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Getting The Deal Through


Published: September 2019

United States

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  • 1.

    Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?

  • 2.

    Mediation models
    What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?

  • 3.

    Domestic mediation law
    Are there any domestic laws specifically governing mediation and its practice?

  • 4.

    Singapore Convention
    Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?

  • 5.

    Incentives to mediate
    To what extent, and how, is mediation encouraged in your jurisdiction?

  • 6.

    Sanctions for failure to mediate
    Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?

  • 7.

    Prevalence of mediation
    How common is commercial mediation compared with litigation?

  • 8.

    Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

  • 9.

    What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

  • 10.

    Mediation agreements
    Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

  • 11.

    How are mediators appointed?

  • 12.

    Conflicts of interest
    Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

  • 13.

    Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

  • 14.

    Counsel and witnesses
    Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

  • 15.

    Procedural rules
    Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?

  • 16.

    Tolling effect on limitation periods
    Does commencement of mediation interrupt the limitation period for a court or arbitration claim?

  • 17.

    Enforceability of mediation clauses
    Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?

  • 18.

    Confidentiality of proceedings
    Are mediation proceedings strictly private and confidential?

  • 19.

    Success rate
    What is the likelihood of a commercial mediation being successful?

  • 20.

    Must a settlement agreement be in writing to be enforceable? Are there other formalities?

  • 21.

    Challenging settlements
    In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?

  • 22.

    Enforceability of settlements
    Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?

  • 23.

    Duty to stay proceedings
    Must courts stay their proceedings in favour of mediation?

  • 24.

    Other distinctive features
    Are there any distinctive features of commercial mediation in your jurisdiction not covered above?

  • Updates and trends

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Polsinelli is an Am Law 100 firm with more than 750 attorneys in 18 offices, serving corporations, institutions, entrepreneurs and individuals nationally. Ranked in the top five per cent of law firms for client service and top five per cent of firms for innovating new and valuable services*, the firm has risen more than 100 spots in Am Law’s annual firm ranking over the past six years.

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IL 60606
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