UN

Modeling for the World: Five UN Agencies Pledge to Accept Mediation Requests

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By Russ Bleemer

The United Nations this week took a big step in modeling conflict resolution for resolving workplace disputes.  A new report says that, upon request, mediation will be the go-to method of resolving employment disputes for several high-profile UN agencies.

This effort not only serves the UN’s internal purposes but also provides an example for the governments world-wide that support UN efforts.

The Annual Report issued this morning by the Office of the Ombudsman for United Nations Funds and Programmes reveals that in 2021, its five associated UN agencies have elevated mediation’s role in their operations via a new Mediation Pledge in which the organizations each pledge to use third-party neutrals to address internal conflict.

The Ombudsman for United Nations Funds and Programmes works to resolve employment disputes within the United Nations Development Programme; the United Nations Population Fund; the United Nations International Children’s Emergency Fund, better known as UNICEF; the UN Office for Project Services, and the United Nations Entity for Gender Equality and the Empowerment of Women, known as UN-Women. 

Management and staff at the organizations have long been able to opt into the Ombudsman system, which, according to the Ombudsman’s website at  fpombudsman.org, provides informal grievance procedures with which the Ombudsman “may consider conflicts of any nature arising from employment“ within the organizations “and related funds and programmes.”

UN employees at the organizations can contact the Ombudsman “at any stage, for help on any work-related problem where a perspective outside of formal channels would be helpful.”

The new pledge, adopted this year by the five agencies, seeks to increase mediation use as part of the Ombudsman’s system of conflict resolution, with the signing agencies acknowledging that a mediated settlement addresses all parties’ interests and can lead to a more harmonious and less stressful workplace.   The texts of the pledges commit to increase mediation use backed by “statements of principles.” Other than the references to the adopting agencies, the pledges include the following:

  • In the event of a workplace conflict between [the signing agency] and a member of its personnel, the organization is prepared to discuss the possibility of resolving the conflict through Mediation.
  • At the request of the member of personnel or of [the signing agency], an initial discussion on the suitability of Mediation will be hosted by the Mediation Unit of the Office of the Ombudsman for United Nations Funds and Programmes.
  • At any time during the mediation process after the initial discussion, if one or both parties believe that Mediation is not viable in their case, either party may withdraw and proceed with formal options to resolve the matter.

The report further notes that the Ombudsman Office has been beefing up its mediation resources over the past year, in time for the pledge rollouts.  It has developed a new web page offering its materials at https://fpombudsman.org/what-we-do/mediation/. These include, among other items, a mediation guide (available in Arabic, English, French, and Spanish); a mediation training flyer; a guide for lawyers and parties in mediation; and a copy of the Ombudsman Office’s agreement to mediate.

The Ombudsman Office has also increased its outreach and training to promote the use and understanding of mediation services, including 14 specialized training sessions for human resources professionals worldwide that involved more than 450 UNICEF human resources staffers.

According to the new Annual Report, even in the face of the pandemic, this increase in mediation services led to record numbers of mediation cases in 2020, with a 97% settlement rate. Mediation now accounts for a greater proportion—almost double that of previous years—of cases brought to the Ombudsman office’s attention. Full details on the case breakdowns and the Ombudsman Office’s activities can be found in the report, just posted at the website link above.

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The author edits Alternatives to the High Cost of Litigation for CPR.

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UN Report Lauds Mediation Expansion

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By Seorae Ko

In its 2019 annual report from its Office of the Ombudsman for United Nations Funds and Programmes, released in May, the United Nations celebrated significant progress in expanding mediation as a method of solving workplace conflicts.

The report identified it as one of “the greatest achievements of the past year.”

The Ombudsman Office has emphasized mediation use as a way of intervening in the UN’s internal workplace disputes. The office, which helps UN staff “resolve workplace conflicts in an informal, confidential manner with the aim of maintaining a harmonious workplace environment,” provides an informal grievance procedure for several big UN agencies and programs.

In 2018, the executive director at UNICEF, one of the UN agencies the Ombudsman office serves, commissioned an Independent Task Force on gender discrimination and harassment issues. As recounted in the recent Ombudsman Office annual report, the ITF report identified a number of areas that demanded improvement. In response, the executive director put forth immediate measures, one of which promoted the expansion of UNICEF’s mediation services.

Consequently, UNICEF moved to strengthen its mediation capacity and to provide a systematic, informal mediation option for workplace disputes. The effort included the creation of a team of “on-call external mediators” in the Office of the Ombudsman. To improve the reach and quality of services provided by these external mediators, a variety of measures have been adopted.

The Ombudsman Office’s Global Mediation Panel mediates workplace disputes worldwide. The annual report explains that the initial panel members have been identified, selected, and trained by the office in consultation “with some of the world’s leading mediation organizations as well as with the ombudsman offices of other international organizations.”

The goal is to have one or two on-call mediators available in every country where UNICEF has a presence.

In terms of quality, the Office of the Ombudsman now contains a Mediation Specialist and a Mediation Officer, who work toward uniformity in mediation services. They ensure that mediators heed to UN regulations and rules, and follow a mediation code of conduct developed by the Office.

The Office has also embedded quality control mechanisms in the mediation process, by allowing mediation users to discuss their concerns through surveys, with the Mediation Specialist, and with the Ombudsman directly. The office’s International Advisory Board further aids users in addressing their complaints, acting as a potential check on the Ombudsman’s recommendations.

The profiles of external mediators and board members are posted on the Office’s website to ensure transparency. See: https://fpombudsman.org/global-mediation-panel.

UNICEF has complemented the above measures with broader policy updates that increase support for mediation. New rules spell out that staff members are “strongly encouraged” to seek informal resolution mechanisms, including mediation, to “avoid unnecessary litigation.” The rules also allow organizations to suggest mediation to staff members. The report comments that, although these changes fall short of an opt-out mediation model, they are conducive to increasing the use of mediation.

Furthermore, the report identifies that the Office of the Ombudsman’s efforts have been successful because they found the sweet spot in boosting both supply and demand for mediation. The supply side includes having an appropriate number of mediators and providing a solid regulatory framework. The demand side includes training in, and promotion of, mediation services.

The report suggests that past attempts to expand mediation produced lukewarm results because they failed to address this double-sided need. For years before 2019, the United Nations attempted to “make mediation the ‘natural’ step to deal with employment disputes.” In its 2015 annual report, the Ombudsman’s Office had already identified mediation’s potential as a key tool in workplace dispute resolution, and commented on its underutilization.

In 2016, the office observed the positive impact of mediation in cases involving several stakeholders and a substantial degree of complexity. The 2017 and 2018 reports took it a step further, proposing an opt-out system of mediation, which was not adopted.

But the 2019 annual report shows that the office’s continued interest in mediation produced results. The latest report promotes mediation as a procedure that could both save significant resources in the pre-litigation stage and promote important values including self-determination and confidentiality. The report also warns that “successful dispute-resolution programmes worldwide include clear procedural disincentives to those who try to bypass mediation.”

These comments suggest that the United Nations will continue pushing hard to establish mediation as a preeminent pre-litigation procedure. Giuseppe De Palo, the Ombudsman for United Nations Funds and Programmes, described that “[the Office] took a clear position” in the report on “how to make mediation become mainstream.

The Office of the Ombudsman’s annual reports are available here; the office’s home page can be found at https://fpombudsman.org.

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The author, a CPR Institute 2020 Summer intern, is a second year student at Harvard Law School.

CPR Delegation Participates in the 69th Session of the UNCITRAL Working Group II on Expedited Arbitration

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In the picture (from left to right): Franco Gevaerd, Olivier P. André, and Piotr S. Wójtowicz.

By Franco Gevaerd

From Feb. 4-8, 2019, the United Nations Commission on International Trade Law Working Group II held its 69th session at the United Nations headquarters in New York. At this session, as set forth by the UNCITRAL during its 51st session, Working Group II commenced its deliberations on issues relating to expedited arbitration (see the Report of the UNCITRAL on the 51st session).

Given the CPR Institute’s international experience and expertise in international arbitration, the UNCITRAL Secretariat invited CPR to participate in the session as an observer delegation representing its views on expedited arbitration to facilitate Working Group II’s deliberations.

CPR sent a five-member delegation: Noah J. Hanft, President & CEO; Olivier P. André, Senior Vice President, International; Anna M. Hershenberg, Vice President, Programs and Public Policy & Corporate Counsel; Franco Gevaerd, International Consultant/Legal Intern; and Piotr S. Wójtowicz, Legal Intern.

Established in 1966 by the U.N. General Assembly, UNCITRAL plays an important role in developing an improved legal framework for international trade and investment, and in harmonizing and modernizing the law of these fields. The substantive preparatory work involved in doing that is typically assigned to UNCITRAL’s working groups (see the U.N.’s “A Guide to UNCITRAL”).

The UNCITRAL Working Group II is composed of UNCITRAL’s 60 member States and has been developing work focused on arbitration, conciliation and mediation, and dispute settlement. The group’s most recent project is the Singapore Convention. A signing ceremony for the convention is scheduled for Aug. 7, 2019.  Now, as mentioned above, the group’s attention has turned to the topic of expedited arbitration.

Expedited arbitration aims to streamline the process to reduce its time and cost. This topic has long been discussed by the international arbitration community and explored by arbitration institutions, mostly due to concerns with the length, cost and undue formality in the process, especially in less complex cases.

At the beginning of the group’s deliberations, it was generally agreed that this session’s work should “focus on establishing an international framework on expedited arbitration, without prejudice to the form that such work might take.” After that, the work should then proceed to analyze aspects relating to emergency arbitrators, adjudication, early dismissal of claims, and preliminary determinations by arbitral tribunals.

During the session, Working Group II participants discussed in depth many issues related to key aspects of expedited arbitration, including how to foster efficiency while preserving quality, due process and fairness; enforcement of awards resulting from expedited arbitration; application of the expedited procedure, and management of the proceedings.

CPR’s contributed substantially to the discussion throughout the week. In the Working Group II session’s first day, Anna Hershenberg pointed out that since its foundation, CPR has focused on creating rules that aim at efficient dispute resolution and users’ autonomy. She noted that in order to foster efficiency, CPR has built into its domestic and international arbitration rules quick time frames. Consequently, CPR’s international and domestic arbitration cases historically take an average of slightly more than 11 months from commencement of the proceedings to the arbitral award.

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Anna M. Hershenberg making her remarks during the session.

Later in the week, addressing the Working Group’s request to arbitral institutions to provide input on their experiences handling expedited arbitration proceedings, Olivier André pointed out:

CPR administered and non-administered arbitration rules already provide for time requirements which limit the length of proceedings. Users of CPR arbitration often customize their arbitration clauses to further limit these time requirements. In 2006, CPR also promulgated a fast-track procedure to supplement the non-administered arbitration rules. Parties can agree to this procedure to shorten the time requirements provided for under the rules and limit certain other procedural aspects, such as disclosure and the number of arbitrators, to expedite their proceeding.

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Olivier P. André making his remarks during the session.

Besides the CPR’s Fast Track Arbitration Rules, CPR also offers to users two other set of rules that provide for expedited arbitration procedures: The CPR Rules for Expedited Arbitration of Construction Disputes, and the CPR’s Global Rules for Accelerated Commercial Arbitration. In addition, CPR’s committees, which are composed of representatives from different stakeholders involved in the arbitration process, often discuss ways to improve the arbitration process in general and in specific industries.

By the end of the week’s discussion, Working Group II was able to find a consensus in many of the key aspects of expedited arbitration discussed, such as reasoned vs. unreasoned awards, monetary thresholds, and number of arbitrators for expedited arbitration.

Several questions, however, are still open to discussion for the next Working Group II session. For example, what will be the form of the group’s work? And will this international framework be applied to arbitration in general, or specific to international commercial arbitration?

The next session of the UNCITRAL Working Group II is preliminarily scheduled to take place from Sept. 30 to Oct. 4, 2019, at the United Nations in Vienna. CPR is looking forward to continuing to contribute to the efforts.

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The author is CPR’s International Consultant/Legal Intern. He holds a LL.B. from Pontifical Catholic University of Paraná (Brazil) and a LL.M. in International Commercial Law and Dispute Resolution from Pepperdine Law/Straus Institute for Dispute Resolution.

UN Commission on Int’l Trade Law Adopts Text on Online Dispute Resolution (ODR)

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Today, the United Nations Commission on International Trade Law (UNCITRAL) announced its adoption of Technical Notes on Online Dispute Resolution (ODR).  The Technical Notes, which were formally adopted at UNCITRAL’s meeting in New York on July 5, 2016, are the first formal international text recognizing and supporting the use of ODR as a new method of dispute resolution. The formal press release from the United Nations Information Service can be accessed here.

The CPR Institute has been actively involved in the development and drafting of this innovative UNCITRAL text. In response to the need to develop more cost-effective approach to resolving B2B and B2C disputes in the Internet age, CPR became an official NGO Observer to UNCITRAL in the Spring of 2011.

Beth Trent, CPR’s Senior Vice President, Public Policy, Programs and Resources, was invited to serve as a member of the U.S. Delegation to UNCITRAL Working Group III (ODR) and provided an expert perspective on how to best achieve the objective of designing a system that enables parties to resolve disputes in a fast, flexible and secure manner, without the need for physical presence at a meeting or hearing.

The Technical Notes are expected to contribute significantly to development of systems that will enable this objective.  Following UNCITRAL’s approach of issuing texts of universal application, the Technical Notes are designed to ensure that ODR systems are accessible to buyers and sellers in both developed and developing countries.