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New Mediation Program for Vietnam


 

Thomas G. Giglione

- Mediator and Negotiations Trainer

         Senior Advisor at LawPro www.lawpro.vn



 

On May 16 th 2013, the Ministry of Justice published an important decision setting up a drafting committee to consider bringing in commercial mediation services in Vietnam.


 

 Nguyen Duc Chinh, Vice Minister of Justice, was appointed as Head of a Drafting Committee comprised of 18 ministry officials.


I believe this is wonderful news for the Vietnamese legal system, Vietnamese lawyers, and the general public.


 

This event takes me back to the time I was a lecturer of Alternative Dispute Resolution at York University in Toronto, Canada. It was 1996 and a group of lawyers, mediators, and educators, such as myself, proposed a similar decree for the Canadian Justice System in my province of Ontario.  I was one of the founders as well as chairman of an organization called Upper Canada Dispute Resolution (UCDR). We had the vision and desire to see mediation become integrated into the Canadian legal system. The group worked on a pilot project for one year, pro bono, mediating commercial dispute cases and helping to relieve some of the backlog in the Ontario courts. The ministry issued a report on the results of the pilot project after conducting a survey of over 3,000 mediations. It showed that 44% of the mediated cases were settled within seven days and well over half of the cases were eventually settled through the Mandatory Mediation Program.



 

 In 1997, the Ministry of the Attorney implemented the Mandatory Mediation Program and appointed me as Roster mediator for the Toronto, Ottawa and Windsor regions. The Ontario Mandatory Mediation is still in effect in 2013 and is seen as a model program around the world in integrating mediation with the judicial process.


 

Now I'm living in Hanoi, Vietnam and it seems that history is repeating itself.  I am currently collaborating with Doan Thu Nga, the managing director of the law firm, LawPro, ( www.lawpro.vn ) to present a similar mandatory mediation pilot project modeled after the Canadian system. We have the same vision of introducing commercial and family mediation to Vietnam. We are currently talking with the Hanoi Bar Association, the Canadian Bar Association in Hanoi, and the Judicial Academy in Hanoi about offering negotiation training courses on mediation for lawyers, law students and business people.


 

The Canadian study showed that the Mandatory Mediation Program had met its objective of increasing the speed of dispute resolution in civil cases. While mediation has had mixed results in reducing delays in the United States, the Ontario program – incorporating early mediation and case management – has moved cases to disposition more expeditiously.


 

The Canadian system is a case-managed system in which mediation is incorporated and becomes an integral part of the legal process.


           




 

Before 1997, the Ontario Civil Court system had a reputation for substantial backlogs and delays, so its improved performance since then has shown the effectiveness of early mandatory mediation. Both litigants and lawyers reported a significant impact on reducing costs, about $3,000 dollars per case on average. Lawyers were also pleased because their cases got settled more quickly, they were paid more quickly and also increased their volume of cases. The result was a low-cost solution, resulting in savings for the public, lawyers and the government. (A copy of the report is available by request to the writer by email at Thomas@lawpro.vn )





   


 

Currently there are only two ways to resolve disputes in Vietnam – arbitration and litigation. Soon there will be more options for resolving all types of conflict, including commercial and family law disputes. These Alternative Dispute Resolution (ADR) systems include Collaborative Law, Mediation, Conciliation and Facilitation. I believe, as most lawyers do, that a lawyer should be acting in the best interests of their clients. Part of that responsibility includes advising them on the best viable option in resolving disputes.


All these ADR processes involve negotiation skills between one or more persons. Knowing how to negotiate is a skill and some might say it is an art.


  I believe that Mediation is one of the best ways to resolve disputes because the parties retain control of the process and decide the outcome of negotiations in an informal and confidential manner.



 

           

            

     


 

Collaborative Law is another ADR process often used in family law disputes. The Collaborative Process is very similar to the mediation process above in that the process is voluntary and confidential. All parties engage in principled negotiation with their lawyers with a view to settling the dispute without going to court.




 

Facilitation is used in a variety of group settings. For example, businesses use facilitation as a preventative measure to make their organizations run more smoothly and with less conflict.



Conciliation is another (ADR) process in which the parties to a dispute meet with a conciliator separately in an attempt to resolve differences.





I believe that lawyers and their clients will benefit greatly when mediation is an option. A Win-Win solution will result when the litigants move away from their adversarial positions and focus their energy on finding common interests.


 

 

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