INTERNATIONAL SEMINAR WORKSHOP PROGRAM€¦ · Maria Arpa, MSc, CEO, Centre for Peaceful Resolution...

INTERNATIONAL SEMINAR WORKSHOP PROGRAM June 11th and 12th 2018 at the University of Fiji JDP School of Law Samabula Campus

SEA CHANGE IN CIVIL LITIGATION WORLDWIDE AND THE INCREASING IMPORTANCE OF ADR IN LITIGATION ACROSS BORDERS & LITIGATING IN HIGH VALUE DISPUTES – ESSENTIAL SKILLS FOR PRACTITIONERS AND CROSS-CULTURAL ASPECTS OF CROSS-BORDER LITIGATION

PROGRAM EXECUTIVES

Professor Shaista Shameem, PhD, FRSA, Dean of the JDP School of Law at the University of Fiji - Event Co-Host, Co ModeratorMichael Booth QC, Bencher of the Honourable Society of Lincoln’s Inn, Chair, Board of the Panel at Vantage10 Lead Presenter & Co ModeratorAnne Regier, FRSA, MCIoJ, LLB, Director, Vantage10 Leading in Dispute Resolution, Event Co-Host

PROSPECTIVE PARTICIPANTS

Participants are expected to attend from Fiji and its Pacific neighbours including Australia and New Zealand and the Asia Pacific region.

PROGRAM

DAY 1 – June 11 th 2018

8.30 - 9.30 REGISTRATION9.30 - 9.40 EVENT WELCOME FROM CO-HOSTS - Professor Shaista Shameem, FRSA, Dean of JDP Law School, University of Fiji (Co-Moderator);

Anne Regier FRSA, Director, Vantage109.40 – 10.00 WELCOME FROM THE UNIVERSITY OF FIJI – Pro Chancellor, Mr. Anil Tikaram, University of Fiji10.00 – 10.20 KEYNOTE SPEECH – Honourable Mr Justice of Appeal Daniel Goundar of the Fijian Judiciary, on behalf of the Honourable Chief Justice

of Fiji, Anthony Gates

10.20 – 11.00 Tea/ Coffee Break

11.00 – 11.45 SEMINAR WORKSHOP CONTENT OVERVIEW - Michael Booth QC & Bencher of the Honourable Society of Lincoln’s Inn, Chair of the Panel of Experts at Vantage10 & Lead Presenter (Co-Moderator)



11.45 – 12.30 TOPIC: MANDATORY MEDIATION AND THE ROLE OF MEDIATION IN THE CRIMINAL AND CIVIL PROCESS IN THE NETHERLANDS AND EUROPE. His Honour Nico Tuijn LLM, Deputy Chief Justice (Appeal) of the Netherlands

12.30 – 13.30 TOPIC: MANDATORY MEDIATION IN CIVIL PROCEEDINGS IN CANADA. Harold Arkin, BA, LLB LLM, Chartered Mediator & Member (np) of the Bars of Ontario & Manitoba

13.30 – 14.30 TOPIC: DESIGN OF THE LAWS OF A SMALL JURISDICTION WITH MEDIATION AS A KEY FACTOR IN THE CIVIL LITIGATION PROCESS/ MEDIATION IN THE CIVIL LITIGATION PROCESS IN MACAU– A PROSPECTIVE MULTILAYERED ALTERNATIVE DISPUTE RESOLUTION (ADR) MODEL IN THE SCOPE OF GAMING LAW IN MACAU. His Honour Hugo Luz dos Santos, LLB, Magistrate (Portugal)

14.30 – 15.30 Lunch & Networking

15.30 - 16.45 TOPIC AREA: OVERVIEW OF SEA CHANGE IN CIVIL LITIGATION WORLDWIDE AND THE INCREASING IMPORTANCE OF ADR IN LITIGATION ACROSS BORDERS; LITIGATING IN HIGH VALUE LITIGATIONS – ESSENTIAL SKILLS FOR PRACTITIONERS; CROSS-CULTURAL ASPECTS OF CROSS-BORDER LITIGATION. Michael Booth QC & Bencher of the Honourable Society of Lincoln’s Inn

16.45 – 17.45 TOPIC: CROSS-BORDER, HIGH VALUE LITIGATION – FOCUS ON THE FINANCIAL SECTOR. His Honour James Corbett QC, Deputy High Court Judge & Bencher of the Honourable Society of the Inner Temple

17.45 – 18.00 (start GMT 6.45 AM) (by videolink) TOPIC: MEDIATION ADVOCACY. Jane Gunn, FCIARb, FPSA, FRSA, CEDR accredited, CMC registered and IMI Certified International Mediator, Chair of the Board of Management at the Chartered Institute of Arbitrators

18.00 - 18.30 (start GMT+1= 8.00 AM) (by videolink) TOPIC: KEY TRENDS IN MEDIATION PRACTICE AND LITIGATION IN EUROPE AND RELEVANCE TO FIJI. His Honour Justice Avi Schneebalg LLB, Judge (Belgium)

18.30 Program End & Networking.

DAY 2 – June 12 th 2018

9.00 – 9.30 TOPIC: REVIEW OF THE ROLE OF MEDIATION IN DISPUTE RESOLUTION IN FIJI. Honourable Mr Justice Rajaratnam Suresh Chandra RJA of the Supreme Court of Fiji, Convenor of Mediation Services in Fiji

9.30 – 10.30 (start 22.30 GMT) (by videolink) TOPIC: VIOLENT CONFLICT TO MEDIATION - THE JOURNEY OF THE DIALOGUE ROAD MAPMaria Arpa, MSc, CEO, Centre for Peaceful Resolution (UK)

10.30 – 11.30 Coffee Break

11.30 – 12.30 TOPIC: CROSS-BORDER LAW PRACTICE FROM AND INTERNATIONAL AMERICAN LAWYER’S PERSPECTIVEFOCUSING ON ADMIRALTY LAW. Michael Stern Esq., Partner in New York Law Firm Rubin, Fiorella & Friedman LLP

12.30 – 13.00 – 14.00 TOPIC: FUNDING OF CROSS-BORDER LITIGATION. Anne Regier, LLB, MCIoJ, FRSA, Director, Vantage10

13.00 – 14.00 Lunch & Networking

14.00 – 15.00 TOPIC: PROGRAM SUMMARY, QUESTIONS & ANSWERS Moderated by Michael Booth QC

15.00 – 15.30 TOPIC: OBSERVATIONS & CLOSING ADDRESSMs Laurel Vaurasi, President of the Fiji Law Society

15.30 – 16.00 CLOSING ADDRESS & THANKS ON BEHALF OF VANTAGE10 AND THE UNIVERSITY OF FIJIProfessor Shaista Shameem FRSA, Michael Booth QC & Anne Regier FRSA

16.00 Program End & Networking.

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PRESENTERS & THEIR TOPIC SUMMARIES

TOPIC: WELCOME ADDRESS & KEYNOTE SPEAKERMR ANIL TIKARAM, LLB, Pro Vice Chancellor, University of Fiji. Mr. Tikaram has been Pro-Chancellor of The University of Fiji (UniFiji) since 2014. He is also Chair of the University Council. Mr. Tikaram is a Director and Trustee of Unit Trust of Fiji since 2009. He is of the Tikaram family of Suva and is the son of Late Sir Moti Tikaram. Mr. Tikaram is a current member of Fiji Law Society, Past President of Fiji Judo Association, Fiji Club, and Oceania Judo Union. He is a Barrister & Solicitor at the Bars of New Zealand and Fiji.



TOPIC: KEYNOTE SPEECHHONOURABLE MR JUSTICE OF APPEAL DANIEL GOUNDAR of the Fiji Judiciary (representing the Chief Justice of Fiji, Hon. Anthony Gates)

TOPIC: REVIEW OF THE ROLE OF MEDIATION IN DISPUTE RESOLUTION IN FIJI HONOURABLE MR JUSTICE RAJARATNAM SURESH CHANDRA of the Supreme Court of Fiji, Convenor of Mediation Services in Fiji.

TOPIC: OBSERVATIONS & CLOSING ADDRESSMs LAUREL VAURASI, LLB, President of the Fiji Law SocietyMs Vaurasi is President of the Fiji Law Society which is the regulatory body for legal practitioners in Fiji. She is admitted to the Bars of Fiji and the Supreme Court of Queensland and is the owner of Shekinah Law, a full service law firm in Fiji.

EVENT HOST & CO-MODERATORPROFESSOR SHAISTA SHAMEEM, FRSA, PhD, LLB, SJD (cand.) (Waikato), LLM (Auck), LLB, MA (Cantab.), BA (USP) is Dean of the JDP School of Law at the University of Fiji. Professor Shameem is admitted to the Bars of Fiji and New Zealand and is a Member of the Board of the Panel at Vantage10 Leading in Dispute Resolution. Professor Shameem's appointments have included senior consulting roles in UN bodies in the fields of justice and human rights. She is a former Ombudsman and Chairperson of the Fiji Human Rights Commission. In March 2018, Professor Shameem was awarded Fellowship of the Royal Society for the Encouragement of Arts, Manufactures and Commerce for her outstanding contributions in the fields of education and law.

1TOPIC: SEA CHANGE IN CIVIL LITIGATION WORLDWIDE AND THE INCREASING IMPORTANCE OF ADR IN LITIGATION ACROSS BORDERS & LITIGATING IN HIGH VALUE DISPUTES – ESSENTIAL SKILLS FOR PRACTITIONERS AND CROSS-CULTURAL ASPECTS OF CROSS-BORDER LITIGATIONMICHAEL BOOTH QC, Lead Presenter (all program topics) & Chair of the Panel at Vantage10. MA (Cantab), Bencher of the Honourable Society of Lincoln’s Inn. Michael is a former President of the Cambridge Union Society, Michaelmas 1979 and Speaker of the year in 2018 at the Civil Fraud Lawyers Association. Michael is one of the UK’s most eminent silks with strong recognition for his redoubtable skills as a litigator. His practice includes commercial and chancery topics such as company and insolvency,

partnership, property, civil fraud, breach of trust and fiduciary duty, banking, professional negligence, general commercial litigation especially in scientific or technical contexts and breach of confidence/copyright. He is skilled in the areas of Internet law and has lectured for the Chancery Bar Association on money laundering (session presided upon by Lord Justice Lloyd) and has also presented training talks for solicitors on this topic. Michael has undertaken numerous trials, and has also appeared in various appellate cases both in the Court of Appeal and before the Law Lords. Michael’s practice has taken him to the Caribbean, Northern Ireland, the Isle of Man, the Channel Islands and Belgium, as well as all parts of England.

TOPIC: MANDATORY MEDIATION AND THE ROLE OF MEDIATION IN THE CRIMINAL AND CIVIL PROCESS IN THE NETHERLANDS AND EUROPEHIS HONOUR JUSTICE NICO TUIJN. Deputy Chief Justice (Appeals) of the Netherlands. LLM (Leiden) and Patron Member of the Board of the Panel at Vantage10. Nico has been a judge since 1989 deciding cases in the fields of commercial, criminal and family law. He is a long-standing advocate for mediation in the civil and criminal justice process. He has held consulting appointments as an expert with the following organisations: International Monetary Fund Indonesia; European Union in Turkey; Council of Europe in

Ukraine; Council of Europe in Turkey; Council of Europe in Armenia; European Commission in Romania and Bulgaria. He has been a guest lecturer in Ethiopia, Europe, Indonesia, Hong Kong, Malaysia and Turkey on various judicial topics and is a member of the Meijers Committee, an independent group of experts researching and advising on European criminal, migration, refugee, privacy, non-discrimination and constitutional law. The Committee promotes transparent and democratic decision-making, respect for human rights and access to a judge in the European cooperation in the field of justice, migration and security. Nico is also an advisor for administrative law conflicts, President of a charity foundation (Stichting Anak Terlantar) for children in Indonesia and Ambassador of The Netherlands for the European Charity Fund.

1 Handout to be available on the day.



Presentation

Learning ObjectivesAim of the presentation is to enhance the knowledge of the attendees of - mediation phenomena abroad, - how trending mediation is changing legal landscape generally - mediation and the future of legal services.The career of the judge in the Netherlands – personal career– current activities in the Court of Appeal and on an international levelMy interest in mediation, both in civil and in criminal cases: – problems of the judiciary seen from a societal and economical perspective– unsatisfactory work of the judge: are all the efforts of added value?– civil litigation practice in the Netherlands: not always a solution for the parties time consuming, expensive– reality in terms of justice is often not “all black or all white”; tensions between parties do not always disappear because of a judicial decision– recent worries: will the Dutch civil judges be relevant for society?– a growing number of extra-judicial phenomenaPopular Concerns about mediation– observations abroad:– resistance of the legal establishment – wrong information about mediation– no support for experimentsConcerns balanced by– creativity of the judiciary can lead to successes– new legislation on mediation often necessary– contacts with officers of supranational institutions: – facilities for experiments– possible pressure towards mediation from institutions like the European UnionThe practice of mediation in The Netherlands – mediation is possible in almost all areas of the law and in the majority of cases– cases are not the real impediment for mediation, the persons in conflict are– examples of matching of parties for mediation – Sample casesHow European societies and legal communities see mediationHow citizens and officials get better informed about possibilities and advantages of mediationReasons why a development towards a (more) mandatory mediation including experiments is desirable– an example of mandatory mediation in South America and the attitude of lawyers at the start and after some yearsWhy judges should adapt their attitude and personal capacities, in the light of a more prominent role for mediationWhy lawyers must get ready to play a role in the new mediation landscapeCriminal Mediation– when to mediate in criminal cases, when not– questions to the suspect and to the victim of a crime – disadvantages of mediation in criminal cases– an intensive process for the parties involved, often confrontingAdvantages of more mediation in the criminal process– more interaction between parties involved, more time for a dialogue; – victims feel safer after a mediation;; – suspects more relieved; a chance that the penalty will be less heavy; – a better understanding of what has happened; – not forgetting, but forgiving; – lower costs of the criminal justice system - example of a successful experiment in Turkey; tendencies in the Netherlands– more than 80 % of mediations in criminal cases have been successful.What will the near future of mediation be? Who has to become (more) active?Questions & Answers.



TOPIC: CROSS-BORDER, HIGH VALUE LITIGATION – FOCUS ON THE FINANCIAL SECTORHIS HONOUR JAMES CORBETT QC, Deputy High Court Judge & Bencher of the Honourable Society of the Inner Temple.James is an English barrister, Queen’s Counsel and Deputy High Court Judge of England and Wales. He is an authority on cross-border litigation in English and Commonwealth courts, with an emphasis on disputes in the financial services and technology industries and those related to insolvency. He serves as lead advocate in international disputes involving banking and securities matters. These often involve claims of £100 million+ by non-English banks, brokerage firms and other institutions against major international banks. He is admitted permanently or pro hac vice to the bars of multiple jurisdictions worldwide and has deep

experience in international arbitration and mediation.

Presentation

Learning Outcomes: the rapid growth of large worldwide financial transactions has resulted in a veritable barrage of laws and regulations enforced and regulated both by national and supra-national organisations. This event has presented great opportunities for litigators and increased risk and vulnerability for large international financial institutions. In particular, the growth of EU-wide regulations applicable to financial institutions has led to instances where more and more claims are being brought for breach of regulatory duties against such organisations. The presentation will discuss the above trend; identify and present opportunities for defence and prosecuting counsels in this field; discuss and present the relevant skills and strategies that may be employed by counsels when representing clients against such large international financial institutions in cross-border litigation settings and when defending the organisations.Questions & Answers.

Presentation

This topic will provide an executive overview of the UK’s changing constitutional settlement, recent Westminster and devolved legislation and recent decisions of the UK Supreme Court of major constitutional significance (including the recent Miller decision and the likely challenge in the UKSC to the Scottish Parliament’s legislation on devolved functions post Brexit. The presentation will move on from the constitutional backdrop and structural rearrangements post Brexit to a consideration of the changing UK legal services market and the reasons why Britain will continue to grow and develop as the touchstone for the global legal services industry.Questions & Answers.

TOPIC: FUNDING LITIGATION COSTS AND NEGATIVING ADVERSE COSTS RISKS VIA LITIGATION FUNDING IN CROSS-BORDER LITIGATION EVENTSANNE REGIER, LLB, FRSA, LLB (UL), LLM (cand. Wolvs), FRSA, MCIoJ, Director at Vantage10. Anne worked as a lawyer for a German Law Firm in Riga, Latvia before joining IBM and BMC Software in Ireland in corporate business development roles spanning: Austria, Switzerland, Germany and the Russian Federation. She was admitted to the Chartered Institute of Journalists in 2011 as a Full Member and recognised by the Association of Chief Police Officers of the UK as a journalist. She was awarded Fellowship of the Royal Society of Arts in 2016 for her contributions to UK business. Anne is fluent in German, Russian, Latvian and

English and has conversational fluency in Spanish, French and most Slavic languages. She s a Member of the Board of the Panel at Vantage10.

Presentation

1. What is litigation funding and why should lawyers know about it?Litigation funding is the provision by a third party of finance to a party to litigation or arbitration, which is used to pay for the legal costs of the dispute, in exchange for the funder taking a share of the proceeds in the event of a successful outcome. Having LTF in place sometimes in itself promotes early settlement. This is because, first, the defendant appreciates that the claimant has the means to pursue the claim properly. Secondly, the defendant can see that an independent party (that is, the funder and their advisors) have looked at the case dispassionately and saw good prospects of success. 2. In which jurisdictions is litigation funding allowed?

Although not many people, including lawyers, know much about it, litigation funding contracts have been made enforceable by legislators and/or courts in jurisdictions such as the UK, Singapore, Hong Kong Australia, New Zealand, Germany, Canada, US.

There are very few regulatory bodies that oversee litigation funding providers. In the UK, such is the Association of Litigation Funders (ALF). The members of ALF have adopted its Code of Conduct and undertake to comply at all times with it. The code has been effectively approved by Lord Justice Jackson in his Review of Civil Litigation Costs Review document (2009/2010).

Under the Code, litigation funders are required to give assurances to claimants that, among other things, the litigation funder will not try to take the litigation over, has the money to pay for the costs of the litigation and will not terminate funding unless there is a material adverse development.

The market is likely to stay as unregulated as it is, with Justice Minister Lord Keen of Ellie endorsing that because the market is still young. In the US, such an institution is ALFA – American Legal Finance Association with its Code of Conduct.



In Australia, for instance, because contingency fees are not allowed in any state, anyone other than a lawyer can fund a class action without being required to be licensed, or satisfy capital adequacy requirements to meet adverse costs orders or have sufficient assets to meet legal costs of prosecuting the claim.

3. What cases can be considered for litigation funding? Personal injury claims can be considered in the UK as well as abroad. Commercial cases make the majority of cases where LTF is used, as opposed to small business disputes as funders tend to be more interested

in cases of larger value, and also IP cases if the stream of royalties expected is especially great. Construction cases are considered, too. Cases where adjudication is involved are very attractive to funders if there are statutory timelines in place for the adjudication to happen quicker (e,g, in Local Democracy, Economic Development and Construction Act 2009).

Defamation cases can be considered, although not preferred because of their legal complexity and professional negligence and group actions are also considered because of the typically greater outcome value. This is reflected in the Arkin case.

Individual cases like personal injury, even though they do not constitute the bulk of cases litigation funders take on, can be considered as well, if the award expected is substantial. The funders’ representatives I have spoken with, for example, have a lot clinical negligence cases.

4. Requirements for litigation funding? Recoverability, strength of the case and ratio (ratio min. 4:1; 4 – award size, 1 – money spent on the funding and litigation process) are the

three major factors to determine if the case is suitable for litigation funding. So if I expect, let’s say, £16M in claim value I could, in theory, get £4M in litigation funding to cover all expenses to pursue the claim. Funding size can be as little as GBP120K and as much as GBP200M+ in which case it is likely to be syndicated. Strength of the case needs to be little more than 50% chance of success and a good litigation strategy being presented is of major

importance. Cost of funding - around 30% of the damages as a rule, the rest depends on negotiations with the funder. Length of funds deployed - 1 year to 10+, for a longer term bigger borrowing (£10M +) is preferred. ATE (adverse costs insurance) needs to be in place as well which the litigant typically provisions themselves. Litigation funding as well as ATE is NO WIN NO FEE. Money already spent on the litigation process funders have awarded litigation funding for. Withdrawal from case when funding has already been deployed is possible - if circumstances come up which make the case non-viable which

were not easily foreseeable, it is possible for the litigant to negotiate with the funder to pay nothing. That works if it is in the agreement signed with the funder. If something comes out of woodwork that makes case non viable, the funder would accept that advice – depending on the case, funder can lose money (the case is treated as if lost).

ATE is paid upfront by litigant as a lump sum, or from winnings – flexible options can be negotiated with the funder. Most often deferred in personal injury cases – if deferred cost is 35 -40% of the amount of cover required, upfront cost is 30%.

Limits on ATE cover - there is no minimum. Maximum - what each insurer can afford to cover. In any case, funding can be syndicated and to have a good funding broker for that is a plus.

ATE can be counted as security for costs. As per the latest UK Premier Motorauctions Leeds Ltd case. However, this decision has been allowed to appeal, so now it is a grey area. To counter that, ATE cover first + extra indemnity which would cover any liability for security of costs 100% can be arranged. Deed of indemnity is arranged – takes out some of the riskier conditions out of ATE policy, premium cost – 15% of the amount required. Paid upfront or deferred.

If the case is lost, litigant would still be liable to litigation funder's fees only in one case - if the litigant breaches a condition of exclusivity (if it was in the funding contract) and goes for another funder. Then penalties would likely apply as well, as per the contract. Also, possibly if the litigant (substantially) breaches the funding contract - e.g., doesn't follow his lawyers' established litigation strategy and ruin the case.

Where the money goes and who has control of it. The funding is deposited in litigant's lawyers' client account. It is not monitored per se, but usually it is done in tranches, where litigant or his lawyers on his behalf report to the funder what the money was spent on and how the next tranche is going to be used on, as per the agreed litigation strategy. Too much supervision by funders could amount to champerty (making a business of ‘chasing’ weak cases to put money in so as to benefit from winnings) which is illegal in the UK and most other jurisdictions so funders are very careful not to get too involved.

Does litigation funding apply to mediation or arbitration? Yes, both from the start and lower down the line.Questions & Answers.

TOPIC: MANDATORY MEDIATION IN CIVIL PROCEEDINGS IN CANADAHAROLD ARKIN, BA, LLB LLM, CHARTERED MEDIATOR & MEMBER OF THE BARS OF ONTARIO & MANITOBA. As a mediator, Harold is active and expert in the areas of: Personal Injury, Estates, Employment, and Commercial Matters. As a legal practitioner, he was associated with Rye & Partners in Toronto, and the Winnipeg law firms of Duboff, Edwards, Haight & Schachter; Oliver, Derksen, Arkin; Thompson, Dorfman, Sweatman; and Aikins, MacAulay & Thorvaldson. Harold is a Chartered Mediator (C. Med. 2002) with the ADR Institute of Canada, and an International Mediation Institute (IMI) Certified Mediator

(2009). He is also an IMI Reviewer member. From 2000 to May 2006, he was a member of the Board of Directors, ADR Institute of Ontario (“ADRIO”), and served as its Vice President of Education for a one year period during that time. He also served as ADRIO’s member on the York University Dispute Resolution Advisory Committee (“DRAC”) for a 3 year period. As a practicing lawyer, he received the rating of "bv" by Martindale-Hubbell (Ontario and Manitoba).



He is a non-practicing member of the Manitoba and Ontario Bars. He is a member of the Panel at Vantage10.

Presentation

1) Personal Background Information and brief history of personal experience with mediation through the years during and after law practice (Manitoba and Ontario)2) Commenting on Mediation generally from a practitioner perspective:--The Mediation Agreement-Pre-Mediation Discussions -Setting the Table-Confidentiality-Opening Statements-The Use of Joint and Private Sessions – an analysis-Sensitivity to Issues of Diversity – the need for sensitivity and awareness to cultural differences-Issues that can arise after Mediation-Court challenges.3) Mandatory Mediation in Canada – The Ontario Experience-Ontario Court Rules of Civil Procedure – Rules 24.1 (Civil) and 75.1 (Estate) Time Frames-Acceptance by Litigation Counsel – Ottawa and Toronto, then Essex (Windsor)-Mediation Styles – Facilitative/evaluative/transformative - key to choosing mediators and the importance of flexibility of style to meet the needs of the parties.-Roster of Mediators in the Ontario Mandatory Mediation Program-Who Pays-Confidential v. Without Prejudice (cf. Saskatchewan)4) Mandatory Mediation in Tribunals – the FSCO experience (mandatory mediation of motor vehicle insurance Accident Benefit Claims in Ontario 1990 – 2016 under the Insurance Act (Ontario)).- Some comparison to other Canadian Jurisdictions – Manitoba, Saskatchewan, Alberta, British Columbia - A word about the experience and results of the use of Judicial ADR (JADR) in Manitoba.5) Mediation in Litigation Generally – What types of cases have greater benefit through mediation than others.6) Benefits/Disadvantages of Mediation over Arbitration-Confidentiality and the Ability to talk privately with each side before and during the mediation.-To what extent is informality a benefit – the ability to defuse tension-allow each side to step into the other party’s shoes)-A word about the use of Med – Arb in Dispute ResolutionQuestions & Answers.

(by videolink) TOPIC: KEY TRENDS IN MEDIATION PRACTICE AND LITIGATION IN EUROPE AND RELEVANCE TO FIJIHIS HONOUR JUSTICE AVI SCHNEEBALG, LLB (BU), Judge at the Belgium Ministry of Justice and President of GEMME Belgium which is an association of European judges who promote mediation in the litigation process. Avi is a full-time civil judge (Vrederechter) at the courts of Belgium and is a founder member and president of the Belgium section, of GEMME, http://www.gemme.eu, a leading European learned society of judges and prosecutors who have an interest in mediation/ ADR. Avi joined the Brussels Bar in 1981 as a specialist in international commercial transactions and since then progressed to be one of the leaders in Europe for the training in

and practice of civil and commercial mediation. In addition, he has taught in law and Business Schools, Bar Associations, Chambers of Commerce, etc., in several European countries, the US, Canada and Mexico, and has co-authored a reference book on Mediation Advocacy. He is a member of the Belgian Federal Mediation Commission and assisted in the drafting of the European Code of Conduct for Mediators at the request of the EC’s Directorate General for Justice and Home Affairs. He is an accredited mediator with the main European Mediation centres. Since 2008, he has been a Lecturer at Ghent University Law School. Avi is Patron Member of the Board of the Panel at Vantage10.

Presentation

1. The role of the judiciary in mandatory mediation settings – the European Experience2. Enforcing mandatory, or non-mandatory mediation outcomes – challenges for lawmakers and judges 3. How lawyers can benefit from adapting to mandatory, or early stage mediation settings 4. What happens when mediation fails5. How to sell mediation to your clients.Questions & Answers.



TOPIC: DESIGN OF THE LAWS OF A SMALL JURISDICTION WITH MEDIATION AS A KEY FACTOR IN THE CIVIL LITIGATION PROCESS/ MEDIATION IN THE CIVIL LITIGATION PROCESS IN MACAU– A PROSPECTIVE MULTILAYERED ALTERNATIVE DISPUTE RESOLUTION (ADR) MODEL IN THE SCOPE OF GAMING LAW IN MACAU

HIS HONOUR JUSTICE HUGO LUZ dos SANTOS: LLB (Coimbra). Hugo is a Portuguese Magistrate at the Public Prosecutor's Office, who was granted sabbatical from the Public Prosecutor's Office so as to accommodate the special request of the Rui Cunha Foundation (FRC), for his assistance as a special advisor to its Board for the purpose of improving Macau's legal framework (gaming

laws and other laws). He is particularly interested in the role of mediation in respect to gaming litigation in Macau. Hugo is the co-author of a proposal on "Corporate Criminal Liability Legal Framework in Macau", which is now being considered by the Macau Government. He is recognised as an expert in the field of gaming in Macau in particular concerning issues, such as “Walking”, “SideBetting”, “Outstanding Chips”, “Surveillance and Privacy”, and “Tip-Pooling”. He is widely published in the field of money laundering crime in Macau, SAR and Portugal. Hugo is a Member of the Board of the Panel at Vantage10.

Presentation

1. The presentation seeks to guide jurisdictions like Fiji, Australia and New Zealand in regard to gaming law development in a mature gaming country like Macau and aspects of mediation in relation to gaming law litigation.2. About Macau’s cultural Background as the major gaming jurisdiction of the world: to what extent does that cultural background (deeply embedded in Confucianism traits) fosters Alternative Dispute Resolution (ADR), namely Mediation?3. Macau’s approach to prospective mandatory Mediation in respect to gaming Law, especially in the context of complex and high value disputes, such as the ones associated to Tip-Pooling.4. Why prospective lawmakers should take mandatory Mediation in the gaming law of Macau very seriously?5. Instituting mandatory mediation in the gaming law of Macau and implications for Fiji.6. Background: General remarks on Problem Gambling in Australia.a) Background: Responsible Gambling Code in Queensland of 2002, Australia: embracement of a quasi-libertarian approach of gambling: prospective applications for Macau.b) Background: Litigation on problem gaming in Australia: do gaming venues owe a duty of care to assist problem gamblers? Can this be solved through Mediation rather than Litigation?c) Discussion: What lessons should Australia learn from Macau in regard of Alternative Dispute Resolution (ADR), namely Mediation? What lessons should Macau learn from Australia in regard to gaming laws?d) Discussion: what lessons should Fiji learn from Macau in regard of Alternative Dispute Resolution (ADR), namely Mediation in realm of Gaming Law?7. Background: New Zealand: the embracement of a Restrictivist approach of gambling. a) Background: Gaming laws in New Zealand: current landscapeb) Discussion: what lessons should New Zealand learn from Macau in regard of a prospective Alternative Dispute Resolution (ADR), namely Mediation in realm of Gaming Law? What lessons should Macau learn from New Zealand in regard of problem gambling?8. Background: Fiji: the embracement of a Prohibitionist approach of gambling – current legal landscape.a) Discussion: What lessons can Fiji learn from Macau in respect to gaming laws? What lessons should Fiji learn from Australia and New Zealand in regard to gaming laws? b) Discussion: Gaming Laws in Fiji: what lies ahead? Should Fiji legalize gaming, serious attention should be paid to the implementation of a Responsible Gaming Code and to harm minimization strategies related to Problem Gambling (PG) in the realm of Electronic Gambling Machines (EGMs).

c) Discussion: Should Fiji prospectively legalizes online gaming, serious attention should be paid to the implementation of cutting-edge harm minimisation strategies, such as pop-up messages and the personalised feedback.Questions & Answers.

TOPIC: CROSS-BORDER LAW PRACTICE FROM AN INTERNATIONAL AMERICAN LAWYER’S PERSPECTIVE FOCUSING ON ADMIRALTY LAWMICHAEL STERN ESQ. Michael is a member of the Panel at Vantage10 and a partner with the law firm of Rubin, Fiorella & Friedman LLP. Michael is a member of the Panel at Vantage10 and a partner with the law firm of Rubin, Fiorella & Friedman LLP and is a member of the Firm’s admiralty and reinsurance practices. Michael is a litigator with 25 years’ experience representing cargo insurers, terminal operators, vessel owners, charterers and operators, the Protection & Indemnity Associations, recreational vessel owners and their insurers, marinas, domestic and international insurers, reinsurers, reinsurance intermediaries, and international

commodities trading houses in a wide variety of contract and claim specific issues for which his guidance or counsel is sought. He maintains an active litigation and arbitration practice before federal, state and international courts and arbitral bodies. He has considerable experience acting in conjunction with foreign solicitors in contested matters pending before courts and arbitral fora in countries, including England and Japan.



Michael is a JD graduate of the Duke University School of Law, cum laude, and of the University of Pennsylvania, with his Bachelors of Art in International Relations. His professional affiliations include The Maritime Law Association of the United States. He has been an adjunct professor within the International Trade and Marketing Department of the Fashion Institute of Technology and has instructed courses in International Business Law and Import/Export Regulations. Michael is admitted to practice law in the states of New York and New Jersey, and the United States District Courts for the Southern and Eastern Districts of New York, the District of New Jersey and the Court of International Trade. 1. Admiralty law in an international contextThe practice of Admiraly is perhaps the only legal discipline where Courts in the United States accept as persuasive authority legal concepts from ancient Phoenicia; the Rolls of Oleron, promulgated by Eleanor of Aquitaine in the 12th Century after her return from the Second Crusade and 18th Century decisions from the English House of Lords. International law provides the framework for many of the issues faced by the admiralty lawyer. For example, there is international law governing the Carriage of Goods By Sea, salvage, marine environmental issues, safety of life at sea to name a few. And, because many of these conventions are not self-executing, the signatory states have enacted domestic versions of the conventions. The maritime practitioner must therefore be knowledgeable about her own domestic law, as well the local versions in many other countries. The practitioner must also be comfortable interacting with lawyers and clients from just about every country in the world and aware of the differences between the legal and judicial systems in other countries. Challenging, but truly a lot of fun. Disputes rarely involve only one or two countries. Instead, claims arise that involve clients and facts from different states, with the law of yet another state applicable and to be resolved in yet another state. For example, a container ship with a Panamanian flag, owned by a Swedish company partnering with carriers from Germany, Japan and Singapore, carrying 15,000 containers loaded throughout Asia and destined for ports on the US West Coast. That ship meets a storm in the Pacific and 6250 containers are lost or damaged. Depending on the bills of lading issued by the various carriers, cargo claims might have to be litigated in the US, Germany, Japan, Singapore, Sweden or perhaps another country. There will also be claims between the various carrier partners, which claims may be arbitrated elsewhere, possibly in London. Why London? Two reasons. First, London was historically the centre of the shipping and marine insurance world and, second, excellent marketing by London solicitors! Just this brief statement demonstrates that maritime law requires vastly different skills than general and local practice.

2) Legal Practitioner Essential Skills in respect to Cross-Border Transactions and Maritime Law Matters. This presentation will focus on explaining what practitioners need to consider when a client involved in any aspect of the international movement of goods and materials walks into their office looking for counsel. As this Workshop Seminar’s theme is the changing face of international litigation, the presentation will focus on issues relating to cross border litigation and arbitration in the marine insurance and marine transportation fields.

3. What a practitioner should consider during contract negotiations in marine and marine insurance:-i) The choice of law governing a contract. I will address why this is important, highlighting a large marine insurance dispute involving the

Chinese based subsidiary of a US-based trading company with a US and US-affiliate of a French primary insurer and London excess insurers

ii) The forum (court or arbitral) selected to resolve disputesiii) Inclusion of and enforceability of indemnification or release language

II. What a practitioner in a cross border marine or marine insurance dispute must be able to do:-iv) Assemble a team to investigate the facts, analyze the applicable law or laws, the potential jurisdiction(s) and effectively develop a strategy

to protect the client’s interests in whatever forum applicable and communicate that strategy to the client;v) Recognize that you are a member of a team comprised of a wide range of experts all looking to you for leadership and guidance; vi) Understand that strategies and legal tools you may be able to take advantage of at home are not available or may even be illegal in a

different jurisdiction;vii) Appreciate the differences in pre-trial and pre-hearing fact development. In US litigation, discovery is virtually unlimited and intrusive, and

geared to learning both the merits of a claim and its defences. This style of discovery exists nowhere else, not even in the UK where our common law system originated. Civilian systems and for the most part, international arbitration, permits far more limited disclosure of information helpful to a parties’ position;

viii) Humility. You will be dealing with people from vastly different cultures and must attempt to act appropriately and with respect to the cultural differences; and

ix) Know when to recommend that your client resolve a matter and how to manage client expectations to provide best possible outcomes. Questions & Answers.

(by videolink) TOPIC: MEDIATION ADVOCACYJANE GUNN, FCIARb, FPSA, FRSA, CEDR accredited, CMC registered and IMI Certified International MediatorChair of the Board of Management at the Chartered Institute of Arbitrators. In addition to her management role at the Chartered Institute of Arbitrators, Jane, a former Solicitor of the Senior Courts, is a director and board member of the Civil Mediation Council of England and Wales (CMC) and a director and past president of the Professional Speaking Association of the UK and Ireland (PSA UKI). She is also a Member of the Advisory Committee to QUADRA in Italy.



Jane has been invited to speak at the United Nations, the White House, the European Commission and the International Energy Agency and has fulfilled a number of other international speaking engagements. She has also addressed the U.S. Department of Commerce and Federal Trade Commission on the role of Alternative Dispute Resolution in the border-less on-line market place. She is a member of the Board of the Panel at Vantage10.

Presentation

How advisors and their clients can prepare to “win” at mediationMost mediations start with the mediator meeting the parties and their legal representatives, often for the first time, and then proceeding to describe to them the mediation process and what they might expect from the day. The question is why this introduction and explanation has not taken place earlier and why have the lawyers and their clients not prepared for mediation as opposed to litigation? If both lawyers and their clients had a better understanding of the mediation process, could they prepare more effectively and increase their chances of a successful outcome? This session focuses on Mediation Advocacy and how the role of lawyers and advisors in mediation needs to shift from adversarial debate to constructive dialogue.

Preparing for DialogueThe biggest mistake that most parties make together with their lawyers is to stick with the adversarial mindset that has fuelled the dispute so farConflict EscalationHelping the parties to understand how and why the conflict has escalated and how to de-escalate it can be the key to making progressUnderstanding the Key IssuesDiscovering what actually matters most to the parties themselves rather than whether they are legally or morally right The Costs of ConflictMeasuring the impact that continued conflict and litigation may have on the life, relationships and well-being of the parties as opposed to the actual costs to date and costs to trial modelWinning StrategiesHow can two lawyers look at the same facts and data and arrive at opposing conclusions? How is it that their clients genuinely see the same situation in a completely different way?The 4 psychological rules that must be understood if the parties are going to overcome deadlockWhat a Successful Outcome isSometimes, even if the parties don’t settle the dispute at the mediation, it unlocks the deadlock and a settlement can be achieved a short while laterFor Discussion:What can we do to improve the knowledge and understanding of parties and representatives in mediation so that they are better prepared for the mediation process – prepared for dialogue and not for war?Questions & Answers.

TOPIC: VIOLENT CONFLICT TO MEDIATION - THE JOURNEY OF THE DIALOGUE ROAD MAP(by videolink) Maria ARPA, MSc, Dispute Resolution Specialist. Maria is a member of the Panel at Vantage10. Maria has more than 20 years senior experience in the field of ADR in private practice and as an employed expert. In 2006, she founded the Centre for Peaceful Solutions in London with funding from the UK Treasury for the development of a model of mediation (the Dialogue Road Map) for violent crime in an area of London known for knife and gun crime and high levels of poverty and social deprivation. She has since used this model working in prisons, schools, communities and further afield. She was previously Chief Executive at the Lambeth Mediation Service in London.

In 1998, Maria moved to an area of London where drugs and gangs were prevalent. In 2000 Maria had a vision for the reduction of violence through the power of Dialogue. Having trained as neighbour mediator in her local area she wanted to test the boundaries of what mediation could offer. In 2003 a 7 year old girl was fatally shot by a drug dealer. By 2004, drive by shootings and open air drug dealing had become the norm and police were no longer able to walk along some streets. Maria, as a mother of two teenagers felt it was time to act. Having studied Counselling she was particularly struck by the work of Carl Rogers and his Person Centred Approach. She found her way to Dr Marshall Rosenberg creator of Non-violent Communication (NVC) and a former student of Carl Rogers. Rosenberg had decided to use his skills to pursue a model for social change and during 2005 Maria was fortunate to become a train directly with Rosenberg. She made him a promise that she would take what she learned and go into the world and make a difference. She founded the Centre for Peaceful Solutions in London and launched it in 2006.

Presentation

This session focusses on the how the Dialogue Road Map brought the most unlikely characters to mediation and then on to become mediators themselves in their communities.



Setting the scene: Gangs, organised crime, wayward youth and a way of life.Examining who joins gangs, what a gang is and why people choose this way of life. We consider not just the gang members but the impact on others and the wider networks. From her experience of meeting people involved Maria will give a perspective based on real conversations and observations.Setting the scene: Mediating alongside the Criminal Justice System processesAt the time of the Centre for Peaceful Solution’s government project, the Criminal Justice System did not have a procedure or system in place to allow mediation to take place. In this section Maria will explain how she had to tread very carefully looking at successes and failures from the Police point of view and converting (or mediating) their prejudices into acceptance.Setting the Scene: Some ideas about DialogueMaria will talk about the key principles of the Dialogue Road Map from its infancy to the refinement of the model and its applications in mediation, facilitation, restorative justice, group decision making and for front line statutory agency workers.Mediating when there is a threat to lifeA threat to life is a tight rope of negotiation. Maria will talk about the pros and cons of putting oneself in the firing line and how the Dialogue Road Map kept her safe. She looks at the pitfalls and what needs to be in place for this work to be successful.Mediating when money is not a part of the resolutionMediation usually results in some kind of financial or material settlement. What happens when money or goods are not the answer and the negotiation is not about any formal contracts? In this section Maria explains how she mediates to the core.Making mediation irresistibleHow the Dialogue Road Map engages participants. Maria describes key principles in keeping engagement and treading the fine line between encouragement and persuasion.Bringing the whole community togetherHow we developed a model that brought a community together and allowed individuals to stay in the driving seats of their own lives whilst learning how to make better quality choices and take responsibility for the impact of their actions on others. Problem with EvangelismThe importance of being human and making a heart to heart connection. The paradigm shift required to do this work in a world that uses hierarchical and punitive measures._____________________________________________________________

INTERNATIONAL SEMINAR WORKSHOP PROGRAM€¦ · Maria Arpa, MSc, CEO, Centre for Peaceful Resolution...

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