COMMERCIAL MEDIATION IN VIETNAM – A QUICK LOOK FROM LAWYERS’ PERSPECTIVES

Mediation in Vietnam

Around the world, mediation has been used with success in many types of disputes including those involving labor, the family, the environment, and the community. In the meantime, in many years in Vietnam, a large proportion of the practicing lawyers remains unfamiliar with the process of mediation. These lawyers thus tend not to view mediation as a viable alternative to litigation for resolving their clients’ disputes, and accordingly miss out on the many benefits this more cooperative approach offers. In addition, over the years, there has been the steadily increasing tide of litigation that the court system could not manage to handle.

In response to the need of legal framework and reduction of courts’ pressure, mediation, one alternative method of resolving disputes, would be put in place. In 2017, Decree 22/ND/2017 is promulgated on February 24, 2017 to address commercial mediation as a milestone for developing mediation practice in Vietnam.

Definition

Under Decree 22, Commercial mediation means “method of resolving disputes agreed upon by the parties to the dispute and assisted by mediators in working toward a negotiated agreement…”

Mediation is a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist the parties to improve their relationships, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues.[1]

Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.[2]

Put it simply, mediation is a process in which a neutral party assists the parties to the dispute or conflict in reaching a voluntary settlement of their differences through an agreement that form their future behavior.

Mediator’s role in dispute resolution

Anyone can be a mediator if they possess knowledge and skilled necessary to conduct mediation depending on their specific roles. In the mediation, the mediators take a variety of roles and functions to assist parties in resolving disputes. In the book named “The Mediation Process,” the author offers some examples of the myriad roles and functions the mediator plays in resolving a dispute between two or more parties:

(1) the opener of communication channels who initiates communication or facilitates better communication if the parties are already talking;

(2) the legitimizer who helps all parties recognize the right of others to be involved in negotiations;

(3) the process facilitator who provides a procedure and often formally chairs the negotiation session;

(4) the trainer who educates novice, unskilled, or unprepared negotiators in the bargaining process;

(5) the resource expander who provides procedural assistance to the parties and links them to outside experts and resources, such as lawyers, technical experts, decision makers, or additional goods for exchange, that may enable them to enlarge acceptable settlement options;

(6) the problem explorer who enables people in dispute to examine a problem from a variety of viewpoints, assists in defining basic issues and interests, and looks for mutually satisfactory options;

(7) the agent of reality who helps build a reasonable and implementable settlement and questions and challenges parties who have extreme and unrealistic goals;

(8) the scapegoat who may take some of the responsibility or blame for an unpopular decision that the parties are nevertheless willing to accept. This enables them to maintain their integrity and, when appropriate, gain the support of their constituents; and

(9) the leader who takes the initiative to move the negotiations forward by procedural, or on occasion, substantive suggestions.

Regardless of roles to be taken, the mediator must act in consistence with rules and obligations that govern their mediation practice.

Role of lawyers

Equipped with extensive knowledge and skills, the lawyers themselves will undoubtedly play a vital role in promoting, developing, and leading mediation practice in the next generations. If lawyers are not leaders in marshaling cooperation and designing mechanisms that allow it to flourish, they will not be at the center of the most creative social experiments of our time. [3]

According to the book Attorney’s Practice Guide to Negotiation, the role of lawyers can be categorized into the following:

Disciplines Advocates Intermediaries
Cooperative Transactional lawyers Mediators
Collaborative Collaborative lawyers Arbitrators
Competitive Litigators Judges

When to advise clients about mediation

As legal practitioners, it is important to understand the process and to be able to recognize favorable indications for its use of mediation.

The following situational indicators could be favorable to a mediated settlement of a dispute:[4]

(1) parties and counsel are agreeable to participate in the mediation process;

(2) parties will have to maintain a direct or indirect relationship after resolution of a dispute (e.g., manufacturer and distributor; child custody situation);

(3) sufficient discovery has occurred to make settlement discussions meaningful;

(4) parties desire to settle the matter promptly;

(5) parties desire to minimize litigation costs;

(6) parties desire a remedy that the court is not capable of providing (e.g., renegotiating a business contract);

(7) parties wish to avoid establishing a judicial precedent or a judgment that may have a preclusive effect;

(8) parties or their lawyers have difficulty initiating negotiations with the other side, or the parties are deadlocked in negotiations;

(9) parties or their lawyers lack effective negotiation skills;

(10) parties have differing appraisals of the facts of a case;

(11) voluntary compliance with a settlement result is particularly desirable;

(12) situations involve both requests for damages and nonmonetary relief; situations involving damage relief only or nonmonetary relief only can be equally suitable;

(13) resolution requires complex tradeoffs; and

(14) parties want the matter settled confidentially.

[1] Christopher Moore, Mediation Process, 2nd ed

[2] The Mediator Handbook (adopted by World Bank Group)

[3] Attorney’s Practice Guide to Negotiation

[4] Attorney’s Practice Guide to Negotiation

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