply to:

(a)Cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement; and

(b)[…].

Footnote 1:States wishing to enact this Model Law to apply to domestic as well as international conciliation may wish to consider the following changes to the text:

- Delete the word "international" in paragraph 1 of article 1; and

- Delete paragraphs 4, 5 and 6 of article 1.

Footnote 2:the term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not.  Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

Article 1, Paragraph 1

The two footnotes both relate to paragraph 1.  The first footnote indicates that those countries that wish to enact the Model Law to apply to domestic as well as international conciliation can do so by making certain simple changes to the text.

The second footnote explains that the word “commercial” should be given a broad interpretation.  It gives a non-exhaustive list of relationships that are of a commercial nature.  This footnote is the same as the second footnote to the Model Law on Arbitration [60].

Of course, footnote 2 is of a different character than the first footnote: footnote 1 is meant as a drafting guide to the enacting authority; footnote 2 on the other hand is intended to be included in the Law as enacted.  The latter may strike many legislators as a drafting practice that is to be avoided, in which case the footnote should be incorporated into the main text.

The Draft Guide makes clear that the enacting country need not limit its legislation to either “international” or “commercial” conciliation [61], as the Law does not contain any provision that would, in principle, be unsuitable for domestic or non-commercial conciliation. [62]  The reason why the MLICC is limited in scope to international conciliation is that some members of the Commission thought that for many countries it would be easier to enact the Model Law without having to disturb the existing legislation on domestic conciliation. [63]  As the Draft Guide concedes, however, considerable difficulties may arise in distinguishing international trade from domestic trade, and this is particularly true for “federal States” [64] (such as Brazil, Germany and the United States).  It is therefore more than a little surprising that immediately upon the approval of the MLICC the Drafting Committee for the UMA came out with a draft amendment that adds an Article 2 to the UMA, which essentially incorporates the MLICC into the UMA for international conciliations.

A discussion of paragraph 1 would not be complete without discussing the deletion of any reference to what was called in some of the discussions the "territorial factor".  Article 1, paragraph 1 [65] of the draft that the Working Group considered in its May-June 2001 session was simple and provided as follows:

(1)These model legislative provisions apply to conciliation, as defined in article 2, if:

(a)It is commercial;

(b)It is international, as defined in article 3;

(c)The place of conciliation is in this State.

At the May-June 2001 session, the view was expressed that the "territorial factor" should be listed as the first factor to be taken into account when determining the applicability of the Model Law. [66]  The intention was to make the territorial factor the default rule that would trigger application of the Model Law.  During the discussion, a substitute for subparagraph (c) was proposed, reading "The place of conciliation, as agreed by the parties, or as determined by the conciliator, is in this State.", [67] which was found generally acceptable (subject to moving the subparagraph into first position).  It was then further weakened to "The place of conciliation, as agreed by the parties, or as determined with the assistance of the conciliator, is in this State." [68]  Subsequent discussions led to adding a new subparagraph that addressed the situation in which the place of conciliation had not been agreed upon by the parties, suggesting more objective criteria such as the place of the administrative institution, the residence of the conciliator, or the place of business of the parties (if in the same country). [69]  These discussions led to a new draft that the Working Group considered in its November 2001 session.  The text of revised Article 1, paragraph 1 [70] read as follows:

(1)These model legislative provisions apply to international commercial conciliation, as defined in articles 2 and 3,

(a)if the place of conciliation, as agreed upon by the parties or, in the absence of such agreement, as determined with the assistance of the conciliator or panel of conciliators, is in this State; or

(b)if the place of conciliation has not been agreed or otherwise determined as provided for in subparagraph (a), the place of conciliation is deemed to be in this State if any of the following places is in this State: the place of the institution that administered the conciliation proceedings; the place of residence of the conciliator or the place of business of both parties if that place is in the same country.

The report of the November 2001 discussions reveals that there were many, very different, points of view going around the Working Group, some appearing quite focused on the principle of party autonomy and wanting to leave the entire idea of the place of conciliation - as the determinant of whether or not the Law would apply - up to the parties. [71]  Others appeared to attempt to sway the discussion back to a somewhat less esoteric legislative approach by pointing out that "in practice, the application of the draft Model Law would be greatly facilitated if it expressly provided for determination of the place of conciliation by the conciliator." [72]  Many further concerns were expressed and many other suggested versions were put forward. [73]  Finally, there must have been so much confusion and differences of approach and opinion that it was proposed to delete the paragraph altogether. [74]  It was noted that the concept of "place of conciliation" had been retained as a result of an analogy with the place of arbitration in article 1(2) of the Model Law on Arbitration, [75] and that there was really no compelling reason to provide an objective rule for determining the place of conciliation. [76] The result of the discussions was the decision to delete the concept of place of conciliation altogether from the Model Law.

Actually, with the predominant view that the Model Law should be almost completely subject to the principle of party autonomy, it is not surprising that the Working Group came to the conclusion to delete any objective way of determining when this law applies to a certain conciliation.  A majority of the members did not, or did not sufficiently, realize that this Model Law really ought to be a harmonizing piece of legislation that is needed primarily to regulate the relationship between conciliation and subsequent adjudicatory proceedings.  A provision parallel to Article 1(2) of the Model Law on Arbitration [77] would have made a lot of sense, especially since a conciliation that does not result in settlement will often be followed by arbitration, and if one Model Law applies, chances are that the other one applies too, in which case a similar system determining the applicability of the Law would have been beneficial.  In addition, the reference to certain provisions that ought to apply to foreign arbitrations pursuant to Article 1(2) of the Model Law on Arbitration would have been a good model for the MLICC, which could provide that, for example, Articles 10 (Admissibility of evidence in other proceedings), 12 (Conciliator acting as arbitrator), 13 (Resort to arbitral or judicial proceedings) and 14 (Enforceability of settlement agreement) of the MLICC should apply even to conciliations held abroad. [78]

Indeed, which law applies to any given conciliation may be a very difficult issue.  And it may be even more difficult to predict in which forum subsequent proceedings will take place where the conciliation's confidentiality will become a relevant issue.  The latter is an issue that Professor Deason emphasized when she made a case for the need for uniformity in mediation confidentiality legislation. [79]  Of course, as Professor Deason pointed out, when suit is filed prior to conciliation (whether the conciliation takes place pursuant to a court mandate or a post-dispute agreement) the question of applicable law is generally easy, since "the already-established ongoing litigation forum is the typical location for resolving confidentiality disputes that may follow" if the conciliation ended without an agreement or with a subsequently disputed settlement agreement. [80]  In other situations, it may be harder to predict where the "subsequent" forum will be in which the confidentiality of a conciliation proceeding will play a role.

The difficulty of predicting the place of a subsequent forum is indeed a strong argument in favor of uniformity, which can be accomplished through an instrument such as the MLICC.  But the problem will only be aggravated if it is ambiguous which law applied to the conciliation in the first place.  It is now up to each enacting country to find a suitable resolution of this issue.

Article 1, Paragraph 2

Obviously, paragraph 2 is not, and does not pretend to be, a definition of the word "conciliator".  It merely recognizes that the singular may include the plural.  It would have been preferable to actually approach this provision more as a definition.  For example, Section 1115(b) of the California Evidence Code defines “Mediator” as “a neutral person who conducts a mediation.” [81] Importantly, it then goes on to include the other members of the mediator’s staff (including the staff of any mediation organization that may be involved): “'Mediator' includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.”  A broadening of the definition along these lines, so as to include every person involved in the conciliation process on behalf of the conciliator, is important in connection with the delineation of what information is protected under Article 10 of the MLICC.  It should include all information disclosed to the conciliator and her staff from the moment of intake all the way through any exit interview that may take place.  If the definition of conciliator is not broad enough, such information may be subject to subsequent discovery.

Article 1, Paragraph 3

The definition of "conciliation" in paragraph 3 of Article 1, although somewhat awkwardly worded, basically includes all salient features of conciliation [82]:  (i) it states that it is a process [83]; (ii) it clarifies that the name given to the process is unimportant (albeit that in some jurisdictions the wording, “expression of similar import” may risk being interpreted as implying a value judgment); (iii) it involves a conciliator (the Commission considered and rejected a reference to her independence and impartiality, inter alia, for fear that this would provide a ground to challenge the settlement agreement [84]) who has no authority to impose a result; and (iv) it involves disputants (referred to in the MLICC as “parties”) each of whom arrives at his settlement on his own accord. [85]

The word “attempt” might suggest that it is the effort rather than the result that counts, and taken literally, achieving settlement would not be part of the conciliation process.  A better terminology would probably have been a phrase such as “with the objective of reaching a settlement”, or using a word such as “pursuing” instead of “attempting”.  Finally, the phrase “arising out of or relating to a contractual or other legal relationship” appears to be superfluous, although one could argue that it serves the purpose of avoiding all doubt that the Model Law also applies to commercial tort claims.  On the other hand, it raises a question as to how broad an interpretation can be given to this reference: does it also extend to administrative disputes with a governmental entity?  Or to commercial disputes of a criminal nature?

Article 1, Paragraphs 4 and 5

Paragraphs 4 and 5 of Article 1 deal with the notion that the conciliation must be “international” for the Model law to apply.  In an earlier draft, these two paragraphs were contained in an Article 3. [86] This is still evident from the reference at the beginning of paragraph 5, “For the purposes of this article”, [87]which would have been more precise if it had been amended to read “For the purposes of paragraph 4 of this article”.

The language of paragraphs 4 and 5 is derived from a similar provision in the Model Law on Arbitration, although it had to be adapted once the decision was made to drop any reference to the place of conciliation. [88]

As noted previously [89], the Working Group was itself aware of the great difficulties that may arise by creating two parallel systems, one for domestic conciliation and one for international conciliation, since the distinction between the two may be very hard to make, and may even lead to bifurcated treatment of a multi-party conciliation where the conciliation proceeding is governed by the domestic laws for one set of parties, and governed by the Model Law for another set of parties.  These problems are even more likely to occur in a federal country such as Australia, Brazil, Germany or the United States.  Nevertheless, even though the Draft Guide warns that “the Model Law should not be interpreted as encouraging enacting States to limit its applicability to international cases”, [90] the Working Group chose to limit the MLICC in principle [91] to international disputes because it believed that the MLICC had a better chance of being adopted if it did not try to interfere with existing domestic legislation. [92] Acceptability of the MLICC could and should have taken a back seat if that choice leads to the creation of a system that may well lead to confusion and additional litigation. 

Such a dual system is presently proposed by a draft Amendment to the Uniform Mediation Act [93] in the United States, that adds the text of the MLICC to the UMA in a new Article (or Chapter) 2.  Adoption of such an amendment would lead not only to confusion and, possibly, additional litigation, because in many instances it is hard to determine when a conciliation is international, [94] but also to a system in which the participants to a domestic conciliation are protected by a broad privilege against disclosure (pursuant to Sections 4 through 7 UMA), while the participants to an international conciliation would be able to benefit only from a limited enumeration of confidential communications the applicability of which can be waived by the parties (pursuant to Article 10 MLICC, Section 210 in the proposed UMA Amendment) [95] and is subject to imprecise exceptions (pursuant to Article 10(3), second sentence MLICC).

Apart from the difficulties inherent in a dual system, any definition of what constitutes "international" conciliation, seems to invite confusion and litigation.  If there must be a dual system as is suggested by the default provisions of the MLICC, it would have been more efficient to define what constitutes “domestic” conciliation rather than try to cover all incidences that make a conciliation “international”.  Following the example of Section 85 (2) of the English Arbitration Act of 1996, [96] a “domestic conciliation” could be defined as a conciliation “in which none of the parties is a national of, or habitually resident in, a state other than the State, or a body corporate which is incorporated in, or whose central control and management is exercised in, a state other than the State [and under which the place of conciliation (if such place has been designated or determined) is in the State].” Applying such a definition, any conciliation that does not meet the definition of a domestic conciliation would come within the ambit of the MLICC as "international" conciliation.

Article 1, Paragraph 6

Article 1 (6) of the MLICC provides a dual opt-in provision.  As the text of paragraph 6 implies, the opt-in is not available to the parties to a dispute that is not commercial. [97]  The language of paragraph 6 is somewhat awkward, probably because in its original incarnation the opt-in was linked to the definition of “international” as a subparagraph (c).  Originally, the Working Group considered providing for an opt-in provision by including a fiction about the location of the subject matter of the dispute in the definition of “international”, similar to the system employed in Article 1 of the Model Law on Arbitration. [98]  When the prevailing view of the Working Group preferred to create a separate provision, both the old concept and the new suggestion may have made their way into paragraph 6. [99] Whether or not the dual system of domestic and international conciliation is maintained, paragraph 6 should be amended to delete the reference to the first option (the parties' agreement that the conciliation is international).

Article 1, Paragraph 7

Article 1 (7) of the MLICC provides a general opt-out.  As previously stated, [100] Paragraph 7 of Article 1 allows the parties to exclude the applicability of the Model Law. [101]  The Draft Guide provides an example "where the parties to an otherwise domestic conciliation agree for convenience on a place of conciliation abroad without intending to make the conciliation "international". [102]

Of course, if the MLICC constituted merely another set of rules to mediate by, such as the UCR, the parties ought to be free to set them aside at any time and choose, in whole or in part, a different set of rules to govern the internal procedure of the conciliation proceeding.  But if the MLICC wants to be the harmonizing legislation that provides to the world a uniform law as to how a conciliation proceeding relates to the world of legal, arbitral and administrative adjudicative systems, both in the enacting country proper and in foreign countries that somehow have a connection with the conciliation, the law UNCITRAL is creating here should not be capable of being set aside by the whim of the parties, whether pursuant to the dispute resolution provisions in their original agreement or just prior to commencement of the conciliation process.  As argued earlier, [103] this must be mandatory law that has nothing to do with the autonomy of contracting parties, but has everything to do with what kind of evidentiary protection exists for certain information disclosed during a conciliation.  It is for that reason that the California equivalent of this law is included in the Evidence Code. [104]

The government of Hungary in its comments [105] shared this view when it stated that "there is a need [for] a legally binding minimum law with respect to the conciliation proceedings, which are able to ensure the equality of the parties.  A permissive legislation would attenuate this precondition."

If the purpose of this provision was to accommodate a choice for the parties between the domestic law and the Model Law, as the Draft Guide suggests in its example,  [106] then a specific provision could be created that deals with this eventuality, - assuming, of course, that one would wish to maintain the dual system of domestic and international conciliation.

Article 1, Paragraphs 8 and 9

As the Draft Guide suggests, paragraph 8 is intended to explain that the MLICC applies irrespective of whether a conciliation is carried out in accordance with an agreement between the parties or pursuant to a legal obligation or request by a court, arbitrator or "competent" government entity.

Strictly from a drafting point of view, the proviso "subject to the provisions of paragraph (9) of this article" would seem to be misplaced.  If applied consistently, the same language should have been inserted in paragraphs 1 and 6 of Article 1.  It would have been more elegant to delete the proviso here, and add a phrase at the beginning of paragraph 9 such as "Notwithstanding any contrary provision of this Law," to clarify that paragraph 9 which excludes applicability of the Model Law to such forms of conciliation as the enacting country wishes to add, overrides every other provision of the Law.

Paragraph 9 (a) is meant to exclude expressly from the application of the MLICC any case where a judge or arbitrator, in the course of adjudicating a dispute, undertakes a conciliatory process. [107]  The exclusion was considered necessary to avoid interference with existing procedural law. [108]

Article 2.  Interpretation

1.In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

2.Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.

The newer Model Laws all contain a similar provision intended to encourage the national courts of the enacting country to interpret the MLICC in a manner that will encourage uniformity of interpretation in the countries where the Law has been adopted. [109] In practice, this means that a court in the enacting country needs to consider as (non-binding but persuasive) precedent the case law from other enacting countries that interprets relevant parts of the MLICC.

The Draft Guide describes four general principles in a "non-exhaustive list" that a court of the enacting country may take into consideration when the Model Law does not settle a particular question. [110] The first principle deals with the promotion of international harmonized legal solutions concerning the integrity of the conciliation process, the promotion of active party involvement and party autonomy.  The second is to promote the uniformity of the Law.  The third principle is to promote frank and open discussions of parties by ensuring confidentiality of the process.  The fourth is to support changes in the process arising from technological developments.  It would perhaps have been better to include these principles in the text of Article 2 (2) itself, so as to give them their proper weight and to ensure that they are considered.

Article 3.  Variation by agreement

Except for the provisions of article 2 and article 6, paragraph 3, the parties may agree to exclude or vary any of the provisions of this Law.

In addition to the possibility of wholesale exclusion of the MLICC pursuant to Article 1 (7), in the name of "the prominent role given by the Model Law to the principle of party autonomy", [111] the parties can do whatever they want with each of the provisions of the Model Law, with the exception of Article 2, dealing with how the MLICC should be interpreted, and Article 6 (3) which requires that the conciliator must seek to maintain fair treatment of the parties and take into account the circumstances of the case.  The Draft Guide does not explain why these two provisions deal with matters that are not subject to party autonomy.  Article 2 cannot be subject to party autonomy because it is directed toward the courts and provides them with guidelines as to how the MLICC should be interpreted. [112]  It would appear that Article 6 (3) is excluded from party autonomy because it sets a mandatory minimum standard.

One could argue that at a minimum, i.e. without applying a value judgment, certain provisions should be deemed to be included in this list of mandatory provisions.  In Article 1, paragraphs 1 through 5, 8 and 9 must be regarded as mandatory no matter what one's opinion is with respect to allowing the parties to exclude or modify the other provisions of the Law that are not listed in Article 3.

In principle, the reasoning behind Article 3 seems to be correct.  If there are provisions in the Model Law (and there are) that deal solely with the internal workings of the conciliation proceeding, the parties ought to be free to choose any other rule or set of rules in lieu of those provisions.  Following the example of the English Arbitration Act of 1996, [113] it is good legislative practice to list the provisions that are mandatory or those that are non-mandatory.  However, the potential problem the MLICC creates is twofold: first, if it wants to provide the parties with a default set of internal rules, it falls short of that goal.  One only needs to compare the (strictly) internal provisions in the Model Law (Articles 5, 6, 7, and 8) with a rather bare-boned set of rules such as the ICC ADR Rules [114] or with the more elaborate and well-conceived CPR Mediation Procedure. [115]

Secondly, Article 3 applies not only with respect to the internal procedures to be followed in the conciliation, but also when it comes to law that regulates the interaction between the conciliation process and the outside world of courts, arbitral panels and administrative judges, which needs to provide mandatory law for the sake of uniformity and predictability of a worldwide system based on the Model Law. [116]

Article 3 finds its roots in Article 1 (2) of the UCR, which provides that "[t]he parties may agree to exclude or vary any of these Rules at any time".  Of course, there is nothing wrong with having such a rule in the UCR, which, after all, deals only with the voluntary, internal rules of conciliation to which the parties submit to pursue a settlement of their dispute, and for which a rule pertaining to the inadmissibility of conciliation communications is a matter of contract, not something that needs to be enforceable as against unrelated persons in a subsequent court proceeding.  Furthermore, the UCR are not administered by any single institution that might feel it has to uphold a standard of integrity and may allow such variations less readily than the UCR.  For example, Article 1 of the ICC ADR Rules [117]allows the parties to modify the provisions of those rules "by agreement of all the parties", but it adds that such modification requires the approval of ICC.

The better approach for Article 3 and the MLICC as a whole might have been to leave it up to the parties to adopt one of the many "internal" conciliation rules that are already available, including the UCR, and to limit the Model Law to those "external" areas of the conciliation process that interact with the adjudicatory system.  One could add to the MLICC a (mandatory) default clause to the effect that if the parties fail to agree on a set of rules, the conciliation will be governed by the UCR.   In addition, the MLICC could include such minimum standards relating to the internal workings of the conciliation process as it deems important to regulate in a mandatory manner, such as Article 6 (3) which provides minimum criteria as to how the conciliator is to conduct the conciliation proceedings, namely fair treatment of the parties and taking the circumstances of the case into account.

Subpart B.  Articles 4 through 11.

Article 4.  Commencement of conciliation proceedings3

1.Conciliation proceedings in respect of a dispute that has arisen commence on the day on which the parties to that dispute agree to engage in conciliation proceedings.

2.If a party that invited another party to conciliate does not receive an acceptance of the invitation within thirty days from the day on which the invitation was sent, or within such other period of time as specified in the invitation, the party may elect to treat this as a rejection of the invitation to conciliate.

An unambiguous delineation of when a conciliation proceeding commences is important for two reasons: first, it helps determine from what point in time the information disclosed becomes subject to the various duties/privileges of confidentiality.  Second, in the event the enacting country will have adopted a provision as is contained in Footnote 3, it determines from what moment on the statute of limitations is tolled. [118] Surprisingly, such provision exists neither in the UMA, nor, for example, in the Washington and California mediation statutes, - although the latter does provide when a mediation ends. [119]

Paragraph 1 intends to define the time of commencement of the proceedings by the day on which the parties to a dispute "agree to engage" in conciliation proceedings.  The Draft Guide explains that this provision needs to be construed as not just applying to the situation when the parties agree to conciliation after the dispute has arisen, but also so as to include the two more common situations, namely where there is a pre-dispute contractual provision requiring the parties to engage in conciliation, and where a court or arbitral tribunal has directed the parties to engage in conciliation proceedings.  In the two latter cases, the wording of paragraph 1 seems confusing because it is normally understood that in either case no further agreement between the parties is required for the parties to commence conciliation. [120]

In the first situation, i.e. that of a pre-existing dispute resolution clause in a contract between the parties, it is possible (depending on how the provision has been drafted) that one of the parties can simply ignore the agreement to mediate and proceed directly to initiating arbitration or a court proceeding.  A provision such as Article 13 MLICC is intended to put some teeth in the undertaking to conciliate by requiring the arbitral tribunal or court to give effect to such undertaking and to dismiss the attempt to initiate arbitration or a court action until the undertaking has been complied with. [121]  In either case, the wording of Article 4 (1) does not really enlighten us as to when the conciliation proceeding is deemed to begin in the event of a pre-existing agreement to conciliate.

Taking its cue from the way conciliation proceedings are deemed to commence under some of the available sets of rules, Article 4(1) MLICC could provide that in the event of a pre-dispute agreement to conciliate the conciliation proceeding is deemed to begin on the day one party's notice setting forth a request to conciliate is sent to, or received by, the conciliation administrative institution, [122] if one has been selected in the pre-existing agreement, or, in the absence of such institution, the other party or parties. [123]

In the second situation, when a court orders or suggests to the parties to engage in conciliation proceedings there would normally be sanctions on the parties if they fail to comply with the court's order. [124]  One can assume that often the court will specify (i) that if the parties fail to agree on a conciliator there is a default system by which the conciliator is appointed for the parties and (ii) the date by which the conciliation must be completed.  In such a case, it stands to reason that Article 4(1) MLICC provides that a court-mandated conciliation is deemed to begin either (a) on the day of the court order or (b) on the day that at least one party first contacts a person or institution with a request to conciliate the dispute between the parties.  As there may be substantial procedural differences between enacting countries as to how exactly the conciliation proceedings are organized, the "safest" [125] commencement date would be the day of the court order or suggestion.

Thus, the Working Group could amend Article 4(1) MLICC by having it consist of three subparagraphs, one that deals with court-mandated conciliation, a second one that deals with conciliation agreed to in a pre-dispute agreement among the parties, and a third subparagraph based on the current paragraph 1 that deals with post-dispute agreements to conciliate. [126]

At an earlier stage of the drafting process, the Working Group agreed that a reference to the invitation to conciliate as having to be in writing should be deleted, in spite of the observation that the point of commencement of the conciliation proceedings would have an effect on such matters as the limitation period [127] and that it would be useful for evidentiary purposes that the commencement of the conciliation be supported by evidence in writing.  It would appear that this discussion might have had a different result if the Article devoted to definitions had included a broad definition of "writing" that included forms equivalent to writing such as an e-mail or a voice-recording followed by a transcript within a certain time period. [128]  For evidentiary purposes, the agreement to conciliate, the commencement of the conciliation proceedings and any settlement agreement should all be in the form of, or evidenced by, a writing. [129]  With respect to the latter, this requirement would contribute to reducing the need to disclose confidential information for purposes of implementation or enforcement of the settlement agreement pursuant to Article 10(3) second sentence.

It is true that a requirement that all these be in writing is not always convenient, especially with respect to disputes involving (or representing) smaller amounts of money.  But the advantages of such a requirement, especially in commercial conciliation, outweigh this inconvenience.  The benefit of being able to avoid later disputes as to what the agreement to conciliate or the settlement agreement contained exactly, or when exactly the conciliation proceeding started, must be more important than the inconvenience of having to write each of these down.

Paragraph 2 of Article 4 provides for a thirty-day notice period within which the "invitee" to a conciliation proceeding must respond. [130]  If Article 4 (1) were amended to consist of three subparagraphs as outlined above, paragraph 2 would deal only with the third subparagraph of Article 4(1).  As an alternative, the inviting party may stipulate the length of the response time in the "invitation" to conciliate.  This may be problematic if the response time is unreasonable under the circumstances.  Since it is impossible to generalize what constitutes a reasonable minimum time within which the invitee must respond, it might be best to mandate that the response time set forth the invitation be a time period that is reasonable under the circumstances.

In the light of an amended paragraph 1, paragraph 2 of Article 4 also raises the question as to what the MLICC would need to do with respect to the other two subparagraphs that are proposed herein.  As to court-mandated conciliation, there may be no need for a default rule as it is really up to the court, arbitral panel or adjudicatory administrative tribunal to impose sanctions in the event one or more of the parties fails to appear at the first conciliation session. 

As to pre-dispute agreements to conciliate, there may be a need for sanctions if one or more of the parties fail to appear at the first conciliation session and the parties did not include sanctions in their contract.  In the interest of party autonomy [131] one could argue that no such default rule or sanctions are needed.  One could say it is their own fault if the parties did not provide for sanctions in their agreement.  However, here again one could question the validity of the party autonomy argument, for example when the original agreement had been entered into among a dominant party and one or more less powerful parties, which is after all a not uncommon phenomenon.  As mentioned earlier, [132] there is the protection afforded by Article 13 (provided it is mandatory) that would require the adjudicatory entity to deny the moving party the right to go forward unless and until he has fully complied with the original agreement, and that may be enough of a deterrent to non-compliance.

As the Permanent Court of Arbitration in its comments to the draft MLICC [133] argued persuasively, any agreement to conciliate should oblige, or be deemed to oblige, the parties to appoint a conciliator (or panel of conciliators) and to have at least one meeting with the conciliator.  Modern conciliation rules provide for such consequences, [134] and including such a requirement in the MLICC would greatly enhance the attractiveness of the process.  In the experience of many conciliators, [135]there is still a great lack of familiarity with the benefits of conciliation and how it operates.  A requirement for the parties to have at least one meeting with the conciliator would expose previously reluctant and ignorant parties to the process and have it explained to them.  As practical experience demonstrates, at the end of that initial meeting many previously reluctant parties may be persuaded to continue the process and decide to genuinely participate in it once they fully understand how and why conciliation works.

The remaining question would be to decide whether such a provision ought to be mandatory or non-mandatory.  Perhaps the principle of party autonomy ought to apply here, if only to prevent a party from refusing to agree to conciliation when the pre-dispute agreement is being negotiated because he would be obligated to show up for the first meeting.  On the other hand, as the Permanent Court of Arbitration comments, "[a]llowing for the possibility to reject engaging in conciliation proceedings would deprive the agreement of any meaning."  While it is preferable that a provision be mandatory that equates an agreement to conciliate with (at a minimum) participation in the selection of a conciliator and required attendance at the first meeting with the conciliator, be mandatory, it does not become useless if a majority of the Working Group were to decide that the provision should be non-mandatory.  Articles 5 and 11 would require corresponding modifications, whether or not such a provision in Article 4 would be mandatory, as the Permanent Court of Arbitration pointed out.  These are discussed under the respective articles below.

Footnote 3:

3 The following text is suggested for States that might wish to adopt a provision on the suspension of the limitation period:

Article […]. Suspension of limitation period

1.When the conciliation proceedings commence, the running of the limitation period regarding the claim that is the subject matter of the conciliation is suspended.

2.Where the conciliation proceedings have terminated without a settlement agreement, the limitation period resumes running from the time the conciliation ended without a settlement agreement.

Even if an article about suspension of the limitation period did not make it into the main text, as was urged for example by the government of Ecuador, [136] and reportedly by a good number of members of the Working Group, it is to be welcomed as an important addition to the Model Law.  Such a provision is notably absent from the UMA and most, if not all, state mediation laws in the United States.  Yet, it fills an important gap the absence of which is only partially remedied by the fact that Article 13 MLICC explicitly permits a party to commence arbitral or court proceedings to preserve its rights.

Because even if Article 13 may solve the problem that the party in need of preserving its rights is protected, taking arbitral or court action under Article 13 may have at least two negative consequences: first, it costs money, time and effort to commence these proceedings, and may take that party's attention away from the conciliation proceedings.  Second, it may be disruptive for the orderly development of the conciliation process and raise questions in the minds of the other participants as to how much confidence the "preserving" party has that the conciliation may succeed and result in settlement.  Unless the conciliator is able to couch such measures to preserve the party's rights in acceptable terms such that it does not reflect negatively on that party or the conciliation process, it may well have a chilling effect on the process for all sides.

The members of the Working Group who opposed this article cited complex technical issues because certain national procedural regimes took different approaches to the issue of periods of limitation. [137]  Some opponents considered that the point of commencement of a conciliation proceeding was not precise enough under Article 4, and that the draft article providing for suspension of the limitation period might be more acceptable if the point of commencement would be established with greater precision.   [138] Conceivably, the amendments to Article 4 herein proposed would persuade a majority of the Working Group to accept the notion of incorporating this Article into the main text, thus enhancing its harmonizing effect.  It may also be worth exploring how some of the technical difficulties referred to by the opponents of the article can be remedied by careful drafting of the article.

The question arises again as to whether this provision can, or should be, non-mandatory, thus making it a provision that the parties can waive.  Some proponents of this provision pointed out that in certain legal systems an agreed extension of the limitation period is not possible. [139]  Moreover, these proponents pointed out that providing a straightforward and efficient means of protecting the rights of the parties is preferable to leaving the parties with the option of commencing arbitral or court proceedings. [140]

Is there a downside to making this provision mandatory?  If the statute of limitations were to present a relevant issue in a conciliation, the party or parties who would need protection probably would not be well-served by an agreement excluding the provision from being applicable to their conciliation.  The flipside of party autonomy comes to mind where at the time the agreement was entered into one or more dominant parties were able to force the other party or parties into agreeing to waive the provision that would have automatically tolled the limitation period.  Absent any obvious benefit, it is hard to think of any goal that would be served by making this provision non-mandatory.

Article 5.  Number and appointment of conciliators

1.There shall be one conciliator, unless the parties agree that there shall be two or more conciliators.

2.The parties shall endeavour to reach agreement on a conciliator or conciliators, unless a different  procedure for their appointment has been agreed upon.

3.Parties may seek the assistance of an institution or person in connection with the appointment of conciliators.  In particular:

(a)A party may request such an institution or person to recommend suitable persons to act as conciliator; or

(b)The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person.

4.In recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, where appropriate, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

5.When a person is approached in connection with his or her possible appointment as conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.  A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him or her.

Article 5 deals with a variety of subjects. In paragraph 1, it provides that the parties may appoint one or more conciliators, and that in the absence of an agreement there shall be one conciliator.  Paragraphs 2 and 3 deal with procedures for the appointment of conciliators.  Paragraph 4 deals with minimum qualifications of the conciliator which the appointing authority needs to observe.  Paragraph 5 deals with certain ethical standards that require the conciliator to disclose potential conflicts.

Since Article 5 is an article that deals principally with "internal" procedure, the question arises whether it ought to be part of the MLICC at all.  A strong argument can be made that at least paragraphs 1, 2 and 3 should not be part of harmonizing legislation, as a variety of existing rules adequately regulate the appointment of conciliators.  These rules (other than the UCR [141]) generally do a better job since they provide for a default rule if the parties fail to agree on whom to appoint as conciliator.  Paragraph 2 of Article 5 has no solution for what to do if the parties are unable to agree on whom to appoint and also fail to agree on a different procedure for their appointment.  Similarly, paragraph 3 is not conclusive because it leaves a vacuum when parties are unable to agree on the person that is recommended to act as conciliator under subparagraph (a), or when parties fail to agree to let the "institution or person" make the appointment of one or more conciliators directly under subparagraph (b).

A good example would have been Article 2 of the CPR Mediation Procedure, [142] because like the UNCITRAL Rules, it deals with non-administered mediation.  But unlike Article 4 UCR, Article 2 of the CPR Mediation Procedure provides for a series of steps enabling the parties to select a mediator, but eventually, if they are unable to appoint one, the CPR will act as the tiebreaker.  In the event the UNCITRAL Rules are amended, the Permanent Court of Arbitration in The Hague may be willing to assume this role. [143]

Deleting paragraphs 1, 2 and 3 of Article 5 would make it desirable to include a provision in the MLICC that would make a (preferably updated) version of the UCR the default set of "internal" rules in the event that the parties have not agreed on a set of rules, or on an institution that administers conciliations [144] which would apply its rules in the absence of an agreement between the parties.  This would also focus the MLICC more clearly on what constitute, respectively, "external" and "internal" rules.

Paragraph 4 of Article 5 deals with certain minimum standards that an appointing authority would need to take into consideration when appointing a conciliator.  Unlike paragraphs 1, 2 and 3, this paragraph sets a minimum standard for an "internal" procedure, and for that reason it may be warranted to keep it in the MLICC.  Although an argument could be made that paragraph 4 need not be mandatory, because there may be situations where the parties prefer a conciliator who is not independent or impartial, the risk of what was referred to earlier as the flipside of party autonomy, potential abuse of the ability to derogate from this minimum standard by a dominant party, would appear to outweigh any benefits of accommodating the rare instance where the parties genuinely prefer a partial conciliator.  On balance therefore one would have to conclude that this provision ought to be mandatory.  In any event, this would be consistent with the implied requirements of impartiality and independence in paragraph 5.

The MLICC does not impose sanctions to the appointing authority that fails to comply with this rule.  The Draft Guide characterizes paragraph 4 as a set of guidelines for the appointing authority to follow in making recommendations or appointments. [145]  The imperative "shall" used in paragraph 5 seems to belie that interpretation.

As an aside, the "institution or person" that is to act as an appointing authority under paragraphs 3 and 4 of Article 5 is not defined. [146] It might have been better to define this concept.  Some might argue that this definition could attach certain criteria to appointing authorities, such as minimum qualifications of the person if it is an individual and similar minimum qualifications for certain of the persons employed by it if it is an institution.  It would seem, however, that these are areas that do not require harmonization and are best left to each enacting country.

Paragraph 5 of Article 5 describes what must be assumed to be a minimum standard of disclosure of potential conflicts of interest for the conciliator.  Paragraph 5 presumes that the conciliator must be impartial and independent even though this notion is not included in the definition of either "conciliator" or "conciliation" in Article 1.  The trigger for a duty to disclose any particular circumstance is that it is "likely to give rise to justifiable doubts" as to the conciliator's impartiality or independence.  Neither the MLICC nor the Draft Guide explains what constitute "justifiable doubts".  The wording is derived from Article 12 (1) of the Model Law on Arbitration, but contrary to the system of the Model Law on Arbitration, the MLICC does not contain a challenge procedure. [147]

While the "justifiable doubts" standard was modeled after the Model Law on Arbitration, it exists in many other laws and rules relating to the requirement of impartiality, and the concomitant challenge, of arbitrators. [148]  The standard is also used in the 1986 IBA Rules of Ethics for International Arbitrators, [149] which in Rule 3 deals with the elements of bias.  Rule 3.3 provides that "[a]ny current direct or indirect business relationship between an arbitrator and a party, or with a person who is known to be a potentially important witness, will normally give rise to justifiable doubts as to a prospective arbitrator's impartiality or independence."  And Rule 3.5 provides that "[c]ontinuous and substantial social or professional relationships between a prospective arbitrator and a party, or with a person who is known to be a potentially important witness in the arbitration, will normally give rise to justifiable doubts as to the impartiality or independence of a prospective arbitrator."  These standards could apply equally to conciliators.

In a recent English case, [150] brought as a Section 68 application to set aside an arbitral award on the ground of serious irregularity involving bias of one of the arbitrators, the commercial court had occasion to interpret the notion of "justifiable doubt."  The court held that its power to remove an arbitrator for serious irregularity under Section 68 on the grounds of bias was to be found in Section 24(1) of the 1996 Act.  The court further held that Section 24 laid down an objective test that is subject to two principles: First, that the court must make its judgment on the basis of the circumstances as it found them to exist and was not concerned with whether the arbitrator did or did not in fact allow his mind to be affected by them; and second, that the circumstances must be such as objectively to justify genuine doubts as to the arbitrator's impartiality. [151]

The justifiable doubt standard does not appear to find an equivalent in comparable provisions in codes of ethics for conciliators.  For example, the standard established in the Model Standards of Conduct for Mediators approved by the American Arbitration Association, the Litigation and Dispute Resolution Sections of the American Bar Association and the Association for Conflict Resolution [152] provides that "A Mediator shall disclose all actual and potential conflicts of interest reasonably known to the Mediator." [153] This Standard further provides that if all parties agree to mediate after being informed of the conflict(s), the mediator may proceed with the mediation.  If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator must decline to proceed.  Article 5(5) MLICC does not include such a duty to decline to serve as a conciliator.

Another standard is set forth in Section 9(a) of the UMA, which requires an individual who is requested to serve as a mediator to

(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation, and

(2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation.

Similar obligations exist under Section 9(a) UMA if a mediator learns afterwards of any such fact.  Interestingly, by way of a (partial) sanction, the mediator who violates this obligation, or the obligation to disclose his qualifications at the request of a party, is precluded from asserting the mediation privilege he has pursuant to Section 4 UMA. [154]

Yet another standard can be found in the Code of Ethics of the ADR Institute of Canada, which requires that the mediator shall "disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias." [155]

At the time of its adoption, the mediation statute as incorporated in the California Evidence Code [156] did not include any ethics standards. Since then, effective January 2003, the California Judicial Council adopted a lengthy and detailed code of ethics. [157]

Much has been written about the rules of ethics concerning the potential conflicts of interest that a conciliator may face. [158] However, since there is little difference between ethical standards as they apply to conciliators and as they relate to arbitrators, [159] there seems to be no compelling reason why the MLICC should not to follow the justifiable doubt standard common in arbitration statutes and rules.  One can question whether it is wise to incorporate a limited standard of ethical conduct in the MLICC at all.  This issue was addressed during the discussions that lead to the eventual inclusion of Section 9 UMA partially quoted above, in part because this is an area of the law that some commentators believed did not need to be harmonized. [160]

As the Draft Guide notes, the MLICC does not regulate the consequences resulting from a failure to make disclosures in accordance with the Article 5 (5), and leaves this to the provisions of law in the enacting country.

Article 6.  Conduct of conciliation

1.The parties are free to agree, by reference to a set of rules or otherwise, on the manner in which the conciliation is to be conducted.

2.Failing agreement on the manner in which the conciliation is to be conducted, the conciliator may conduct the conciliation proceedings in such a manner as the conciliator considers appropriate, taking into account the circumstances of the case, any wishes that the parties may express and the need for a speedy settlement of the dispute.

3.In any case, in conducting the proceedings, the conciliator shall seek to maintain fair treatment of the parties and, in so doing, shall take into account the circumstances of the case.

4.The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute.

Article 6 is perhaps the least controversial of the MLICC, establishing minimum standards for the conduct of a conciliation.  Although none of these provisions is strictly necessary within the context of a harmonizing law, as each of these provisions usually has a satisfactory equivalent in any set of rules the parties may select under which to conduct their conciliation, it is useful to paint a general picture in the MLICC.  Paragraphs 1 and 2 are derived from Article 19 of the Model Law on Arbitration, but the adaptation to conciliation of paragraph 2 was inspired by Article 7(3) UCR. [161] As suggested earlier, [162] it would be useful to refer to a default set of rules in paragraph 2 that is binding on the parties and the conciliator in the event the parties fail to select such a set of rules pursuant to paragraph 1.  This seems better than just letting the conciliator set her own rules, even if certain sets of rules also leave many procedural matters up to the conciliator if the parties do not specifically agree on them. [163] This would provide the conciliator with a framework within which she can work, rather than risking to force her to decide on issues that do not affect her directly, such as dealing with a vacancy on the panel of conciliators, or issues that might otherwise suggest self-dealing, such as limitation of her liability.

Paragraph 3 sets forth the "guiding principles" by which a conciliator ought to conduct the conciliation.  A previous draft included that the conciliator should "be guided by principles of [objectivity, fairness and justice]" [164] {or} "[objectivity, impartiality and independence]", [165] but in the end both variants were deleted.  As a result, the guiding principles left in paragraph 3 are limited to seeking to maintain fair treatment of the parties and, in so doing having to take into account the circumstances of the case.  These two principles were left in to "provide guidance regarding conciliation, particularly for less experienced conciliators." [166] Considering that these two principles are fairly basic, and although qualification of conciliators is (wisely) not regulated in the MLICC, this remark does make one wonder what level of minimum qualification for conciliators the Working Group had in mind.

The Draft Guide points out that inclusion of these two principles should not be deemed to allow parties to seek annulment of the settlement agreement by alleging unfair treatment. [167] The Draft Guide further points out that the reference to maintaining fair treatment is intended to govern the conciliation process and not the settlement agreement. [168]  It would have been preferable if these two points had been included in the text of the MLICC.

Paragraph 4 of Article 6 provides that the conciliator may, but does not have to, make proposals for a settlement of the dispute, and she may do so at any stage of the conciliation proceedings.

Although paragraph 3 is the only paragraph of Article 6 that is mandatory pursuant to Article 3 (unless the entire Model Law is set aside by agreement of the parties pursuant to Article 1(7)), it would seem that paragraph 1, establishing party autonomy over the set of rules they may agree to select, is by its nature mandatory.  And, since paragraph 2 establishes a default rule if the parties fail to agree on a set of rules (whether or not amended as herein suggested [169]), it too is mandatory by its nature.

It would seem that paragraph 4, on the other hand, should not be mandatory, as there are systems of conciliation pursuant to which the conciliator is not to make proposals for settlement. [170]

Article 7.  Communication between conciliator and parties

The conciliator may meet or communicate with the parties together or with each of them separately.

This provision is based on Article 9 (1) second sentence UCR.  Since it is covered in most if not all sets of rules, [171] this article is probably superfluous.  If it was intended as a minimum rule that ought to apply under all circumstances, it ought to be made mandatory. [172]  It would seem, however, that if the parties so desired, they should be able to exclude the possibility of caucuses, and arrange for all conciliation meetings to be held when all participants are present. [173]  As the Draft Guide points out correctly, the fact that the conciliator needs to maintain fair treatment of the parties does not mean that he needs to devote equal time to each party. [174]

One question that is not answered either in the MLICC or the Draft Guide is how Article 7 should apply when there are two or more conciliators involved in the conciliation process.  Is the wording of Article 7 intended to mean that each conciliator can caucus with the parties separately without the presence of the other conciliator(s)?  In general, this does not seem advisable, as conciliation is a process that each conciliator needs to witness in person.  Apart from the risk of partiality, or the perception of partiality, that is created among conciliators who are able to meet with one or more parties separately, whenever one conciliator would caucus with one party and learn about his underlying interests and goals for the conciliation, there is a substantial risk that she will miss some detail or non-verbal observation when she conveys the results of her caucus to the other conciliator(s).  This is especially true when the panel of conciliators is composed of persons with different skill sets.  For example, when two conciliators are used, it is not unusual that one conciliator was trained as a lawyer and the other as a psychologist, so that each will have a different but complementary perspective on the case.  This benefit would be lost if each conciliator were permitted to caucus with parties without the presence of the other conciliator. [175]

Article 8.  Disclosure of information

When the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation.

Generally, confidentiality in the context of conciliation manifests in three different forms:  1) when a party gives information to the conciliator subject to either a presumption or specific condition that the conciliator does not disclose that information to the other party or parties; 2) as a general obligation on the parties, the conciliator and other participants to keep confidential all information and not to disclose such information to any third party; and 3) as right and/or duty not to disclose the information in discovery or evidence in a later arbitral, judicial or administrative proceeding. [176] The first type of confidentiality is dealt with in Article 8.  The second type, the general obligation not to disclose what transpired in the conciliation proceedings, is the subject of Article 9.  The third type of confidentiality is the subject of Article 10.

As discussed earlier, [177]Article 8 mirrors almost verbatim Article 10 UCR.  It is probably superfluous and could be deleted, because a confidentiality provision such as this one has no effect on contemporaneous or subsequent behavior towards non-participants in the conciliation, and seems to be adequately covered by existing sets of rules (including the UCR). [178]  If retained, however, the presumption of confidentiality should outweigh the benefit of a presumption favoring the free flow of information.  It is, and probably ought to be, non-mandatory, although the flipside of the principle of party autonomy, i.e. the dominant party forcing disclosure of all communications looms in the background.

The word "information" has not been defined in the MLICC, unlike the UMA or, for example, the California Mediation Statute.  Section 2(2) UMA introduces the concept of "mediation communication" which is defined as "a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for the purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator."

Section 571(5) of the federal Alternative Dispute Resolution Act [179] defines "dispute resolution communication" to mean:

any oral or written communication prepared for the purposes of a dispute resolution proceeding, including any memoranda, notes or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral award reached as a result of a dispute resolution proceeding, is not a dispute resolution communication.

From a drafting point of view, it would be useful to define "information" in this manner in the MLICC, with a preference for the definition in the UMA because it covers every conceivable form of information that is conveyed to the mediator (or her staff). [180]  A definition such as just quoted from the ADRA does not include conduct or actions by the participants, [181] which do seem to be covered by the UMA definition.  In addition, the ADRA definition specifically excludes from the definition, and therefore from the confidentiality protections contained in the ADRA, the written agreements to enter into conciliation and the final settlement agreement.  Consistent with the more modern view that there should be a presumption of confidentiality, provided that parties have the option to exclude from the duty of confidentiality either or both in their agreements, it would seem preferable to include both the conciliation agreement and the settlement within the purview of what constitutes confidential information.

Article 9.  Confidentiality

Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.

Article 9 deals with the second form of confidentiality in mediation. [182]  Analogous provisions can be found, e.g., in Section 8 UMA and Section 1119 of the California Evidence Code.  Section 8 UMA was added after some lengthy debates as to the usefulness of such a provision, and the reluctance of the Drafting Committee to insert the provision is evident from the text:

Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.

At the other end of the spectrum is the provision found in Section 1119 (c) of the California Evidence Code:  "Except as otherwise provided in this chapter, … (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

Section 8 UMA effectively bars confidentiality of mediation communications unless and to the extent that either (i) the parties agreed thereto or (ii) another law or rule of the State provides otherwise.  Section 1119 (c) California Evidence Code provides for a broad duty of confidentiality, which can be deviated from pursuant to Section 1122 (a), basically only pursuant to the express written agreement of all parties and the mediator.  Article 9 MLICC is somewhere in between these two provisions by not only allowing the parties (without the conciliator) to agree otherwise, but also to provide that confidentiality may be breached if the law of the enacting country so requires or for the purposes of (not: "to the extent required for") implementation or enforcement of a settlement agreement.

From a drafting point of view, the opening phrase "Unless otherwise agreed by the parties" could have been deleted, since the non-mandatory nature of Article 9 follows from Article 3.  In addition, it is regrettable that the exception clause at the end of the article is not limited to a phrase such as "to the extent required for".  The current wording "for the purposes of" seems overly broad.

The Draft Guide points out that the provision is drafted broadly, referring to "all information relating to the conciliation proceedings", to cover not only the information disclosed during the conciliation but also the substance and the result of the proceedings and "matters relating to the conciliation that occurred before the agreement to conciliate was reached, including, for example, discussions concerning the desirability of conciliation, the terms of an agreement to conciliate, the choice of conciliators, and invitation to conciliate and the acceptance or rejection of such an invitation." [183] This is very broad indeed and goes well beyond the MLICC's own definition of the commencement of the conciliation proceeding set forth in Article 4.  It is surprising to see that there is then no apparent link between Article 4 and the confidentiality provision of Article 9, which in turn sheds doubt over whether Article 4 was indeed intended to govern when the confidentiality rules of Article 10 kick in.  The Draft Guide notes that the wording "all information relating to the conciliation proceedings" reflected a "tried and tested formula set out in Article 14 of the UNCITRAL Conciliation Rules." [184]

The Draft Guide further points out that the confidentiality rule of Article 9 is subject to express exceptions, namely where disclosure is required by law or for purposes of implementation or enforcement of a settlement agreement. [185] As to the former, the Draft Guide sets forth two examples of such laws as an "illustrative and non-exhaustive list" [186]:

•laws requiring the conciliator or parties to reveal information if there is a reasonable threat that a person will suffer death or substantial bodily harm if the information is not disclosed; and

•laws requiring disclosure if it is in the public interest.  For example to alert the public about a health or environmental or safety risk.

The examples make plain that the exception "where disclosure is required under the law" was not intended to open up a Pandora's box.  It would have been better if somehow this approach to Article 9 had been expressed in the text itself instead of leaving that kind of important information in the (Draft) Guide.  For example, "disclosure" could have been qualified by providing a phrase such as "except where urgent reasons require disclosure under the law," or by providing words to the effect that such an exception is possible only if there is a public policy that outweighs the interest of keeping conciliation information confidential.

During earlier deliberations, there was reportedly no support for inclusion of Article 9, because (a) the rule would have to set forth a number of exceptions, which could complicate its drafting, (b) that type of statutory duty would introduce liability for violation of the duty, raising a number of difficult policy issues, and (c) the provision was not needed because the parties could agree on the duty of confidentiality when, and to the extent, they so wished, such as by agreeing to conciliate under the UCR. [187] The provision was eventually inserted, without explaining the reasons therefor, during the Working Group's November 2001 session, when several versions and elaborations on Article 14 UCR were proposed and considered. [188]

It is not apparent why disclosure of the confidential information communicated during a mediation can be breached for purposes of implementing the agreement, at least to the extent something other than enforcement is meant.  The terminology "implementation and enforcement" finds its origin in Article 14 UCR, but it is uncertain what was intended with the term.  It is interesting to note that the prior draft of Article 14 UCR, Article 20 of the 1979 Draft UNCITRAL Conciliation Rules was much narrower, and allowed deviation from the duty of confidentiality only in the event of agreement by the parties or if required by (mandatory) law. [189]

Article 10.  Admissibility of evidence in other proceedings

1.A party to the conciliation proceedings, the conciliator and any third person, including those involved in the administration of the conciliation proceedings, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding any of the following:

(a)An invitation by a party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings;

(b)Views expressed or suggestions made by a party in the conciliation in respect of a possible settlement of the dispute;

(c)Statements or admissions made by a party in the course of the conciliation proceedings;

(d)Proposals made by the conciliator;

(e)The fact that a party had indicated its willingness to accept a proposal for settlement made by the conciliator;

(f)A document prepared solely for purposes of the conciliation proceedings.

2.Paragraph 1 of this article applies irrespective of the form of the information or evidence referred to therein.

3.The disclosure of the information referred to in paragraph 1 of this article shall not be ordered by an arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph 1 of this article, that evidence shall be treated as inadmissible.  Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement.

4.The provisions of paragraphs 1, 2 and 3 of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the conciliation proceedings.

5.Subject to the limitations of paragraph 1 of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation.

Article 10 deals with the third category of confidentiality. [190] The proponents of confidentiality, [191] making up the vast majority of the scholars who have written about this subject, [192] believe that confidentiality is the most important tool contributing to the success of conciliation. [193] As Professor Deason points out, confidentiality fosters communication between the parties and the mediator. [194] Confidentiality helps maintain the neutrality of the mediator, because "if a mediator can be converted into the opposing party's weapon in court, then her neutrality is only temporary and illusory." [195] Furthermore, confidentiality performs an important role by keeping the judging function separate from the mediation function, especially in the context of court-mandated mediation programs. [196]

Despite its almost [197] unquestioned importance, how best to regulate confidentiality has often been misunderstood.  As Professor Kirtley explains, [198] over time several theories have been advanced to address the need for confidentiality in conciliation, principally based on contract and evidence law, but generally these approaches have proved to offer inadequate protection to conciliation participants against the "downside risk" [199] of the process when the conciliation fails to result in a settlement. 

Agreements [200] entered into at the beginning of the conciliation to hold all communications confidential, while creating expectations of confidentiality, are frequently difficult to enforce.  The law of evidence in many jurisdictions, notably in the United States [201] and the United Kingdom, "views courts as entitled to every person's evidence" [202], so that, generally, public policy in those jurisdictions forbids parties to agree to withhold evidence. [203]  Conciliation participants therefore risk that the confidentiality agreement will be held to be void as against public policy, or, even if held to be enforceable against other signatories to the agreement, held to be unenforceable as against third parties.

Although traditionally evidence law has sought to exclude evidence of compromise negotiations in general, such as Federal Rule of Evidence 408 [204] and its state counterparts [205], the scope of Rule 408 is limited.  For example, it does not provide that evidence from a negotiation (or conciliation) is excluded when offered for another purpose than "to prove liability for or invalidity of the claim or its amount."  Such other purpose may be proving bias or prejudice of a witness, proving there was no undue delay, or proving an effort to obstruct a criminal proceeding or prosecution.  In addition, Rule 408 offers no protection against pre-trial discovery of conciliation discussions.   [206] Additional statutory provisions intended to protect conciliation communications, such as Section 574 Alternative Dispute Resolution Act, are often riddled with exceptions and inconsistencies. [207] The danger of statutes that provide too many exceptions and/or exceptions that are too broad, is that participants in the conciliation will be less forthcoming if they know that disclosure in subsequent proceedings is a significant possibility.  Even a few published court decisions that undermine the expectations of future participants in conciliations (including their attorneys) can precipitate a loss of trust in the process that risks permanent damage to the entire system of conciliation. [208]

Many of the states of the United States, [209] as well as the UMA have opted for the solution of couching the confidentiality protection in terms of a privilege comparable to the attorney/client, physician/patient and cleric/penitent privileges.  To approach the confidentiality issue as an evidentiary privilege has the advantage that it can clearly define (a) what is the scope of the privilege in terms of what conciliation information and activities are covered; (b) which persons are burdened by the privilege; (c) in which later proceedings will the privilege apply; (d) who are the holders of the privilege, with the right to invoke or waive the privilege (and to what extent); and (e) what information will be excepted from the privilege. [210]  This also means that such a provision can account for the separate and perhaps conflicting interests of conciliation parties and the conciliator in maintaining confidentiality. [211]

The drafters of the MLICC chose not to cast the confidentiality provision as it relates to subsequent proceedings in the form of a privilege.  By not making it a mandatory provision with limited exceptions, it allows the parties to waive the confidentiality of the proceedings even if the conciliator may not agree with such a waiver.  In so doing, the MLICC fails to recognize that the interests of the conciliator are often not the same as those of the parties.  Apart from the disrupting burden of having to oppose subpoenas, conciliators may have difficulty testifying as to specific statements made, because generally no formal record of a conciliation proceeding is made (and is in fact often discouraged [212]).  As a result, the testimony of the conciliator is likely to be interpretative or evaluative rather than descriptive, which risks that one or more of the parties will view the conciliator as biased after the fact. [213]

Article 10(1) as a non-mandatory provision raises the question to what extent the duty of confidentiality in subsequent proceedings can be waived in the situation of a multi-party conciliation.  Article 3 provides that "the parties may agree to exclude or vary any of the provisions of this Law".  Although it does not explicitly say "all of the parties" as, for example, is provided in Article 1 of the ICC ADR Rules, [214] it is presumed that Article 3 requires a unanimous decision of the parties to waive the confidentiality duty of Article 10.

There was some discussion during the November 2001 session of the Working Group on Arbitration as to the mandatory or non-mandatory nature of Article 10, in that the view was expressed that the general principle stated in paragraph 1 should not be subject to party autonomy and that the mandatory nature of paragraph 1 should be expressed in (what is now) Article 3 since it is aimed at preserving the autonomous and confidential character of conciliation.  But the party autonomy faction of the Working Group prevailed once again, arguing that "the public interest that might be attached to the prohibition established under paragraph (1) was not strong enough to justify deviation from party autonomy as one of the main principles underpinning the draft Model Law." [215] It is worth noting that even Section 4 UMA can be waived as provided in Section 5 thereof.  The difference is that, since the UMA deals with the duty of confidentiality as a privilege, it is more precise as to who can waive what.  For example, the parties cannot waive the mediator's privilege without it also being expressly waived by the mediator, and they cannot waive the nonparty participant's privilege without it also being expressly waived by the nonparty participant. [216] In Article 10(1), these obligations can be waived by the parties, although in the May-June 2001 session of the Working Group some doubt was expressed whether it was appropriate for a third person to be bound by paragraph 1, particularly if the parties controlled the extent to which those third persons were so bound. [217]

Paragraph 1 of Article 10 sets up the basic rule of confidentiality of conciliation information in subsequent proceedings.  It is based on the original approach of Article 20 UCR, which provided for an undertaking of the parties not to rely on or introduce as evidence, four specifically listed areas of information.  Article 10(1) MLICC expanded upon this notion in several ways:  first, by adding to the persons "burdened" by the duty of confidentiality the conciliator and any third person, including those involved in the administration of the conciliation proceedings.  The Draft Guide explains that the words "or a third person" [218] are intended to include any person other than the parties, including witnesses and experts, who may have attended the conciliation. [219] The broad reference to "any third party" would have been more accurate if followed by a phrase such as "involved in any way, or attending all or part of the conciliation proceeding".

Second, in comparison to Article 20 UCR, Article 10(1) expanded the notion of "arbitral or judicial proceedings" by inserting "or similar".  It is presumed that this wording is intended to cover legislative, administrative and quasi-judicial or other adjudicatory proceedings, although it is not specifically explained in the Draft Guide. [220] Paragraph 4 makes clear that the words "arbitral, judicial or similar proceedings" refer to proceedings whether or not these proceedings relate to the subject matter of the conciliation proceedings, [221] and irrespective of whether such proceedings are concurrent with or subsequent to the conciliation proceedings in question. [222]

Third, where Article 20 UCR uses "undertakes", because as part of a set of internal rules it necessarily takes a contractual approach to the confidentiality issue, Article 10(1) MLICC uses the words "shall not", indicating that the Model Law imposes a duty on the participants to the conciliation proceeding, "regardless of whether the parties have agreed to a rule such as that contained in article 20 of the UNCITRAL Conciliation Rules". [223]

Fourth, in addition to the duty "not to rely on or introduce as evidence", Article 10(1) adds "or give testimony or evidence".  The Draft Guide is silent about this addition.

Fifth, in comparison to Article 20 UCR, Article 10(1) MLICC, in its list of areas that are the subject of the duty of confidentiality in other proceedings, the Working Group revised the wording of the second category of Article 20 UCR, and added two new categories as the first and the last category of a list that now counted six areas of information.  With respect to the substantive amendments made to the list contained in Article 20 UCR, the scope of admissibility was amended by adding the words "statements or" to Article 20 (b), so that Article 10(1)(c) MLICC now reads: "Statements or admissions made by a party in the course of the conciliation proceedings."  At the time that these words were added, [224] the Working Group also had before it a variant in subparagraph (a), which read "(a) Views expressed or suggestions made by a party to the conciliation in respect of [matters in dispute or] a possible settlement of the dispute." [225] The suggestion was made that the "appropriate balance between evidence that was to be covered by the provision and evidence that remained outside of it would be achieved by deleting 'matters in dispute or' (from subparagraph (a), and) replacing the word "admissions" by the words 'statements or admissions'". [226] How this should be interpreted is not readily apparent.  The amendment did seem to reject one very broad category (views expressed or suggestions made in respect of matters in dispute) for what could be intended as an even broader category (statements … made in the course of the conciliation proceeding).  The Working Group may not have been aware of the breadth of this insertion, or perhaps the members saw the amendment merely as a broadening of "admissions".  Whatever the members had in mind, conceivably this addition to subparagraph (c) could become a catchall that includes aspects of other categories that are excluded there because of their narrower wording.

Each of the subparagraphs (a), (b), (d) (e) and (f) of Article 10(1) MLICC raises some questions, some minor, others not so minor.  Subparagraph (a) raises the question why the fact that a party was (at first) unwilling to participate in conciliation proceedings is not covered by the duty of confidentiality. [227]

Subparagraph (b) raises the question how one determines whether a "view" or "suggestion" was made "in respect of a possible settlement of the dispute".  This qualifier was already in Article 20 UCR, as well as Article 27 of the 1979 draft UCR. [228] The explanatory report following the 1979 draft explained that Article 27 attempted to find a balance between the interest of confidentiality and the need for some forms of evidence to be disclosed in later proceedings [229], and therefore attempted to define certain categories of information that would be inadmissible in other proceedings.  Thus, the provision "lists as 'classified material' various kinds of information or statements given for the purpose of reaching a settlement agreement." [230] Importantly, the explanatory report added that "[i]t is this common thrust of the items listed which makes them potentially prejudicial to one or the other party and justifies their inadmissibility in other proceedings." [231] In attempting to interpret the meaning of each of the categories listed in the subparagraphs of Article 10(1), this statement in the 1979 explanatory report may provide a useful yardstick by which to measure whether in practice a certain statement should be admissible or inadmissible if the language of Article 10(1) is unclear with respect to the particular information at hand in another proceeding.

Similarly, it is strange that subparagraph (e) brings within the duty of confidentiality the fact that a party was willing to accept a settlement proposal, but not that a party was unwilling to accept it.  Also, why are subparagraphs (d) and (e) limited to proposals made by the conciliator?  What about settlement proposals made by the other party or parties?  Is there any meaning attached to the fact that (d) seems to refer to all proposals made by the conciliator, whereas (e) is limited to settlement proposals made by the conciliator?  Subparagraphs (d) and (e) are virtually identical to the corresponding two subparagraphs in the 1979 draft UCR mentioned above.  Their text has likely not been questioned since.

The strong link between Article 10(1) MLICC and Article 20 UCR probably also explains why the Working Group never discussed any other approach to drafting a clause dealing with the duty of confidentiality in subsequent proceedings.  It is regrettable that the Working Group never considered the possibility of a general duty of confidentiality with certain stated exceptions, a system that is followed by a large number of state confidentiality laws in the United States, whether or not it is cast in the form of an evidentiary privilege [232] or simply as a rule that bars such information from discovery or from admissibility in evidence. [233] The same approach is taken in Section 4 UMA, which provides for privileges of mediation communications that apply to mediation parties, mediators and so-called nonparty participants. [234] What Article 10 of the MLICC ended up with instead is an exhaustive list of specific information to which the duty of confidentiality attaches pursuant to paragraph 1 followed by a set of broad exceptions set forth in the second sentence of paragraph 3, creating an overall system that is full of loopholes and interpretative problems.  A study of what went before the MLICC could also have covered such omissions as the fact that no non-verbal communications are protected under the duty of confidentiality of Article 10 MLICC [235] and, even more importantly, that the duty of confidentiality does not seem to extend to the protection from pre-trial discovery. [236]

Paragraph 2 provides that the form of the information or evidence referred to in paragraph 1 is immaterial.  It could be argued that this means that non-verbal communications and conduct are protected under Article 10(1), but without a more detailed definition this cannot really be stated with any degree of certainty.  The Draft Guide did not consider this possibility when it pointed out that paragraph 2 is intended to make clear that Article 10 applies to the information specified in paragraph 1 "regardless of whether they appear in a document or not." [237] An earlier report shows that the Working Group did contemplate that information "on an electronic medium" [238] should be deemed to be included.

Paragraph 3 of Article 10 consists of two sentences.  The first sentence translates the duty of confidentiality that applies to the parties, the conciliator and any third person pursuant to paragraph 1 into a directive to the court, arbitral tribunal or other adjudicatory body not to order the disclosure of any specific information that comes within the ambit of paragraph 1.  In addition, it directs such adjudicatory body to treat any evidence as inadmissible that has been offered in evidence in contravention of paragraph 1.  Inclusion of paragraph 3, first sentence deserves praise, as it reinforces the construct that has been created by paragraph 1.  As the Draft Guide notes, "[i]n order to achieve the purpose of promoting candor between the parties engaged in conciliation, they must be able to enter into the conciliation knowing the scope of the rule and that it will be applied." [239]

However, the first phrase of the second sentence of paragraph 3 is so broad, that it effectively redirects the impact of paragraph 1 of Article 10 (or lack thereof) back to the local evidence laws of each contracting country.  To the extent such local laws require that information otherwise barred pursuant to paragraph 1 be disclosed or admitted in evidence, Article 10 is set aside and the local laws control.  In effect, this may well mean that there will be no uniformity whatsoever when it comes to the duty of confidentiality of information in other proceedings.

In describing the second sentence of paragraph 3 the Draft Guide does attempt to limit its impact by referring to situations in which the "evidence of certain facts would be inadmissible under article [10], but the inadmissibility would have to be overridden by an overwhelming need to accommodate compelling reasons of public policy." [240] Even if this much narrower language had been incorporated into the Model Law itself, it might not have been enough to discourage courts from using this exception as the loophole to admit evidence that would otherwise have been barred by Article 10. 

There is a tension between two opposing public policies: on the one hand is the (newer) but strong public policy that supports the confidentiality of conciliation so that the process is as safe as possible. [241] On the other hand is the more established, and equally strong (and perhaps in some jurisdictions, stronger) public policy that requires the parties to disclose all relevant evidence.  If the latter need is seen as a compelling reason of public policy, a court may well apply the "out" provided by the second sentence of Article 10(3) and thus simply ignore the obligation it has pursuant to the first sentence of Article 10(3).

This tension is illustrated by the recent California case of Rojas v. Los Angeles County Superior Court, [242] which is currently being considered on appeal by the California Supreme Court. [243] The case involves a tort action brought in August 1999 by tenants of an apartment complex alleging that the defendant owners and developers of the complex conspired to conceal building defects and a microbe infestation from the tenants.  An earlier construction defect action brought several years earlier by the owners against the developers had ended in a mediated settlement, which inter alia called for remedial action to eliminate the causes of the toxic mold.  Under the laws of California, the mediation is confidential.  The plaintiffs in the tort action, however, filed a motion to compel the production of certain physical evidence, including mold spore analyses and photographs of defects that the plaintiffs had no other means of obtaining, as most of this evidence was destroyed or removed as a result of the remediation.  [244] The defendants argued that this evidence was made and/or prepared "for the purpose of mediation" and is therefore protected. [245] Similar to Article 10 (5) of the MLICC, California law provides that "[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation." [246]

The Court of Appeal, compelling discovery of "non-derivative" material (even if it is part of a compilation that can be taken apart), acknowledged the dilemma between the dissenting opinion which found the mediation privilege to be absolute (pointing to mediation’s purpose of encouraging the resolution of disputes), and the need to allow such evidence to be admissible if there is no other way for it to become available.  The majority opinion went on to say:

However, were we to find all material introduced into a mediation covered by the privilege, this would (1) render the language of section 1120 [247] nugatory, and (2) permit the parties to use mediation as a shield to hide evidence. … To give the parties one more avenue where they could hide evidence and obstruct the fact-finding process of litigation would be, in our view, disastrous and would not foster resolution of disputes, but hinder them. [248]

The Draft Guide gives examples of when this "compelling need" [249] occurs, including the need to disclose threats made by a participant to inflict bodily harm or unlawful loss or damage; where a participant tries to use the conciliation process to plan or commit a crime, and where evidence is needed to establish or disprove an allegation of professional misconduct. [250] These examples were inspired by the exceptions to the confidentiality privilege set forth in Section 6(a) of the UMA, specifically those contained in paragraphs (3), (4) and (5)/(6) thereof. [251] The question arises why the Working Group did not follow the example of the UMA all the way by specifically including these examples in the Law itself as limited exceptions to the duty of confidentiality.  The Draft Guide's list of examples also goes beyond the exceptions set forth in Section 6(a) UMA where the Draft Guide lists the situation where evidence is needed in a proceeding in which fraud or duress is in issue regarding the validity or enforceability of an agreement reached by the parties, or where statements made during a conciliation show a significant threat to public health and safety.

What, if any, precedential effect the (Draft) Guide will have is uncertain at this time.  It was intended not only to assist the legislature in enacting the Model Law, but also to assist the user of the text, "including commercial parties, practitioners, academics and judges". [252] Paragraphs 1 and 2 of the Resolution of the General Assembly adopting the Model Law specifically mention the Guide, urging the Secretary-General to make all efforts to ensure that in addition to the Model Law itself, the Guide becomes generally known and available.  But the fact that the General Assembly and UNCITRAL wish that the Guide influences judges does not mean that those judges will feel bound by it.  The fact remains that, although the examples do help convey the message that the exception set forth in the second sentence of Article 10(3) ought to apply only in limited, very compelling circumstances, the text of that second sentence itself does not convey that message.  Only time will tell how the courts in the various jurisdictions will interpret Article 10(3) MLICC.

Under the second part of the second sentence of Article 10(3), information that is confidential pursuant to Article 10(1) may be disclosed "for purposes of the implementation or enforcement of a settlement agreement."  This provision also appears to be rather broad in that it does not seem to carry the same limitation as the first portion of this exception, unless "to the extent required" is also intended to apply to the second portion of the exception.  The Draft Guide does not shed any further light on this question.

As stated previously, [253] Article 10(4) extends the scope of the preceding paragraphs to adjudicatory proceedings irrespective of whether they relate to the dispute in question, and irrespective of whether the proceeding is subsequent to the conciliation or occurs at the same time that the conciliation proceeding takes place. [254] The question arises why paragraph 4 by its terms does not apply to paragraph 5 of Article 10.  Maybe because the latter is also a provision that is intended to refer back to the first three paragraphs.  The Draft Guide's explanation of paragraph 5 is consistent, however, with paragraph 4 not applying to that paragraph, since it refers only to a "subsequent" proceeding and an "earlier" conciliation. [255]

Paragraph 5 of Article 10 provides that evidence that is otherwise admissible in an adjudicatory proceeding does not become inadmissible as a result of having been used in a conciliation.  This is a provision that corresponds with, e.g., Section 4(c) UMA and Section 1120(a) of the California Evidence Code.  The purpose of all these provisions is to prevent parties from using a conciliation as a pretext to shield materials from disclosure. [256]  Unlike the corresponding provisions in the UMA and the California Evidence Code, Article 10(5) does not make reference to discovery, and it does not use the word "solely".  Both omissions are unfortunate.  Even if many jurisdictions do not have the tool of pre-trial discovery, the possibility of the extra-territorial, spillover effect of Article 10 MLICC as adopted in non-pre-trial discovery country A into pre-trial discovery country B raises the possibility of a loophole if the law of country A is held to control the duty of confidentiality of a conciliation that took place in country A as it applies to a subsequent court proceeding in country B.

Unlike Article 10(5), the Draft Guide does use the word "solely" in explaining that all information that otherwise would be admissible does not become inadmissible "solely by reason of it being raised in an earlier conciliation proceeding." [257] It appears therefore that the omission of the word "solely" from the text must be seen as having no consequence.  In giving examples of where paragraph 5 could come into play, however, the Draft Guide summarizes the meaning of the list of paragraph 1 in a disturbingly narrow way: "It is only certain statements made in conciliation proceedings (i.e. views, admissions, proposals and indications of willingness to settle) that are inadmissible…"

Hopefully, this phrase will not be used as an interpretative guide to the meaning of paragraph 1, but rather just within the context of paragraph 5 where it is merely used as an illustration of the fact that the underlying evidence that gave rise to the statements is not inadmissible. [258]

The MLICC does not provide for any sanctions or other consequences in case the duty of confidentiality set forth in Article 10 has been violated.  It is reasonable to assume that this is a matter to be determined by each enacting country in accordance with its existing system of sanctions for violations of its rules of evidence.  In contrast, section 5(b) UMA provides one (non-exhaustive) consequence of making wrongful references to mediation communications in subsequent proceedings by allowing the person who has been prejudiced thereby to respond to the wrongful reference.  To that extent, the person who made the wrongful reference is precluded from asserting a privilege pursuant to Section 4 UMA.

Article 11.  Termination of conciliation proceedings

The conciliation proceedings are terminated:

(a) By the conclusion of a settlement agreement by the parties, on the date of the agreement;

(b)By a declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of that declaration;

(c)By a declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or

(d)By a declaration of a party to the other party or parties and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

The precise determination of when the conciliation ends is important for the same reasons that the precise determination of the commencement of the conciliation [259] is important.  These two provisions determine the beginning and end of the tolling of the statute of limitations in the countries that choose to adopt the article set forth in footnote 3 [260] and, presumably, the beginning and end of the period within which conciliation related statements are covered by the duties of confidentiality set forth in Articles 9 and 10.

The UMA lacks provisions that deal with the beginning and end of the conciliation process.  As stated previously, [261] the California Evidence Code, although not regulating when the conciliation process is deemed to begin, does have a provision saying when it ends. [262] Unlike Article 11 MLICC, Section 1125 of the California Evidence Code also deals with the situations in which (i) there is no communication between the conciliator and any of the parties for a while, and (ii) a partial settlement of the dispute has occurred.

Neither Article 11 MLICC nor Section 1125 California Evidence Code includes a reference to an exit interview. [263] Exit interviews constitute a logical point at which the conciliation process comes to an end whether or not the parties have settled their dispute.  Absence of a reference to exit interviews within the context of commercial conciliations may not be a problem, because it is probably not customary in many jurisdictions to hold exit interviews in a commercial setting.

Subpart C.  Articles 12 through 14

Article 12.  Conciliator acting as arbitrator

Unless otherwise agreed by the parties, the conciliator shall not act as an arbitrator in respect of a dispute that was or is the subject of the conciliation proceedings or in respect of another dispute that has arisen from the same contract or legal relationship or any related contract or legal relationship.

Generally, it is undesirable that a person who has acted as a conciliator in a conciliation would sit as arbitrator in an arbitration handling the same dispute or a dispute that is closely related thereto, whether it is subsequent to or contemporaneous with the conciliation in question.  Actually, as was noted during the deliberations of the Working Group, it could be argued that such a provision more properly belongs in the Model Law on Arbitration. [264] On the other hand, it was apparently felt that this provision would provide a degree of additional comfort to the participants in a conciliation, since a party might be reluctant to strive actively for a settlement if it had to take into consideration the possibility that the conciliator might be appointed as an arbitrator in a subsequent, related arbitration. [265]

Since the preface "unless otherwise agreed by the parties" was deleted in most other provisions, it is curious that it was not deleted in Article 12.  The exception may have been left in inadvertently, or to emphasize that this provision is non-mandatory.  There are after all situations in which it is desirable for the parties to appoint the conciliator as arbitrator, for example because after a failed conciliation the parties may regard that person's prior knowledge an advantage that would allow her to conduct the arbitration more efficiently. [266] As the Draft Guide points out, however, even in that event there may be ethical considerations suggesting that the conciliator should decline to act. [267]

The Working Group did not take the opportunity to add a second paragraph to Article 12 to the effect that parties may validly agree that, upon reaching a settlement agreement, they may appoint the conciliator as arbitrator to enter a so-called arbitral award on agreed terms.  This is not to say that such an agreement would not be valid under the MLICC as currently written.  On the contrary.  But it would draw attention to the possibility of an award on agreed terms and further popularize and legitimize its use. 

Article 14 (which deals with the enforcement of settlement agreements) could then provide that such an award shall have the same force and effect as any other arbitral award under the laws of the enacting country.  An established practice of converting the settlement agreement into an arbitral award on agreed terms will benefit from the explicit confirmation that the award is valid and equivalent to a situation in which the parties reach a settlement agreement during an arbitration proceeding and request the arbitral panel to record the terms of the settlement in the form of an arbitral award. [268]

Such provisions in Articles 12 and 14 would enhance the attractiveness of reaching a settlement in a conciliation proceeding rather than having to risk another phase of non-compliance with the settlement agreement, which would necessitate another round of litigation.  Especially in international conciliation, the combination of these two articles will give legitimacy to the argument that an arbitral award on agreed terms entered at the conclusion of a conciliation proceeding is enforceable under the New York Convention just like any other arbitral award. [269]

This issue was not raised during the deliberations of the Working Group even though the explanatory report to the 1979 Draft UCR already touched on the subject by pointing out that a settlement agreement concluded in conciliation "is not equal to an "arbitral award on agreed terms (as provided for in at least one set of conciliation rules)." [270]

Article 13.  Resort to arbitral or judicial proceedings

Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with, except to the extent necessary for a party, in its opinion, to preserve its rights.  Initiation of such proceedings is not of itself to be regarded as a waiver of the agreement to conciliate or as a termination of the conciliation proceedings.

One of the earlier drafts [271] of what is now Article 13 included a paragraph 1 that provided an outright prohibition against initiating any arbitral or judicial proceedings in respect of a dispute that is the subject of a conciliation, but also providing in substance the same exception as is provided at the end of the first sentence of Article 13 in its final version.  The Working Group rejected this stronger version because it believed that the exception could easily defeat the prohibition as it gives a large degree of discretion to the party who initiates an arbitral or court proceeding to preserve its rights. [272] Rather than reducing, or eliminating, the discretion provided by the exception, the entire concept of paragraph 1 was eliminated in favor of what is now Article 13.

The Working Group could have chosen to create a narrower exception, for example by providing that the party is authorized to take actions “to the extent they are reasonably necessary to preserve its rights.”  Such a phrase would introduce an objective test [273] rather than leaving it up to the discretion of the party.

In addition to the outright prohibition of paragraph 1, paragraph 2 of the earlier draft set forth the same rule as the final version of Article 13, which is kept strictly within the context of an express agreement between the parties.  In a roundabout way, the Working Group returned to a text that is remarkably similar to Article 16 UCR.

In its final version, Article 13 simply provides that arbitral tribunals and courts must honor the parties' agreement to conciliate, except to the extent that a party, in its discretion, deems it necessary to preserve its rights.  However, the parties’ agreement must satisfy two conditions: (a) it must provide for conciliation as the initial method of dispute resolution, and (b) it must include an express undertaking not to initiate any arbitral or court proceedings (i) until a certain number of days have passed, e.g., from the moment that a notice of default has been received by the other party, or a request for conciliation has been filed, or alternatively, (ii) until certain events have occurred, such as the appointment of a conciliator and the first session with the conciliator.  It is likely that there will be many cases in which the agreement to conciliate does not fulfill both conditions.  A default rule setting forth an outright prohibition would therefore have been better.

As noted previously, [274] instituting proceedings to preserve one’s rights may have a chilling effect on the conciliation proceedings.  The exception of Article 13 could have been drafted more narrowly by adopting only the outright prohibition foreseen in paragraph 1 of the prior draft, [275] with an objectively worded exception allowing the plaintiff to take such actions as are reasonably necessary to preserve its rights.  Such a provision could then have been made mandatory.  In that case, the “contractual version” set forth in paragraph 2 of the prior draft, which ended up as the final version of Article 13, would not have been necessary and could have been deleted.

Of course, if the enacting country adopts the Article set forth in footnote 3 to Article 4, Article 13 would not be needed for the purpose of preserving the right to sue, since the footnoted article would automatically toll the statute of limitations until the conciliation has ended.  But there may be other reasons why a plaintiff would want to take measures to preserve its rights, such as a temporary injunction in an intellectual property infringement claim, or obtaining a lien on a debtor’s bank account or other assets in the case of collecting moneys owed.  Thus, the need for a provision such as Article 13 is not eliminated by the adoption of the footnoted article. [276]

Article 14.  Enforceability of settlement agreement4

If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable … [the enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement].

Footnote 4: When implementing the procedure for enforcement of settlement agreements, an enacting State may consider the possibility of such a procedure being mandatory.

It appears that Article 14, dealing, or, one might say, not dealing, with the issue of enforcing settlement agreements was one of the most hotly debated subject matters during the Working Group’s deliberations of the MLICC.  The Draft Guide notes that the text "is aimed at reflecting the smallest common denominator between the various legal systems." [277]

In discussing Article 12, [278] this paper expressed the hope that between Articles 12 and 14, the Model Law would emphasize that the conciliator can act as arbitrator to convert a settlement agreement into an "arbitral award on agreed terms", which could then gain legitimacy by an express provision in Article 14 that recognizes such an award as having the same force and effect as any other arbitral award.  Wording very similar to this notion was before the Working Group as Variant C [279] of Article 14, which stated:

If the parties reach agreement on a settlement of the dispute, they may appoint an arbitral tribunal, including by appointing the conciliator or a member of the panel of conciliators, and request the arbitral tribunal to record the settlement in the form of an arbitral award on agreed terms.

Although the above does not exactly reflect the same concept as is here proposed, it is close to having the same effect.  As proposed herein, Article 12 would have a second paragraph very similar to Variant C quoted above, and Article 14 would have a second paragraph that deals expressly with the fact that if the parties used the possibility suggested in Article 12, such an award on agreed terms would have the same force and effect as any other arbitral award on the merits of the case under the laws of the enacting Country. [280] The First Draft Guide pointed out that Variant C was based on Article 30 of the Model Law on Arbitration [281] and offered a basic procedural framework as to how a settlement agreement may become expressed in the form of an arbitral award.

In the discussions that followed in November 2001, the Working Group seemed to pay more attention to the contractually based variants that were before it, seeking to establish a regime through which settlement agreements would be granted greater enforceability than an ordinary contract, but it was feared that the Model law would then also have to include (limited) grounds upon which a settlement agreement could be challenged.  With respect to a variant substantially similar to, albeit more extensive than, the final version of Article 14, it was then widely felt that

simply referring in the text to the existence of procedures for the enforcement of a settlement agreement of a commercial dispute under the law of the enacting State resulted in merely restating the obvious and failed to provide the minimum level of harmonization that could be expected from a text of uniform law prepared by UNCITRAL. [282]

This statement accurately summarizes what can be said about the final version of Article 14.

A footnote to Article 14 suggests that if the enacting country adopts a provision such as what is suggested in Article 14, such provision should probably be mandatory.  This suggestion is clearly correct and could have been worded in less cautionary language.  If the enacting country provides express language as to how conciliation settlement agreements are to be enforced, it would not be appropriate to enable the parties to arrange for something that is less enforceable, whereas it is unlikely to be within the powers of the parties to contractually succeed in making something more enforceable than an agreement (other than an instrument of a different kind, such as a confession of judgment or an award on agreed terms).

IV.Conclusion.

Even though there is abundant room for improvement, as demonstrated in the suggestions made in the above appraisal of each article of the Model Law, it needs to be emphasized that the MLICC is, in many ways, unique.  As far as can be ascertained, the MLICC is the first real effort to put together a comprehensive conciliation act that covers virtually all relevant issues (a) to set minimum standards for the internal aspects of conciliation and (b) to regulate the aspects of conciliation that relate to contemporaneous or subsequent court, arbitral or similar proceedings.  This is a major accomplishment that should not be clouded by the fact that one may be critical of aspects of the current version of the MLICC.

If the community of conciliation practitioners and scholars has the opportunity to take a critical look at the MLICC in its current form, so that the various suggestions can be assembled and considered for incorporation into a subsequent version, the MLICC so revised will be a Model Law that is better and more comprehensive than any other statutory scheme presently in force, including the Uniform Mediation Act.  Such a new Model Law can create real and much needed harmonization in this area of the law.  Hopefully, this paper provokes such reactions and will be a first step on that road.

V.Postscript

Having completed the above, the question presented itself what the Model Law on International Commercial Conciliation would look like if it followed the suggestions that are set forth in this paper.  Even if it is more than a little presumptuous to do this, especially since this author has no experience whatsoever in drafting statutes, the challenge was irresistible.  Set forth below, therefore, borrowing liberally from the Uniform Mediation Act and other sources, is a suggested "alternative MLICC" that is the consequence of the analysis and conclusions arrived at in this paper:

ALTERNATIVE MODEL LAW ON COMMERCIAL CONCILIATION

Article 1.  Scope of Application

1.This Law applies to commercial conciliation, as defined in Article 2, subject to any agreement in force between this State and any other State or States.

2.The provisions of this Law apply only if the place of conciliation is in the territory of this State, as determined in accordance with paragraph 3 hereof.  Notwithstanding the foregoing, Articles 13, 14, 15 and 16 (Relating to admissibility of evidence in other proceedings), 18 (Conciliator acting as arbitrator), 19 (Resort to arbitral or judicial proceedings) and 20 (Enforceability of settlement agreement) of this Law shall also apply to conciliations held outside the territory of this State.

3.The place of conciliation shall be as agreed upon by the conciliation parties or, in the absence of such agreement, as determined by the conciliator.

4.This Law also applies to a commercial conciliation when the conciliation parties agree to the applicability of this Law.

5.This Law applies to all forms of conciliation, irrespective of the basis upon which the conciliation is carried out, including agreement between the conciliation parties whether reached before or after a dispute has arisen, an obligation established by law, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity.

6.Notwithstanding any contrary provision of this Law, this Law does not apply to:

(a)Cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement; and

(b)[…].

Article 2.  Definitions

1."Commercial" means pertaining to relationships between merchants (as distinguished from relationships with consumers and employees) and shall be deemed to include all matters arising from any relationship of a commercial nature, whether contractual or not.  Relationships of a commercial nature include the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

2."Conciliation" means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, in which a conciliator facilitates communication and negotiation between conciliation parties with the objective of reaching an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship.  The conciliator does not have the authority to impose upon the conciliation parties a solution to the dispute.

3."Conciliation administrative institution" means a person that holds itself out as an organization that assists conciliation parties in the appointment of conciliators and the administration and/or conduct of the conciliation.

4."Conciliation communication" means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a conciliation or is made for the purposes of considering, conducting, participating in, initiating, continuing, or reconvening a conciliation or retaining a conciliator.

5."Conciliation party" means a person that participates in a conciliation and whose agreement is necessary to resolve the dispute.

6."Conciliator" means an neutral individual who holds himself or herself out as a conciliator who, or a panel of two or more neutral individuals who hold themselves out as conciliators that, conducts a conciliation.  The word conciliator includes any person designated by the conciliation parties or such conciliator either to assist in the conciliation or to communicate with the participants in preparation for a conciliation, whether or not such person is employed by a conciliation administrative institution.

7."Nonparty participant" means a person, other than a party or conciliator, that participates in a conciliation.

8."Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

9."Proceeding" means:

(a)a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery; or

(b)a legislative hearing or similar process.

10."Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

11."Sign" means:

(a)to execute or adopt a tangible symbol with the present intent to authenticate a record; or

(b)to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

12."Writing" means handwriting, typewriting, printing, photostatting, photographing and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.

Article 3.  Interpretation

1.In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

2.Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based, including without limitation (a) to promote the uniformity of this Law, (b) to promote international harmonized legal solutions concerning the integrity of the conciliation process, (c) to promote active party involvement and party autonomy with respect to the internal workings of the conciliation process, (d) to promote frank and open discussions of parties by ensuring confidentiality of the process, and (e) to support changes in the process arising from technological developments.

Article 4.  Mandatory and Non-mandatory provisions

1.Except as provided in paragraph 2 of this Article 4, the provisions of this Law are mandatory in nature and have effect notwithstanding any agreement to the contrary.

2.The provisions of Articles 5, 7, 9, paragraph 4, 10, 11, and 18 of this Law (the "non-mandatory provisions") allow the parties to make their own arrangements by agreement but provide rules that apply in the absence of such agreement.

Article 5.  Agreements to be in Writing

1.The provisions of this Law apply only where the conciliation agreement is in writing, and any other agreement between the parties as to any matter shall be effective for the purposes of this Law only if in writing.  The expressions "agreement", "agree" and "agreed" shall be construed accordingly.

2.There is an agreement in writing -

(a)if the agreement is made in writing (whether or not it is signed by the parties),

(b)if the agreement is made by exchange of communications in writing, or

(c)if the agreement is evidenced in writing.

3.Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.

4.An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.

5.An exchange of written submissions in proceedings before a court, arbitral tribunal or competent governmental entity, in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.

Article 6.  Commencement of conciliation

1.When a statutory provision, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity has directed or suggested the parties to engage in conciliation, such conciliation shall be deemed to commence on the date of the implementation of such statutory provision, or the order or suggestion of such court, arbitral tribunal or competent governmental entity. 

2.When there exists between the parties a pre-dispute agreement to conciliate, the conciliation shall be deemed to commence on the date one party's notice setting forth a request to conciliate is sent to the conciliation administrative institution, if one has been selected in the pre-dispute agreement, or, in the absence of such institution, to the other party or parties.

3.In the event the parties have entered into an agreement to conciliate after the dispute has arisen, the conciliation shall be deemed to commence on the date on which the last party that has to sign the agreement for it to become effective has signed such agreement.

4.The commencement of a conciliation in accordance with this Article 6 shall be evidenced by a writing.

5.Any agreement to conciliate shall be deemed to require that each party thereto at a minimum shall participate in the appointment of the conciliator and attend the first meeting with the conciliator.

Article 7.  Suspension of limitation period

1.When the conciliation commences as provided in Article 6 hereof, the running of the limitation period regarding the claim that is the subject matter of the conciliation is suspended.

2.Where the conciliation proceedings have terminated without a settlement agreement, the limitation period resumes running from the time the conciliation ended as provided in Article 17 without a settlement agreement.

Article 8.  Minimum requirements relative to the appointment of conciliators

1.When the parties have not appointed a conciliator by mutual agreement and the appointment of the conciliator is to be made by a person acting as the appointing authority, in recommending or appointing individuals to act as conciliator such appointing authority (which may, but need not, be the conciliation administrative institution) shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, where appropriate, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

2.When a person is approached in connection with his or her possible appointment as conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.  A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him or her.

Article 9.  Conduct of conciliation

1.The conciliation parties are free to agree, by reference to a set of rules or otherwise, on the manner in which the conciliation is to be conducted.

2.In the event the conciliation parties have failed to agree on a set of rules to govern the appointment of the conciliator and/or the internal procedures of the conciliation, such appointment and/or internal procedures will be governed by the [UNCITRAL Conciliation Rules as amended] [283] in effect on the day that the conciliation commences in accordance with Article 6.

3.In any case, in conducting the conciliation, the conciliator shall seek to maintain fair treatment of the conciliation parties and, in so doing, shall take into account the circumstances of the case.  The foregoing shall not apply to the settlement agreement.  Unfair treatment of the conciliation parties by the conciliator shall not be deemed to be a ground on which the settlement agreement can be challenged.

4.The conciliator may, at any stage of the conciliation, make proposals for a settlement of the dispute.

Article 10.  Communication between conciliator and parties

The conciliator may meet or communicate with the conciliation parties together or with each of them separately.  If a panel of conciliators conducts the conciliation, the panel shall use its best efforts to meet as the entire panel with the conciliation parties together or with each of the conciliation parties separately.

Article 11.  Disclosure of conciliation communications during the conciliation

1.The conciliator shall hold in confidence all conciliation communications disclosed to the conciliator by a conciliation party, and the conciliator shall not disclose the substance of any such conciliation communication to any other conciliation party or non-party participant unless the disclosing party specifically authorizes the conciliator that such communication need not be kept confidential, in which event the conciliator may disclose the substance of such conciliation communication to any other conciliation party or non-party participant. 

2.Any alleged violation of this provision by the conciliator shall not be deemed to be a ground on which the settlement agreement can be challenged.

Article 12.  Confidentiality

1.All conciliation communications shall remain confidential, except to the extent that (a) all conciliation parties agree otherwise, or (b) urgent reasons require disclosure under the law or for the purpose of enforcement of the settlement agreement.  The exception set forth in subparagraph (b) hereof applies only if and to the extent that a public policy clearly outweighs the interest of keeping conciliation communications confidential.

2.Any alleged violation of this provision by the conciliator shall not be deemed to be a ground on which the settlement agreement can be challenged.

Article 13.  Privilege against disclosure; admissibility of evidence in other proceedings

1.Except as otherwise provided in Article 14, a conciliation communication is privileged as provided in paragraph 2 hereof and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by this Law.

2.In a proceeding, the following privileges apply:

(a)A conciliation party may refuse to disclose, and may prevent any other person from disclosing, a conciliation communication.

(b)A conciliator may refuse to disclose a conciliation communication, and may prevent any other person from disclosing a conciliation communication of the conciliator.

(c)A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a conciliation communication of the nonparty participant.

3.Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a conciliation.

Article 14.  Waiver and preclusion of privilege

1.A privilege under Article 13 may be waived in a record or orally during a proceeding if it is expressly waived by all conciliation parties and:

(a)in the case of the privilege of a conciliator, it is expressly waived by the conciliator; and

(b)in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

2.A person that discloses or makes a representation about a conciliation communication that prejudices another person in a proceeding is precluded from asserting a privilege under Article 13, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

3.A person that intentionally uses a conciliation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Article 13.

Article 15.  Exceptions to privilege.

1.There is no privilege under Article 13 for a conciliation communication that is:

(a)in an agreement evidenced by a record signed by all parties to the agreement;

(b)available to the public under [insert statutory reference to open records or similar act] or made during a session of a conciliation which is open, or is required by law to be open, to the public;

(c)a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(d)a statement showing a significant threat to public health and safety;

(e)intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(f)sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a conciliator; or

(g)except as otherwise provided in paragraph 3 hereof, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a conciliation party, nonparty participant, or representative of a party based on conduct occurring during a conciliation.

2.There is no privilege under Article 13 if a court, arbitral tribunal or other competent governmental entity finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the conciliation communication is sought or offered in:

(a)a court proceeding involving a felony [or misdemeanor]; or

(b)except as otherwise provided in paragraph 3 hereof, a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, an agreement arising out of the conciliation.

3.A conciliator may not be compelled to provide evidence of a conciliation communication referred to in paragraph 1 (f) or 2 (b).

4.If a conciliation communication is not privileged under paragraphs 1 or 2 of this Article 15, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under paragraph 1 or 2 does not render the evidence, or any other conciliation communication, discoverable or admissible for any other purpose.

Article 16.  Prohibited conciliator reports.

1.Except as required in paragraph 2 hereof, a conciliator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a conciliation to a court, arbitral tribunal or competent governmental entity that may make a ruling on the dispute that is the subject of the conciliation.

2.A conciliator may disclose:

(a)whether the conciliation occurred or has terminated, whether a settlement was reached, and attendance;

(b)a conciliation communication as permitted under Article 15; or

(c)a conciliation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.

3.A communication made in violation of paragraph 1 hereof may not be considered by a court, arbitral tribunal or competent governmental entity that may make a ruling on the dispute that is the subject of the conciliation.

Article 17.  Termination of conciliation

The conciliation is terminated:

(a)By the signing of a settlement agreement by the conciliation parties that fully resolves the dispute, on the date of the agreement;

(b)By a declaration of the conciliator, after consultation with the conciliation parties, to the effect that further efforts at conciliation are no longer justified, on the date of that declaration;

(c)By a declaration of the conciliation parties addressed to the conciliator to the effect that the conciliation is terminated, on the date of the declaration; or

(d)Provided that the first conciliation session has taken place, by a declaration of a conciliation party to the other conciliation party or parties and the conciliator to the effect that the conciliation is terminated, on the date of the declaration.

Article 18.  Conciliator acting as arbitrator

1.The conciliator shall not act as an arbitral tribunal in respect of a dispute that was or is the subject of the conciliation or in respect of another dispute that has arisen from the same contract or legal relationship or any related contract or legal relationship.

2.Notwithstanding the foregoing, if during the conciliation the conciliation parties reach agreement on a settlement of the dispute, they may appoint an arbitral tribunal, including by appointing the conciliator or a member of the panel of conciliators, and request the arbitral tribunal to record the settlement in the form of an arbitral award on agreed terms.

Article 19.  Resort to arbitral or judicial proceedings

During a conciliation the conciliation parties shall not initiate any arbitral or judicial proceedings in respect of a dispute that is the subject of the conciliation, and a court, arbitral tribunal or competent governmental entity shall give effect to this obligation.  Either party may nevertheless initiate arbitral or judicial proceedings to the extent such proceedings are reasonably necessary for preserving its rights.  Initiation of such proceedings is not of itself to be regarded as a termination of the conciliation.

Article 20.  Enforceability of settlement agreement

1.If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable … [the enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement].

2.An award on agreed terms as provided for in Article 18, paragraph 2, shall be made in accordance with the applicable provisions of the arbitration act of the State in which the award is rendered and shall state that it is an award. Such an award shall have the same status and effect as any other arbitral award on the merits of the case under the laws of this State.

________________________________________________________________________________________________________

End Notes:

1. > Eric van Ginkel International Counsel, Hughes Hubbard & Reed LLP, Los Angeles.  Mr. Van Ginkel holds J.D. degrees from Leiden University Faculty of Law in the Netherlands and Columbia University School of Law.  Mr. Van Ginkel also holds an LL.M. degree in International Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University School of Law.  The author wishes to thank Professor Roger Alford of Pepperdine University School of Law for his valuable comments and feedback.
   

1. 1.The difference between “mediation” and “conciliation”, if any, does not appear to be meaningful, especially if the proceedings are confidential.  In the employment context, the British agency ACAS distinguishes between conciliation and mediation, seeing mediation as a more “positive” form of third party intervention than conciliation.  Under the ACAS system, unlike the conciliator, the mediator makes definite (non-binding) recommendations as to the terms of settlement of the dispute.  A similar distinction appears to be drawn in the employment practice of Greece, Ireland, Italy, Portugal, and Spain.  In contrast, the Report of the Secretary-General, Settlement of commercial disputes, Preparation of uniform provisions on: written form of arbitration agreements, interim measures of protection, and conciliation, September 22, 2000, A/CN/WG.II/WP.110, at www.uncitral.org (last visited April 6, 2003), points out that in other jurisdictions it is the conciliator who takes on the more active, evaluative role, while the mediator would be expected to play merely a facilitative role.  In nearly all instances it is noted that the uncertain borderline between the two types of dispute resolution means that in practice the two words are often used as if they are synonymous.  The distinction does not seem to exist in the other countries of the European Union.  See, generally, www.eurofound.eu.int.emire (last visited March 30, 2003).  As the term “conciliation” is rarely used in the United States and Canada, the distinction between mediation and conciliation is meaningless for those countries.  But see Christopher W. Moore, The Mediation Process 161 (Jossey-Bass 2d Ed. 1996), who defines conciliation as “the psychological component of mediation, in which the third party attempts to create an atmosphere of trust and cooperation that promotes positive relationships and is conducive to negotiations.”
   

          As in the MLICC, this paper mostly uses the term “conciliation” to indicate a broad notion encompassing all these different procedures.

2. 2.UNCITRAL adopted at its 11th session (30 May - 16 June 1978) a new program in which it requested the Secretary-General to submit to it a report on “Conciliation of international trade disputes and its relation to arbitration and to the UNCITRAL Arbitration Rules”.  Professor Pieter Sanders (The Netherlands), who had also been involved in the drafting of the Arbitration Rules (adopted in 1976), acted as a consultant to the Secretariat in drafting the UNCITRAL Conciliation Rules.  The draft Conciliation Rules were published in 1979.  10 Yearbook of the United Nations Commission on International Trade Law 89, 93 (1979).  See also, e.g., Carl August Fleischauer, UNCITRAL and International Commercial Dispute Settlement, Arb. J., Dec. 1983, 9-13.
   

3. 3.UNCITRAL Conciliation Rules, available at www.uncitral.org (last visited on April 6, 2003).
   

4. 4.Stephen K. Huber and E. Wendy Trachte-Huber, International ADR in the 1990’s: the Top Ten Developments, 1 Hous. Bus. & Tax L.J. 184, 220-21 (2001)
   

5. 5.See Julie Barker, International Mediation - A Better Alternative for the Resolution of Commercial Disputes: Guidelines for a U.S. Negotiator Involved in an International Commercial Mediation with Mexicans, 19 Loy. L.A. Int’l & Comp. L.J. 1, 7 (1996).
   

6. 6.Ibid.
   

7. 7.For a different view, see Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81.  Ms. Hensler emphasizes that civil court calendars contain a large number of disputes between strangers in which the traditional remedy is monetary compensation.  She opposes court-mandated transformative mediation because self-realization and self-empowerment are inappropriate goals for a public justice system.
   

8. 8.See Barker, supra note 5, at 7-8.
   

9. 9.States of the United States that have adopted mediation statutes that are intended to have across-the-board application include: Ariz. Rev. Stat. Ann. § 12-2238 (West 1993); Ark. Code Ann. § 16-7-206 (Michie 1993); Cal. Evid. Code § 1115, et seq. (West 1997); Iowa Code § 679C.2 (1998); Kan. Stat. Ann. § 60-452 (1964); La. Rev. Stat. Ann. § 9:4112 (West 1997); Code Me. R. Evid. § 408 (1993); Mass. Gen. Laws ch. 233, § 23C (1985); Minn. Stat. Ann. § 595.02 (West 1996); Neb. Rev. Stat. § 25-2914 (1997); Nev. Rev. Stat. § 48.109(3) (1993); N.J. Rev. Stat. § 2A:23A-9 (1987); Ohio Rev. Code Ann. § 2317.023 (West 1996); Okla. Stat. tit. 12, § 1805 (1983); Or. Rev. Stat. § 36.220 (1997); 42 Pa. Cons. Stat. Ann. § 5949 (West 1996); R.I. Gen. Laws § 9-19-44 (1992); S.D. Codified Laws § 19-13-32 (Michie 1998); Tex. Civ. Prac. & Rem. Code § 154.053 (c) (1999); Utah Code Ann. § 30-3-38(4) (2000); Va. Code Ann. § 8.01-576.10 (1994); Wash. Rev. Code § 5.60.070 (1993); Wis. Stat. § 904.085(4)(a) (1997); Wyo. Stat. Ann. § 1-43-103 (Michie 1991).
   

10. 10.See, e.g., Costa Rica Ley No 7727, Resolución Alterna de Conflictos y Promoción de la Paz Social (Law on Alternative Resolution of Disputes and Promotion of Freedom from Social Unrest), available at http://www.sice.oas.org/DISPUTE/COMARB/Costa_Rica/L7727sA.asp (last visited on April 19, 2003); Hong Kong Arbitration Ordinance, Cap. 341, s 2A (1997), available at http://www.justice.gov.hk/blis.nsf (last visited on April 19, 2003); India Arbitration and Conciliation Act (1996), available at http://www.laws4india.com/acts/aca/arbi-concact.asp (last visited on April 19, 2003); Singapore International Arbitration Act, Articles 16 and 17 (2002), available at http://agcvldb4.agc.gov.sg (last visited on April 19, 2003).  Obviously, this represents only a very small sample of the existing legislation in the area of conciliation.
    

11. 11.“Un fourre-tout recouvrant une série hétéroclite de systèmes divers, tendant au règlement des litiges autrement qu’ un jugement ou une sentence arbitrale.” in Jean-Claude Goldsmith, Les modes de règlement amiable des différends ("RAD"), Revue de Droit des Affaires Internationales/International Business Law Journal [R.D.A.I./IBLJ], no 2, 1996, quoted in Livre Vert sur les Modes Alternatifs de Résolution des Conflits relevant du droit civil et commercial, Réaction de la Chambre de commerce et d’industrie de Paris, p. 7, n.4 (2002) available at www.ccip.fr/etudes/archrap/rap02/sol0209.htm (last visited on July 9, 2003). 
    

12. 12.See Ron Kelly, Are you looking for the full text of California’s New Mediation Code Chapter - with the Official Legislative Intent?, www.ronkelly.com/RonKellyAB939Text.html.  Mr. Kelly was instrumental in the drafting of the new Mediation Chapter in California, Cal. Evid. Code §§ 1115-1128.
    

13. 13.Cal. Evid. Code §§ 1115-1128, comprising Chapter 2 of the Evidence Code, added by Stats.1997, c.772 (A.B.939), §  3.
    

14. 14.See Prefatory Note, Part 3, "Importance of Uniformity".  The text of the Uniform Mediation Act, with Prefatory Note and Comments, are available at http://www.law.upenn.edu/bll/ulc/mediat/UMA2001.htm (last visited on April 20, 2003).
    

15. 15.Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. 
    

16. 16.Report of the United Nations Commission on International Trade Law on the work of its thirty-first session (1998), Official Records of the General Assembly, Fifty-third Session, Supplement No. 17, A/53/17, para. 235, available at http://www.uncitral.org (last visited on April 19, 2003).  See also Possible Future Work in the Area of International Commercial Arbitration, Note by the Secretariat of 6 April 1999 in preparation of the 32d Session of UNCITRAL in Vienna, 17 May - 4 June 1999, A/CN.9/460, available at http://www.uncitral.org (last visited on April 19, 2003).  "The Commission may wish to consider whether, with a view to encouraging and facilitating conciliation, it would be useful for it to consider preparing harmonized legislative model provisions that would deal with questions such as the admissibility of evidence submitted during conciliation in subsequent arbitration or court proceedings; any role that a conciliator might play in subsequent arbitral proceedings; and the conditions under which a settlement reached during conciliation proceedings may be treated as an executory title." Id., Para. 19.
    

17. 17.Resolution No. 57/18 dated November 19, 2002, adopted by the General Assembly, distributed January 24, 2003, available at www.uncitral.org.
    

18. 18.In the opening speech at UNCITRAL's 33rd Session, Under-Secretary-General for Legal Affairs Mr. Hans Corell expressed concern that there was a "disturbing amount of overlapping or even outright conflicting initiatives being taken by various global and regional organizations" with respect to the development of uniform or harmonizing legislation.  He found that "[T]his 'multilaterally-funded disunification of law'" constituted a "particularly disturbing phenomenon, as it hits at the heart of UNCITRAL's mandate."  Opening Speech at UNCITRAL's 33rd Session by Mr. Hans Corell, Under-Secretary-General for Legal Affairs, The Legal Counsel, New York, 12 June 2000, available at www.un.org/law/counsel/uncitral.htm (last visited on April 2, 2003).
    

19. 19.See, supra note 14.
    

20. 20.Green paper on alternative dispute resolution in civil and commercial law, April 19, 2002, COM(2002) 196, available at http://europa.eu.int/eur-lex/en/com/gpr/2002/com2002_0196en01.pdf (last visited on July 9, 2003).
    

21. 21.See Summary of responses to the Green Paper on alternative dispute resolution in civil and commercial law, dated January 31, 2003, available at http://europa.eu.int/comm/justice_home/ejn/adr/adr_ec_en.pdf (last visited on July 9, 2003)
    

22. 22.In order to avoid confusion with the many different model laws UNCITRAL has adopted over the years, most notably the Model Law on International Commercial Arbitration, infra note 60, the Model Law on International Commercial Conciliation will generally be referred to herein as “MLICC”.
    

23. 23.Resolution 57/18, 52nd Plenary Meeting, Official Records of the General Assembly, A/RES/57/18,  available at www.uncitral.org.
    

24. 24.The most recent draft reviewed for this paper is dated March 12, 2003, available at http://www.law.upenn.edu/bll/ulc/mediaticca/mar03draft.htm (last visited on April 20, 2003).
    

25. 25.ICC ADR Rules (effective July 1, 2001), available at http://www.iccwbo.org/index_adr.asp (last visited on July 9, 2003).
    

26. 26.AAA Commercial Arbitration Rules and Mediation Procedures (as amended and effective on July 1, 2003), available at www.adr.org/index2.1.jsp?JSPssid=15747. (last visited on July 9, 2003)
    

27. 27.LCIA Mediation Procedure (effective October 1, 1999), available at www.lcia-arbitration.com/lcia/download/mediation.pdf (last visited on April 13, 2003).
    

28. 28.Rules of the Mediation Institute of the Stockholm Chamber of Commerce (effective April 1, 1999), available at www.chamber.se/arbitration/english/rules/mediation.pdf  (last visited on July 9, 2003).
    

29. 29.CPR Mediation Procedure (effective April 1, 1998), available at www.cpradr.org under "Procedures & Clauses" (last visited on April 13, 2003).
    

30. 30.For a list of the organizations that provide international mediation services, see www.amim.mb.ca/intladrorg.htm (last visited on February 21, 2003).
    

31. 31.The International Centre for Settlement of Investment Disputes ("ICSID") is a public international organization created under a treaty, the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the "ICSID Convention").  The Convention formulated by the Executive Directors of the World Bank and submitted by them on March 18, 1965 to member States of the Bank for consideration, entered into force on October 14, 1966.  ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings ("Institution Rules"), available at www.worldbank.org/icsid/basicdoc/57.htm (last visited on April 13, 2003).  Recently, ICSID adopted new rules, the so-called ICSID Additional Facility Rules, which include revised rules for ICSID conciliation proceedings.  Available at http://www.worldbank.org/icsid/ICSID_Addl_English.pdf (last visited on April 19, 2003).
    

32. 32.The Geneva-based World Intellectual Property Organization established what is called the WIPO Arbitration and Mediation Center in 1994 to offer arbitration and mediation services for the resolution of international commercial disputes between private parties, particularly (but not exclusively) disputes involving intellectual property issues.  WIPO Mediation Rules (effective October 1, 1994), available at http://arbiter.wipo.int/mediation/rules/ (last visited on April 13, 2003).
    

33. 33.The Commercial Arbitration and Mediation Center for the Americas (CAMCA) was founded by the American Arbitration association, the British Columbia International Commercial Arbitration Centre, the Mexico City National Chamber of Commerce, and the Québec National and International Commercial Arbitration Centre to provide commercial parties involved in trade in the NAFTA free trade area with an international forum to settle disputes.  CAMCA Mediation and Arbitration Rules (effective March 15, 1996) available at http://www.sice.oas.org/dispute/comarb/camca/camtoc_e.asp (last visited on April 13, 2003).
    

34. 34.Only the English language version has been considered for this paper.  It is possible that other language versions may lead to different interpretations.
    

35. 35.See A/CN.9/460, supra note 16, at 3-6.
    

36. 36.Report of the Secretary-General, Possible uniform rules on certain issues concerning settlement of commercial disputes; conciliation, interim measures of protection, written form of arbitration agreement, January 14, 2000, A/CN.9/WG.II/WP.108, available at www.uncitral.org, at 43-62.
    

37. 37.item (i) is reflected in Article 10; (ii) in Article 12; (iii) in Article 14 (such as it is); item (iv) was not included; (v) is reflected in Article 13; item (vi) only made it as a footnote to Article 4; (vii) is reflected in Article 7; and item (viii) is reflected in Article 6.
    

38. 38.Id. at 26 (para. 81).
    

39. 39.See, e.g., Ellen E. Deason, Reply: The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marq. L. Rev. 79 (2001) and authors cited therein.
    

40. 40.Cf. the fact pattern in Rojas v. Los Angeles County Superior Court, 102 Cal.App.4th 1062 (2002) (Not Citable - Superseded by Grant of review (en banc); Depublished: Rojas v. L.A. County Superior Court, 63 P.3d 212 (Cal., Jan. 15, 2003)).
    

41. 41.See the discussion of Article 10(1), infra notes 190-236 and accompanying text.
    

42. 42.See infra note 49 and accompanying text.
    

43. 43.See, e.g., Draft Guide at 6 (para. 14) ("The objectives of the Model Law … include encouraging the use of conciliation… The prevailing view that emerged in the Commission was that it would be worthwhile to explore the possibility of preparing uniform legislative rules to support the increased use of conciliation")
    

44. 44.The Preliminary Draft of the Rules, prepared by the Secretary-General, A/CN.9/166, is dated March 26, 1979.  It can be found, together with the commentary on these draft Rules, in 10 Yearbook of the United Nations Commission on International Trade Law 89-100 (1979) (herein "Yearbook"), available at www.uncitral.org.
    

45. 45.See supra note 32.
    

46. 46.See supra note 29.
    

47. 47.Article 8 MLICC.
    

48. 48.WIPO Mediation Rules, supra note 32, Articles 11 and 12 (c). 
    

49. 49.See, e.g., Ellen E. Deason, Predictable Mediation Confidentiality in the U.S. Federal System, 17 Ohio St. J. Disp. Resol. 239, 245 (2002) (“Confidentiality is a key element in encouraging this three-way communication process.  Within the mediation process, mediators emphasize that they will not convey statements made in confidence in a caucus.”)
    

50. 50.See Report of the Working Group on Arbitration on the work of its thirty-fifth session (Vienna, 19-30 November 2001), December 21, 2001, A/CN.9/506, at 22 (para. 78-79), available at www.uncitral.org
    

51. 51.Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001 through 154.073 (1999), originally adopted in 1987. 
    

52. 52.See supra notes 12 and 13.
    

53. 53.Wash. Rev. Code § 5.60.070 (1993).
    

54. 54.Supra note 14.
    

55. 55.Supra notes 20-21 and accompanying text.
    

56. 56.Draft Guide to Enactment and Use of the UNCITRAL Model Law on International Commercial Conciliation, May 27, 2002, A/CN.9/514, available at www.uncitral.org.  At the time of this writing, the final Guide had not yet been completed.
    

57. 57.Draft Guide at 6 (para. 20-23). 
    

58. 58.In earlier drafts, Article 1 dealt with the scope of application (including the place of conciliation as being the principal determining factor for the applicability of the Law of a particular country), Article 2 dealt with the definition of conciliation, and Article 3 dealt with the definition of “international”.  The reasons why they were consolidated into one single article are not revealed.  See Report A/CN.9/506, supra note 50, at 5-12 (paras.14-37).
    

59. 59.See the discussion infra notes 100 - 106 and accompanying text.
    

60. 60.UNCITRAL Model Law on International Commercial Arbitration, available at www.uncitral.org (herein "Model Law on Arbitration").
    

61. 61.For a more detailed discussion of the undesirability of distinguishing between domestic and international conciliation, see infra notes 89 - 96 and accompanying text.
    

62. 62.Draft Guide at 10 (para. 32).
    

63. 63.See Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, 20 November - 1 December 2000), December 20, 2000, A/CN.9/485, at 30 (paras.117-120), available at www.uncitral.org.
    

64. 64.Ibid.
    

65. 65.See Report of the Working Group on Arbitration on the work of its thirty-fourth session (New York, 21 May - 1 June 2001), June 15, 2001, A/CN.9/487, at 25 (para. 88), available at www.uncitral.org (last visited on April 15, 2003).
    

66. 66.Id., at 26 (para. 91).
    

67. 67.Id., at 26 (para. 92).
    

68. 68.Ibid.
    

69. 69.Id., at 26 (para. 93).
    

70. 70.See A/CN.9/506, supra note 50, at 5 (para. 5).
    

71. 71.Id., at 7 (para. 18).
    

72. 72.Ibid.
    

73. 73.Id. at 7 (para. 19).
    

74. 74.Id. at 8 (para. 20).
    

75. 75.Ibid.
    

76. 76.Id. at 8 (para. 21).
    

77. 77.Article 1(2) of the Model Law on Arbitration, supra note 60, reads as follows: 
    

78. (2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory of this State. 
    

78. 78. Perhaps a case could be made to declare the Model law to be applicable to all conciliations that somehow become relevant within the territory of the enacting country.
    

79. 79.Deason, supra note 39, at 84-105, notably at 95-101 where Professor Deason discusses the uncertainty in the determination of applicable law. 
    

80. 80.Id. at 86.
    

81. 81.Whether or not the definition of “mediator” should include a reference to her “neutrality” or "impartiality" has been the subject of some debate.  It would seem that this is largely a function of one’s understanding of the meaning of these words.  Professor Christopher Moore suggests there is a distinction between neutrality and impartiality, neutrality referring to the relationship or behavior between the conciliator and the disputants, whereas impartiality refers to the absence of bias or preference in favor of one or more of the disputants, their interests or any specific solution.  Christopher W. Moore, The Mediation Process 52 (Jossey Bass, 2d Ed. 1996).  But at the same time, as Professor Moore points out, “[i]mpartiality and neutrality do not mean that a mediator may not have a personal opinion about a desirable outcome to a dispute.  No one can be entirely impartial.” Ibid.  See also Kenneth Cloke, Mediating Dangerously 12-13 (Jossey-Bass 2001)  (“[T]here is no such thing as genuine neutrality when it comes to conflict.” Id., at 12; and: “What is most useful to mediators in the concept of neutrality is not its emphasis on formality, perspective, objectivity, logic, or dispassionate judgment, but its concern for fairness and lack of selective bias.  Parties most often want mediators to be honest, empathic, and “omnipartial” meaning on both parties’ sides at the same time.” Id. at 13.)
    

82. 82.See Alan Kirtley, The Mediation Privilege's Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, 1995 J. Disp. Resol. 1,  6.
    

83. 83.Some may argue that it is preferable to add the word “informal”, but in some jurisdictions conciliations may well take on a more formal character, so that such an adjective would not be correct in all instances.  Conciliation is also a flexible process.  Ibid., n.17.  Article 6(1) MLICC demonstrates this flexibility.
    

84. 84.See Note by the Secretariat, Settlement of commercial disputes: Model legislative provisions on international commercial conciliation, September 19, 2001, A/CN.9/WG.II/WP.115, at 6 (para. 10); A/CN.9/506, supra note 50, at 10 (para.29).  It would appear that the various fears expressed by members of the Working Group could have been overcome by careful drafting.  The only place where “independent and impartial” survived is Article 5(4) MLICC.
    

85. 85.Some may argue that it would have been relevant to point out that each disputant’s participation in the conciliation process is voluntary.  The process is voluntary even if under some rules a minimum amount of participation is required once the disputants have been ordered, or agreed, to conciliation, whether pursuant to a court-mandated system or pursuant to contractually agreed upon conciliation.  For example, under Article 6(1)(b) of the ICC ADR Rules, the parties commit themselves to attend the first meeting with the Neutral, to discuss the settlement technique to be used and the specific ADR procedure to be followed.  See also CPR Mediation Procedure, supra note 29, Rule 3b.  In the United States, continuing participation in conciliation proceedings is generally required only in certain labor disputes.  See Kirtley, supra note 82, at 6, n.20.
    

86. 86.See supra note 58.
    

87. 87.Emphasis added.
    

88. 88.See the discussion relating to the place of conciliation supra at notes 69 - 78.
    

89. 89.See supra notes 63 - 64 and accompanying text.
    

90. 90.Draft Guide at 9, para. 32.
    

91. 91.Of course, with the stated option for the enacting country to apply the Model Law equally to domestic conciliation.  See Footnote 1 to Article 1(1) MLICC.
    

92. 92.See A/CN.9/485, supra note 63, at 30 (paras. 117-118); A/CN.9/WG.II/WP.115, supra note 84, at 7 (para. 12).
    

93. 93.See supra note 24.
    

94. 94.The same argument applies to a dual system of domestic and international arbitration.  See Eric van Ginkel, Reframing the Dilemma of Expanded Judicial Review: Arbitral Appeal vs. Vacatur, 3 Pepp. Disp. Resol. L.J. 157, 205 (2003).
    

95. 95.For a discussion of Article 10 MLICC, see infra, notes 190 - 258 and accompanying text.
    

96. 96.Actually, Sections 85-87 of the English Arbitration Act of 1996 never became effective, because just after the Act had received Royal Assent but before it was brought into force, the Court of Appeal found that the distinction between domestic and international arbitration was incompatible with European Community Law (on the ground that it amounted to a restriction on the freedom to provide services contrary to Article 59 of the Treaty of Rome, and/or was unlawful discrimination contrary to Article 6).  See Andrew Hughes and Ben Pilling, The Arbitration Act five years on, 2001 NLJ 151.7002 (1432).
    

97. 97.Draft Guide at 9 (para. 32)
    

98. 98.See supra text following note 75 and text accompanying note 77.
    

99. 99.See A/CN.9/WG.II/WP.115, supra note 84, at 7 (para. 13).
    

100. 100.Supra text following note 37.
     

101. 101.Draft Guide at 9 (para. 33).
     

102. 102.Ibid.
     

103. 103.Supra notes 39 - 40 and accompanying text.
     

104. 104.There are also problems that flow from treating this as a purely evidentiary issue.  Reason why the UMA elected to treat confidentiality in conciliation as an issue of privilege.  See the discussion of Article 10, infra at notes 190 - 236.
     

105. 105.See Draft Model Law on International Commercial Conciliation, Compilation of comments by Governments and international organizations, April 12, 2002, A/CN.9/513, at 6, available at www.uncitral.org
     

106. 106. Supra note 102 and accompanying text
     

107. 107. Draft Guide at 10 (para. 35)
     

108. 108. Ibid
     

109. 109. Id., at 11 (para. 36).
     

110. 110.Id., at 11 (para. 37).
     

111. 111.Id., at 11 (para. 38).
     

112. 112.See supra notes 109 - 110 and accompanying text.
     

113. 113.Section 4, English Arbitration Act 1996.
     

114. 114.See supra note 25.
     

115. 115.See supra note 29.
     

116. 116.Cf. Deason, supra note 39, at 84-104.
     

117. 117.Id.
     

118. 118.See Report of the Working Group, A/CN.9/485, supra note 63, at 32 (para. 127).
     

119. 119.Cal. Evid. Code § 1125.
     

120. 120.Accord, Comment by the Permanent Court of Arbitration, A/CN.9/513, supra note 105, at 8.
     

121. 121.See infra notes 271 - 276 and accompanying text.
     

122. 122.See, e.g., Article 2A ICC ADR Rules, supra note 25.
     

123. 123.The CPR Mediation Procedure, supra note 29, does not include a specific reference as to when the mediation commences or ends.
     

124. 124.See, e.g., Cal. Rules of Court, Appx, Local Rules, Ct App, 1st Dist, R 3.5(h) (2003); U.S. Bankruptcy Court - C.D. Cal. Bankr. L.B.R. Appx. III, Rule 7.10 (2002).
     

125. 125.i.e. most likely to be a rule that can be adopted in all enacting jurisdictions.
     

126. 126.The approach of making separate rules between pre- and post-dispute agreements to conciliate is consistent with the approach taken in Article 2 ICC ADR Rules.
     

127. 127.See the discussion infra at notes 136 - 140.
     

128. 128.See, e.g., Cal. Evid. Code §§ 250 and 1122.
     

129. 129.Professor Kirtley, supra note 82, at 23, notes correctly that requiring written agreements to conciliate is not without its problems, citing conciliation programs that attempt to resolve disputes exclusively via telephone contacts and the fact that when emotions run high and the trust level correspondingly low parties may have great reluctance to sign anything.  He notes, however, that generally the state statutes that activate the mediation privilege when mediation occurs pursuant to a court order or an agreement between parties, require that such agreement be in writing.  Ibid.  The benefits of a written mediation agreement clearly outweigh these problems: for one, provided that the definition of writing is broad, the writing requirement for a telephonic mediation can be overcome fairly simply by exchange of e-mails.  For another, the emotional level of commercial mediations tends to be substantially lower than in the marital, labor and environmental disputes mentioned by Professor Kirtley.  Another solution (which resembles a broad definition of "writing") is set forth in Cal. Evid. Code § 1118, which provides that oral agreements that satisfy all four conditions set forth therein ((a) oral agreement is recorded, (b) the terms of the agreement are recited on the record in the presence of parties and mediator and parties express their agreement thereto, (c) parties expressly state agreement is enforceable, and (d) recording is reduced to writing and signed by the parties within 72 hours).
     

130. 130.It would also relate to a pre-dispute agreement to conciliate if the relevant clause does not include, at a minimum, an undertaking to appoint a conciliator and attend the first session.
     

131. 131.See Draft Guide at 13 (para. 42 in fine).
     

132. 132. Supra text accompanying notes 120 - 121.
     

133. 133. Comment by the Permanent Court of Arbitration, A/CN.9/513, supra note 105, at 8-9.
     

134. 134. The Permanent Court of Arbitration quotes Art. 18 WIPO Mediation Rules, Art. 3(b) CPR Mediation Procedure and Art. 2A ICC ADR Rules.  Id. at 9
     

135. 135. See, e.g., Mary Alice Robbins, It’s a Mediation Center, Not a Meditation Center, 16 Texas Lawyer No. 25, page 4 (1999); Commercial Mediation - Frequently Asked Questions for Solicitors, http://www.raworths.co.uk/med_civil_faq2.html (last visited on April 20, 2003); Arnaud Stimec, Comment savoir à quel type de médiateur on a à faire? Eléments pour une définition et une recherche de typologie des médiations en enterprise, http://www.cenego.com/publications/artobs_les_med.pdf (last visited on April 20, 2003).
     

136. 136. Comment by the government of Ecuador, A/CN.9/513, supra note 105, at 4.
     

137. 137. See Draft Guide at 13 (para.44); Report of the Working Group, A/CN.9/506, supra note 50, at 26 (para. 93).
     

138. 138. Report of the Working Group, A/CN.9/506, supra note 50, at 26 (para. 93).
     

139. 139. Ibid.
     

140. 140. Ibid.
     

141. 141. Some of the provisions set forth in paragraphs 1 through 4 of Article 5 were taken verbatim from Articles 3 and 4 UCR.  Article 4 UCR would benefit from being replaced, both because in paragraph 1 it follows a method of appointment that may create less than neutral conciliators and because in paragraph 2 it does not provide for an impasse or tie-breaking method in the event the parties cannot agree on a mutually acceptable conciliator.  Although an earlier draft of the Model Law contained a provision identical to Article 4 (1) UCR, the Working Group wisely backed away from the system that provided that each party would appoint one conciliator.
     

142. 142. See supra note 29.
     

143. 143. The Permanent Court of Arbitration is already performing this function in connection with the appointment of arbitrators in the event the parties have not selected an appointing authority, pursuant to Article 6, paragraph 2 of the UNCITRAL Arbitration Rules, available at www.uncitral.org/English/texts/arbitration/arb-rules.htm (last visited June 6, 2003).
     

144. 144. Such as the LCIA, ICC, AAA, ICC, JAMS or LCIA.
     

145. 145. Draft Guide at 15 (para. 47).
     

146. 146. Although Article 10(1) MLICC includes a reference to "those involved in the administration of the conciliation proceedings".
     

147. 147. See A/CN.9/506, supra note 50, at 19 (para. 65-66).
     

148. 148. See, for example, Section 24(1) of the English Arbitration Act of 1996; Articles 9 and 10 of the UNCITRAL Arbitration Rules of 1976; Article 8 of the AAA International Arbitration Rules (2001); Article 24 of the Arbitration Rules of the London Court of International Arbitration (1998); and Paragraph 7 of the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (1999).
     

149. 149. Revision of the Rules of Ethics is currently the subject of a working group of Committee D of the International Bar Association.  It was the subject of the Sixth IBA International Arbitration Day held in Sydney on February 13, 2003.  Earlier, at a Committee D meeting in Durban, October 2002, a first report of Committee D's Working Group Regarding Standard of Bias and Disclosure, was examined.  A session scheduled for the September 2003 Conference in San Francisco is intended to discuss, and it is hoped, adopt, the Working Group's final proposal. 
     

150. 150. Rustal Trading Ltd. v. Gill & Duffus S.A., [2000] 1 Lloyd's Rep. 14 (Q.B.)
     

151. 151. Id.
     

152. 152. The Model Standards of Conduct for Mediators were prepared from 1992 through 1994 by a committee made up of delegates from the American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution ("SPIDR"), which has since merged into the Association for Conflict Resolution, an organization resulting from the merger of SPIDR, the Academy of Family Mediators (AFM) and the Conflict Resolution Education Network (CRENet).  They are available at www.ilr.cornell.edu/alliance/model_standards_of_conduct_for_m.htm (last visited on February 23, 2003).
     

153. 153. Article III of the Model Standards of Conduct.  [emphasis added]
     

154. 154. Section 4 UMA provides separate and distinct privileges to any mediation party, any non-party participant and the mediator(s).  For a discussion of the difference between a privilege and a confidentiality provision based on contract, see infra notes 197 - 211 and accompanying text.
     

155. 155. ADR Institute of Canada, AMIC Code of Ethics, available at www.adrcanada.ca/rules/ethics.html (last visited on April 14, 2003).  [emphasis added]
     

156. 156. See supra note 13.
     

157. 157. California Rules of Court, Rules 1620 and 1622, Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases, adopted pursuant to Title V, Special Rules for Trial Courts—Division III, Alternative Dispute Resolution Rules for Civil Cases—Chapter 4, General Rules Relating to Mediation of Civil Cases, available at http://www.sbcadre.org/CADRe/rules/califrules1620.htm (last visited April 19, 2003).
     

158. 158. See e.g. Catherine Morris, Readings in Dispute Resolution: a Selected Bibliography Mediation Qualifications, Standards and Ethics, available at the website of the Cornell Institute on Conflict Resolution, http://www.ilr.cornell.edu/alliance/readings%20in%20Mediation%20Standards.htm (last visited on April 14, 2003).  Additional articles include: Jonathon A. Bayer, Practicing Law at the Margins: Surveying Ethics Rules for Legal Assistants and Lawyers who Mediate, 11 Geo. J. Legal Ethics 411 (1998), Jonathan L. Black-Branch, The Professional Status of Mediators, 28 Family Law 39 (1998), John Feerick, Carol Izumi, Kimberlee Kovach, Lela Love, Robert Moberly, Leonard Riskin, & Edward Sherman, Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. Disp. Resol. 95, Michelle D. Gaines, A Proposed Conflict of Interest Rule for Attorney-Mediators, 73 Wash. L. Rev. 699 (1998), Arthur Garwin, Double Identity: Ethics do not Disappear for Lawyers Who Serve as Mediators, 84 ABA J. 88 (1998), Carrie Menkel-Meadow, Ethics and Professionalism in Non-Adversarial Lawyering, 27 Fla. St. L. Rev. 153, 181-82 (1999), Michael L. Moffitt, Will This Case Settle? An Exploration of Mediators' Predictions, 16 Ohio St. J. on Disp. Resol. 39 (2000).
     

159. 159. Among the extensive list of articles that can be found on this subject, see Carrie Menkel-Meadow, Ethics Issues in Arbitration and Related Dispute Resolution Processes: What's Happening and What's Not, 56 U. Miami L. Rev. 949 (2002) and the literature cited therein.
     

160. 160. See Prefatory Note to the UMA, supra note 14, Part 6, Drafting Philosophy.  ("The Drafters also recognized that some general standards are often better applied through those who administer ethical standards or local rules, where an advisory opinion might be sought to guide persons faced with immediate uncertainty.")
     

161. 161. See Draft Guide at 16 (para. 49); A/CN.9/506, supra note 50, at 20 (para. 69).
     

162. 162. See supra note 117 and accompanying text (including the next paragraph).
     

163. 163. See, e.g., Article 5(3) ICC ADR Rules, supra note 25.
     

164. 164. Based on the language of Article 7(2) UCR.
     

165. 165. The alternative language was suggested because "fairness and justice" connoted the role of a decision maker (such as a judge or arbitrator) rather than the role of a conciliator.  A/CN.9/506, supra note 50, at 20 (para. 71).  At first, the prevailing view in the Working Group was that these "guiding principles" should be retained in the body of the Model Law in order to provide guidance to "less experienced conciliators".  Ironically, it was decided later that the "educative function, as well as the abstract and relative nature of the standard of conduct expressed in paragraph (3), might be better expressed through the deletion of both variants."  Id. at 20-21 (paras. 70 and 72).
     

166. 166. Draft Guide at 16 (para. 51).
     

167. 167. Ibid.
     

168. 168. Ibid.
     

169. 169. See supra note 141 - 143 and accompanying text.
     

170. 170. See supra note 1.
     

171. 171. See, e.g., Art. 7(1) CAMCA Mediation Rules, supra note 33; Rule 22(3)(a) ICSID Conciliation Rules, supra note 31; Article 3(d)(i) CPR Mediation Procedure, supra note 29; Article 5(2) LCIA Mediation Procedure, supra note 27.  The ICC ADR Rules, supra note 25, do not contain an explicit provision to this effect, but Article 5(3) provides that the Neutral shall conduct the procedure in such a manner as he sees fit.
     

172. 172. The Draft Guide notes that some states have included this principle in their national laws.  There is some suggestion that this provision was intended to be (almost) mandatory because the Draft Guide points out that this practice is so common that a conciliator ought to be presumed to be free to hold caucuses.  It states that "[t]he purpose of this provision is to put the issue beyond doubt."  Draft Guide at 17 (para. 54).
     

173. 173. Note, however, that here too abuse by the dominant party could manifest itself.  If this provision was set aside in the pre-dispute agreement and as a result a smaller party were unable to meet privately with the conciliator, this could seriously dampen the smaller party's desire to share confidences with the conciliator that would challenge the dominant party.
     

174. 174. Draft Guide at 17 (para. 55).
     

175. 175. Without implying that this provision should therefore be mandatory.
     

176. 176. Accord, Report of the Working Group on Arbitration on the work of its thirty-second session (Vienna, 20-31 March 2000), April 10, 2000, A/CN.9/468, at 6 (para. 22).
     

177. 177. See supra notes 47 - 50 and accompanying text.
     

178. 178. See, e.g., Article 3(h) CPR Mediation Procedure, supra note 29; Article 5.3 LCIA Mediation Procedure, supra note 27; Articles 11 and 12(c) WIPO Mediation Rules, supra note 32.  But see, e.g., the ICC ADR Rules, supra note 25, and the Rules of the Mediation Institute of the Stockholm Chamber of Commerce, supra note 28, which do not have an internal confidentiality provision such as Article 8 MLICC, and this form of confidentiality can be deduced only indirectly from Articles 11 and 12 CAMCA Mediation Rules.
     

179. 179. 5 U.S.C. §§ 571-83 (2000).
     

180. 180. As noted previously, the UMA does not use an expanded definition of "mediator" to include her staff, but her staff is probably included in the definition of "nonparty participant".  An expanded definition of "mediator" as contained in Cal. Evid. Code § 1115 (b) seems preferable, however, because it is clearer and more complete.
     

181. 181. It should be noted, however, that insofar as the conciliator is concerned, participants' communications provided in confidence are also protected.  5 U.S.C. Section 574(a).
     

182. 182. See supra note 176 and accompanying text.
     

183. 183. Draft Guide at 18 (para. 58).
     

184. 184. Id. at 18-19 (para. 58).
     

185. 185. Id. at 19 (para. 60).
     

186. 186. Ibid.
     

187. 187. See A/CN.9/485, supra note 63, at 36 (para. 146).
     

188. 188. See A/CN.9/506, supra note 50, at 23-24 (paras. 83-86).
     

189. 189. Article 20, Draft UNCITRAL Conciliation Rules, A/CN.9/166, supra note 44, 10 Yearbook at 91 and 99 (para. 63).
     

190. 190. See supra note 176 and accompanying text.
     

191. 191. Neither the MLICC nor statutes such as the CA Mediation Statute define "confidentiality."  A definition under federal law can be found in the Administrative Dispute Resolution act, 5 U.S.C. §§ 571-83 (2000): in 5 U.S.C. § 571 (7) "confidential" is defined to mean that "the information is provided (a) with the expressed intent of the source that it not be disclosed; or (b) under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed." 
     

192. 192. Kirtley, supra note 82, at 16 ("the overwhelming weight of scholarly authority supports the proposition that confidentiality is essential to the functioning of mediation.").
     

193. 193. Ellen Deason, supra note 39, 85 Marq. L. Rev. at 80 ("Strong confidentiality protection is, in many instances, crucial to establishing working relationships within the mediation framework between the adversary parties and with the mediator.")
     

194. 194. Ibid.
     

195. 195. Id. at 82.
     

196. 196. Ibid.
     

197. 197. Among authors questioning the importance of confidentiality in mediation, see J. Brad Reich, A Call for Intellectual Honesty: A Response to the Uniform Mediation Act's Privilege Against Disclosure, 2001 J. Disp. Res. 197.
     

198. 198. Kirtley, supra note 82, at 9-14.
     

199. 199. Id. at 10.
     

200. 200. Such agreements must be deemed to include the implied agreements to confidentiality that parties enter into when they agree to submit themselves to a certain set of conciliation rules, such as the UCR.
     

201. 201. Both under federal and state law.
     

202. 202. Ibid., quoting John Henry Wigmore, Evidence in Trials at Common Law, Section 2192, at 70 (1961)   (internal quotation marks omitted)
     

203. 203. Ibid., citing Wigmore, supra note 202, at Section 2194b.
     

204. 204. Federal Rule of Evidence 408 states as follows:
     

205. "Compromise and Offers to Compromise.  Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  The rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." 
     

205. 205. As Professor Kirtley noted (supra note 82, at 12, n. 71), a vast majority of the states have adopted an evidence rule analogous to Rule 408.  Those states are listed in Weinstein's Federal Evidence, Section 408(8) (2003).
     

206. 206. See generally, Weinstein's Federal Evidence, Section 408(1). See also Federal Evidence Rule 26(b)(1) which states in effect that it is not grounds for objection to a discovery request that the information sought is inadmissible at trial so long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
     

207. 207. See Major John E. Hartsell, The Sounds of Silence: Promoting Alternative Dispute Resolution in Air Force Procurement By Putting Confidence into Confidentiality, 53 A.F.L. Rev. 183 (2002). 
     

208. 208. Cf. Charles Pou, Jr., No fear: Confidentiality Day-to-Day in federal Dispute Resolution, in federal Administrative Dispute Resolution Deskbook 76 (2001), cited in Hartsell, supra note 207, at 184, n. 9.  As Professor Kirtley noted, supra note 82, at 31, n. 212, the federal legislator recognized this problem (in spite of the many other exceptions set forth in Section 574) by providing in Section 574(a)(4) and (b)(5) ADRA that a court may order disclosure by the conciliator or party only if the need for certain permitted disclosures outweighs "the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential.” [emphasis added]
     

209. 209. According to the Prefatory Note to the UMA, supra note 14, Para. 1, ‘Promoting Candor’, approximately half of the States have enacted privilege statutes that apply generally to mediations in the State, while the other half include privileges within the provisions of statutes establishing mediation programs for specific substantive legal issues, such as employment or human rights.  (Citing Sarah R. Cole, Craig A. McEwen & Nancy H. Rogers, Mediation: Law, Policy, Practice, apps. A and B (2001 2d ed. and 2001 Supp.)..
     

210. 210. See Kirtley, supra note 82, at 19.
     

211. 211. Ibid.
     

212. 212. See, e.g., Section 10.5 LCIA Mediation Procedure, supra note 27.
     

213. 213. Kirtley, supra note 82, at 31, n. 211, citing Sonenstahl v. L.E.L.S., Inc., 372 N.W.2d 1, 6 (Minn. Ct. App. 1985).
     

214. 214. See supra note 25.
     

215. 215. See A/CN.9/506, supra note 50, at 29 (para. 102).
     

216. 216. Section 5(a) UMA provides "A privilege under Section 4 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and (1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and (2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant." [emphasis added]
     

217. 217. See A/CN.9/487, supra note 65, at 38 (para. 140).  The waiver of the duty of confidentiality of the conciliator was not then considered as it was the subject of a different Article (draft Article 13, Id. at 39 (paras. 142-145).
     

218. 218. The Draft Guide still relates to the draft MLICC that immediately preceded the final draft.  In relevant part, this prior draft read: "a party that participated in the conciliation proceedings or a third person, including a conciliator."  Draft Guide at 19.
     

219. 219. Draft Guide at 20 (para. 61).
     

220. 220. Although the Draft Guide does state: "Thus, Article [10] is designed to encourage frank and candid discussions in conciliation by prohibiting the use of information listed in paragraph (1) in any later proceedings."  [emphasis added]  Draft Guide at 20 (para. 61). 
     

221. 221. Id. at 21 (para. 67).
     

222. 222. See A/CN.9/WG.II/WP.115, supra note 84, at 18 (para. 31).
     

223. 223. Draft Guide at 21 (para. 65).
     

224. 224. In the Working Group's May/June 2001 session.  See A/CN.9/487, supra note 65, at 38 (para.141).
     

225. 225. Id. (para. 139).  Emphasis added.
     

226. 226. Id. at 38-39 (para. 141).
     

227. 227. There is currently no record available that states the reasons for the inclusion of subparagraphs (a) and (f).  They were added during the November 2001 session of the Working Group.  All the Report, A/CN.9/506, supra note 50, at 29 (para. 103), discloses is that the suggestion for inclusion of these two subparagraphs "was met with general approval".
     

228. 228. See Article 27, 10 Yearbook, supra note 44, at 92.
     

229. 229. 10 Yearbook, supra note 44, at 100 (paras. 73-77).  ("for example, the information contained in an expert opinion or a report about an examination of goods which no longer exist at the time of the other proceedings.")  Cf. Rojas, supra note 40.
     

230. 230. Id., para. 76.
     

231. 231. Ibid. [emphasis added]
     

232. 232. See, e.g., Wash. Rev. Code § 5.60.070 (1993).
     

233. 233. See, e.g., Cal. Evid. Code §  1119.
     

234. 234. See supra notes 209 - 211 and accompanying text.
     

235. 235. How important the potential examination of a witness on the subject of non-verbal communications and conduct can be is convincingly illustrated by a hypothetical cross-examination in Hartsell, supra note 207, 53 A.F.L. Rev. at 204-205.
     

236. 236. See infra text accompanying note 256.
     

237. 237. Draft Guide at 21 (para. 66).
     

238. 238. See A/CN.9/506, supra note 50, at 30 (para. 105).  The draft before the Working Group at that time included two variants and read: "Paragraph (1) of this article applies irrespective of [the form of the information or evidence referred to therein] [whether the information or evidence referred to therein is in oral or written form]."
     

239. 239. Draft Guide at 21 (para. 67).
     

240. 240. Ibid.  Emphasis added.
     

241. 241. See supra notes 193 - 196 and accompanying text.
     

242. 242. See supra note 40.
     

243. 243. Ibid.
     

244. 244. The Commentary on the 1979 draft UNCITRAL Conciliation Rules foresaw just such a fact pattern when considering circumstances in which the confidentiality of conciliation in subsequent court proceedings could not be absolute.  In describing a confidentiality rule it perceived to be too broad, the Commentary stated: "It could include, for example, […] a report about an examination of goods which no longer exist at the time of the other proceedings."  10 Yearbook, supra note 44, at 100 (para. 75).
     

245. 245. Cal. Evid. Code § 1119 (b) provides: "No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."  The written analyses and the photographs in question would fall under the broad definition of "writing" in Cal. Evid. Code § 250.
     

246. 246. Cal. Evid. Code § 1120 (a).
     

247. 247. See infra note 256 and accompanying text.
     

248. 248. 102 Cal.App.4th 1062, 1078.  It bears repeating that this case is being reviewed and that therefore this may not be the definitive outcome of the case.
     

249. 249. See supra note 240 and accompanying text.
     

250. 250. Draft Guide at 21 (para. 67).
     

251. 251. Section 6(a) UMA reads as follows:
     

252. SECTION 6. EXCEPTIONS TO PRIVILEGE.
     

253. (a) There is no privilege under Section 4 for a mediation communication that is:
     

254. (1) in an agreement evidenced by a record signed by all parties to the agreement;
     

255. (2) available to the public under [insert statutory reference to open records act] or made during a session of a mediation which is open, or is required by law to be open, to the public;
     

256. (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
     

257. (4) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
     

258. (5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;
     

259. (6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
     

260. (7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the
     

261. [Alternative A: [State to insert, for example, child or adult protection] case is referred by a court to mediation and a public agency participates.]
     

262. [Alternative B: public agency participates in the [State to insert, for example, child or adult protection] mediation]."
     

252. 252. Draft Guide at 2 (para. 1 in fine).
     

253. 253. Supra notes 221 - 222 and accompanying text.
     

254. 254. See A/CN.9/WG.II/WP.115, supra note 84, at 18 (para. 31).
     

255. 255. Draft Guide at 21 (para. 67).
     

256. 256. See Cal. Evid. Code § 1120, Law Revision Commission Comments, Comment 1.
     

257. 257. Draft Guide at 21 (para. 67).
     

258. 258. Ibid.
     

259. 259. Article 4 MLICC.  See supra note 118 and accompanying text.
     

260. 260. See supra notes 136 - 140 and accompanying text.
     

261. 261. Supra, note 119 and accompanying text.
     

262. 262. Cal. Evid. Code §  1125.
     

263. 263. See Kirtley, supra note 82, at 24.
     

264. 264. Draft Guide at 23 (para. 73).
     

265. 265. Id. (para. 70).
     

266. 266. Id. (para. 71).
     

267. 267. Ibid.
     

268. 268. As is provided for in Article 30(2) Model Law on Arbitration, supra note 60.
     

269. 269. A result of this, which some authors may consider a "downside", may be that a party can challenge the validity of the settlement not based on the law of contracts, but only on the grounds available to set aside any arbitral award.  But this may already be the case in most jurisdictions when the parties successfully convert the settlement agreement into an arbitral award on agreed terms.
     

270. 270. See 10 Yearbook, supra note 44, at 98-99 (para. 62).
     

271. 271. The relevant version of Article 13, A/CN.9/506, supra note 50, at 34 (para. 124), read as follows:
     

272. (1)During conciliation proceedings the parties shall not initiate any arbitral or judicial proceedings in respect of a dispute that is the subject of the conciliation proceedings, and a court or arbitral tribunal shall give effect to this obligation.  Either party may nevertheless initiate arbitral or judicial proceedings where, in its opinion, such proceedings are necessary for preserving its rights.  Initiation of such proceedings is not of itself regarded as termination of the conciliation proceedings.
     

273. (2)[To the extent that the parties have expressly undertaken not to initiate [during a certain time or until an event has occurred] arbitral or judicial proceedings with respect to a present or future dispute, such an undertaking shall be given effect by the court or the arbitral tribunal [until the terms of the agreement have been complied with].
     

274. [(3)The provisions of paragraphs (1) and (2) of this article do not prevent a party from approaching an appointing authority requesting it to appoint an arbitrator.]”
     

272. 272.  See A/CN.9/506, supra note 50, at 34 (para. 125).
     

273. 273. At the Working Group’s November 2001 session a concern was expressed that “in its opinion” might not be appropriate in a model law and that a more objective statement should be found.  Apparently, this was not pursued further.  See A/CN.9/506, supra note 50, at 34 (para. 126).
     

274. 274. See supra, notes 136 - 137 and accompanying text.
     

275. 275. Supra note 271.
     

276. 276. Cf. A/CN.9/487, supra note 65, at 40 (para. 147)
     

277. 277. Draft Guide 26 (para. 81).  The Secretariat added a note to this paragraph stating that it expected paragraphs 77 to 81 to "require a degree of redrafting as a result of the discussion at the 35th session of the Commission."  Contrary to the Secretariat's expectations, the text of Article 14 remained substantially unchanged.
     

278. 278. Supra notes 268 - 269 and accompanying text.
     

279. 279. See Draft Guide to Enactment of the UNCITRAL [Model Law on International Commercial Conciliation], October 12, 2001, A/CN.9/WG.II/WP.116, at 21, available at www.uncitral.org (last visited on April 15, 2003).
     

280. 280. See Article 30(2) Model Law on Arbitration, infra note 281.
     

281. 281. Article 30 Model Law on Arbitration reads as follows:
     

282. Article 30. Settlement
     

283. (1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
     

284. (2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award.  Such an award has the same status and effect as any other award on the merits of the case.
     

282. 282. See A/CN.9/506, supra note 50, at 37 (para. 136).
     

283. 283. See supra notes 44 - 46 and accompanying text.