Introduction

Mediator is not a commonly known job in Vietnam, contrary to the deep-rooted development of Mediators in other countries. In developed jurisdictions, namely the UK, Hong Kong, and Singapore, a Court, prior to accepting the case, usually encourages parties in dispute to resolve at an out-of--Court mediation center to assure the objectivity of a mediator and the confidentiality of the mediation process.

Normally, to be a professional mediator, a person needs to meet specific standards of expertise, soft skills, ethics, and – in the circumstances – age limit. The age limit depends on an individual’s experience, but to be a professional mediator, it is commonly advisable that he is older than 35 or 40 years old.

At this age, a mediator is considered seasoned, knowledgeable, and skilled in negotiating and coordinating parties in mediation.

According to statistics, approximately 60-70% of disputes in Vietnam can be resolved by mediation, and there is even more potential in first-staged disputes. Thus, it is promising that soon, mediation will be a new movement of alternative dispute resolution (ADR). Courts in Vietnam have also been catching up with this movement, as they implemented experimental court-annexed mediation at five provincial courts in 2018, and then the Law on Court-annexed Mediation and Dialogue was issued in 2020.

If Vietnam can consider joining the Convention on Agreements for the Settlement of International Disputes through Mediation (“Singapore Convention” in 2018) soon, we believe that domestic regulations on mediation will Trade and related legal regulations will soon be improved to keep up with the general trend of the world and Vietnam's competitiveness index in the eyes of both domestic and foreign investors. There will be spectacular increases. With the joys and results obtained over the past 5 years, I put all my faith in the strong development of the Mediator team along with the growth of the Mediation Centers. Professional awards like VMC have been contributing to creating a professional market where Mediators can unleash their creativity in a truly friendly and highly flexible dispute resolution mechanism. compared to the two traditional "traditional" dispute resolution methods are courts and arbitrators.

Role of the Mediator

The role of Mediators – which differs them from judges and arbitrators – is utilizing their experience and soft skills to earnestly assist parties in mediation to take steps closer to dispute settlement. Other than the 5-step Model Mediation Procedure of CEDR, Mediators can flexibly and creatively apply their soft skill set and coordinate or alternate sessions during the mediation process.

The mediator’s responsibility is in charge of the whole mediation process, and he should create a discussion for parties to open up on their issues – which would never be submitted in the hearing at Court or arbitration and are the deep-rooted issues preventing parties from agreeing on terms – and to manage and moderate the mediation process effectively. A good mediator means he excels at building up relationships, understanding the issues of the dispute, organizing a good mediation process, and creating a friendly and safe environment for parties to resolve disputes and thus maintain the relationship post-mediation amicably.

In mediation, the cultural conflict between parties is one of many obstacles that Mediators must resolve. Without preparation and a details strategy to resolve, such conflict will gradually hinder the mediation process, and even worse, they might lead parties to failure in mediation.

There are certain signs of cultural conflict between parties in dispute. The easiest sign detected is strict limitations imposed on the authorized representative’s authority. As far as we know, the administrative structures of enterprises in Vietnam are mostly family-based. These structures are found not only in small and medium enterprises accounting for 90% of total Vietnamese enterprises but also in giant corporates.

Directors and chairs usually practice their centralized authority and do not grant much of their authority to the representatives at mediation. In my experience, mediation sessions usually do not have the presence of the decisive authority of Vietnamese enterprises. Instead, representatives with limited decisive authority are commonly present in these sessions. Thus, the mediator has to put the meeting sessions on hold multiple times so that the representatives can acquire permission from the decisive authority. This situation causes frustrating difficulties in mediation.

When it comes to mediation, enterprises are afraid of the degeneration of their position as they are the offerer to mediate. They also lack a specific strategy and thus scatter their consideration into bargaining details rather than concentrating on the whole landscape. Consequently, the mediation ends up in a deadlock, as one party seems to excessively cede their benefits while the other party seems to be unreasonably demanding. Geographical distance, the difference between time zones, improperly executed mediation, failure to fully prepare documents, and parties’ hesitancy in meetings and mediation sessions are notable issues that mediators need to be aware of and resolve to facilitate the mediation process better.

Reaching deeper into the dispute

When building up the mediation process, mediators must first determine the nature of the dispute and whether all factors of the model mediation process should be implemented and, if they do, in which order. Mediators should consider the flexibility of the order to make substitutions if needed and the involvement of other parties to assist parties during the mediation process.

In mediation, the parties in dispute have a great influence on the mediation process, which the mediator is responsible for, and on the other side, the mediator has a significant contribution in encouraging parties to sit in discussions and separate sessions with a mediator and utilizing the advantages of the mediation process.

Occasionally, parties might bring up new issues, which are neither legal issues nor in the current dispute; those might occur from a past dispute or dispute related to the third party. The mediator, with their skills, must go deeper into the underlying of the dispute and acknowledge all unsettled conflicts of parties and should impartially consider parties’ proposals. In certain cases, as a party relies solely on its stand and assesses a matter subjectively, it might have a preconceived opinion toward the other party and thus propose one-sided terms.

As his responsibility, a mediator shall sophisticatedly promote the advantages of the mediation process to harmonize the parties’ points of view so that they can have a better overview of all parties’ stand.

If a mediator is skillful in moderating steps in the mediation process and sensibly utilizing their skill set – which is acquired in education and accrued upon practice, then he is capable of uniting parties to move toward unanimity, as well as making use of the underlying of the dispute to facilitate and expedite the mediation process.

When parties are close to reach the mediated settlement agreement, mediators should retain their patience to moderate the last stages of the mediation process harmoniously. One common mistake that inexperienced mediators encounter is that they do not examine the authority of the representatives in the mediation, specifically the representative lack of authority in the specific issues. Thus, a party in dispute might invoke this at court trial as a basis when seeking refusal to recognize and enforce the mediated settlement agreement.

Therefore, during this stage, the mediator shall be patient and carefully examine to make sure that the mediation process was fully and duly executed, all opinion of parties was considered, the resolution is legitimate and achievable, the representative who signs the mediated settlement agreement is authorized to conduct that, etc. before conclude and announce the successful mediation.

Flexibility and impartiality

In mediation, the flexibility of the mediator is a decisive advantage that influences the success of the mediation. Another exclusive advantage of mediation in comparison with court litigation and arbitration is that the mediator is allowed to have separate sessions with each party in dispute. In arbitration, however, any meetings between an arbitrator with a party without the presence of the other party might defect the arbitrator’s impartiality and objectivity. In mediation, in addition to the mediation sessions, there will be separate meeting rooms for the mediator and party to discuss freely, as it creates an open forum for the party to touch upon its confused and tangled issues. The mediator is also allowed to have separate meetings with each party prior to the mediation session.

An experienced mediator is responsible for carrying out an impartial, objective, and neutral mediation process. If a party finds that it is at a disadvantage or the mediator acts in favor of the other party, then it will be more difficult for the mediator to go deeper into the dispute. If that is the case, the mediation is less likely to be successful, and a party might even want to prematurely terminate the mediation process and then proceed to the next stage of dispute resolution. It is dependent on the mediator’s flexibility and creativity throughout the mediation process so that the mediator could have separate discussions with parties and help them consider their advantages and disadvantages. The end purpose is for the parties to understand that the mediator is neither judging nor partially favoured the other party, on the other hand, the mediator is put his best effort to fairly assist all parties during mediation.

In practice, during the mediation process, new issues might occur due to a change in law, the lack of documents and information, or by demand of a third party. These might derive from the proposals for resolution from the parties or the differences in working mechanisms between parties. The mediator should encourage parties to propose negotiable and good-faith solutions to maximize the possibility of reaching a mediated settlement agreement.

Emotional control

In addition to controlling their own emotions, the Mediator also needs to skillfully provide opportunities for parties to be most comfortable expressing their views and telling their stories about what happened to them and to the other side. The emotional relief of each side is essential for whether that side can move away from the past, looking more clearly at the nature of the dispute from the perspective of the other side of the dispute and find a mutually beneficial solution for all parties not only in the present but also towards a common future. An experienced Mediator will allow this relief to take place at a sufficient and effective level without becoming counterproductive. The grievances of one party should be expressed in private meetings with the Mediator to avoid reactions from the other side.

In some exceptional cases, when engaging in a complex cross-border transaction dispute involving more than three parties, controlling the parties' emotions and balancing process and time factors is a real challenge for the mediator The parties may come from very different cultures Mention differences, language barriers, time differences, past misunderstandings, etc. If the mediator does not have enough bravery and experience, it is likely that the parties will not respect each other and even joint sessions can turn into arguments that bring a "toxic" atmosphere to the entire mediation process and lead to failures for the mediation.

As soon as the parties show signs of tension, the Mediator should use the processes of a mediation session, such as separating the parties into private meetings, suggesting that one party should think more about a solution and discuss some points that both parties have agreed on to steer the parties towards positive disputes. In some situations, soft skills in CEDR syllabus such as "the power of silence," "translation, etc." have also proved very effective in bringing parties back to the core of the dispute to find a solution together instead of letting hot heads steer parties into endless disputes over issues to detail and frustrate the entire mediation process.

The non-procedural nature of the mediation process can make it easy for litigants who are not professional in dispute resolution to feel comfortable. Trust is a key requirement for conducting a mediation process. People who are new to mediation may feel insecure in dialogue with the Mediator at the beginning of the mediation, they may give indications of feelings or even keep their thoughts private about the issues involved. Or when they see the mediator leaving and talking to the other party, with whom both the lawyer and client have been in a heated argument for a long time, they may develop negative emotions. A good mediator needs to build trust with each party by secretly handling these issues, and needs to show his or her ingenuity in reassuring the parties and be cautious at the beginning of the mediation, as well as seek to build their absolute confidence in the mediation process being conducted.

Trainer and troubleshooter

Throughout the mediation process, the Mediator also acts as a coach for the parties and their advisors, helping them participate as fully and effectively as possible while always strictly ensuring neutrality and confidentiality. In addition, the mediator should make efforts to truly become a "friend" of the parties so that they have the opportunity to listen and understand the thoughts and aspirations of the parties and thereby be able to come up with appropriate strategies for the entire mediation process.

However, it is not enough merely listen and build the trust of the parties because many situations are still at an impasse because one or all of them do not want to be the first to leave the safe area, and despite encouragement, They are still reluctant to take the initiative to make a better proposal to the other side due to fears that this proposal may disadvantage them. In such a situation, Mediators should also skillfully use the skill of "challenging the parties" to push them proactively to overcome the bottlenecks.

Experienced Mediators even very often stimulate debate and analyze issues and solutions from each party to give suggestions on the order in which issues should be discussed with the other side. In some situations, especially at general meetings, the Mediator may ask challenging questions to the parties such as: "According to the announced schedule, if by 4 pm today the parties do not produce any results, the Mediator will be forced to terminate the mediation sessionand refer the case to arbitration under the Med-Arb clause for further resolution." When jointly challenged, the parties may be forced to make concessions to each other and ignore current obstacles in order to work together on a common outcome to avoid having to refer the case to a judicial authorities.

In his position as a conductor controlling the entire process, the Mediator also needs to pay attention that in addition to exploiting the hidden parts of the iceberg or encouraging the parties to actively participate in the mediation process, the faces of the parties must always be protected and preserved. The disputing parties may meet again in the future and continue to carry out other transactions, so if the Mediator is not flexible or tactful, it may be difficult for the parties to achieve good results or hope for the future. future business stories.

In some other countries, the Court has a mechanism that is not available in Vietnam, which is Pre-Action Protocol (PAP). The PAP mechanism is that when the parties have a dispute and sue in Court without conciliation, the Court gives the parties 2 months to conciliate, and after conciliation fails, they will return to Court. There will be two cases: if the parties can prove that they have tried and made good faith efforts to reconcile, there will be no problem, but if one party has any evidence to prove that the other party has If there is no willingness to reconcile, the Court has the right to impose a fine that is even higher than the amount of money that the party who is not willing to reconcile can receive when winning the case. Therefore, mediation has become a familiar part of the dispute resolution process for many businesses in developed countries.

Conclusion

Mediation is a new trend for international dispute settlement in Vietnam and around the world. Mediation is flexible, soft, and highly effective, helping the parties to both solve problems and problems, while ensuring not to strain or damage the relationship with the disputing parties. In order for mediation to bring such superior benefits, it is necessary to have Mediators who are dedicated to the job as well as have extensive qualifications and experience. Therefore, the mediator profession should be more focused and trained to develop a flexible, effective and cost-effective dispute resolution method for the parties as well as ensure the sustainable development of the business sector in the long run.

With such prospects, it is hoped that in the future, the mediator profession in particular and mediation in general in Vietnam will have the opportunity to develop strongly and help improve the efficiency of dispute resolution in Vietnam, helping to improve the index of business and investment environment in Vietnam.