By THOMAS G. GIGLIONE
I was delighted when I first heard the announcement from the Government of Vietnam issuing Decree no. 22/2017, dated 24th February 2017 on Commercial Mediation.
I believe this is a good “first step” that we finally have a law on mediation in Vietnam. There is an old adage that states the first states that “the first step is the most important step, “ however, I believe that the first step in any journey must be pointed in the right direction. I have some serious concerns regarding the new decree. It is my hope that there will be amendments made to the decree to so to correct this first misstep and that it adheres to international standards on mediation. Many in the legal community in Vietnam are applauding this new law however, there are many myths about the new decree that are commonly accepted to be true, not only by the legal community but also by the Ministry of Justice officials, who were also responsible for drafting the decree. I have summarized my concerns and have outlined these myths below.
Myth #1. The Law concerns “Mediation”
The title of the decree includes the words ” Commercial Mediation” but the new law has very little to do with facilitative commercial mediation. The process for mediation explained in the new decree resembles a hybrid process of conciliation and arbitration rather than commercial mediation.
Moreover, the decree clearly states that it is NOT based on mediation and mentions that it is based on the UNCITRAL Model Law on International Commercial Conciliation.
The word “conciliation and mediation” are erroneously used interchangeably throughout the document despite the fact that the two terms are defined as two different types of processes. The entire wording of the decree reads like a “copy and paste” approach taken from standard boilerplate arbitration and conciliation clauses.
I had already communicated all these concerns to Ministry of Justice officials when I was invited to give my comments on the drafting of the decree. I had suggested, for example, that the decree still mentions the word ” award” in the decree. Everyone who is familiar with Facilitative mediation knows that the mediator is a neutral who seeks to “facilitate” the negotiation between the participants to achieve a win-win solution and does not hand down an “award” Judgements of awards are only decided and meted out after formal arbitration and litigation proceedings.
The objective in mediation is to assist the disputing parties to achieve their interests and to reach a durable (long lasting) agreement. The decree incorrectly defines this final agreement as the ” mediation agreement”. Anyone with any practical experience as a commercial mediator knows that the mediation agreement is signed BEFORE the parties agree to mediate- not after and has it has nothing to do with the final agreement.
Myth #2. The World Bank Approved of the Final Decree on Mediation
The World Bank was only invited to fund to help draft the decree as a development project. They made some very good recommendations as to the wording of the decree, however, only a few of the recommendations were followed by the Ministry of Justice despite objections from the World Bank and myself in an open forum sponsored by VIAC. I was also invited to give comments on the drafting of the decree over two years ago and submit “comments” to the draft decree and it appears that only one of my 10 recommendations were taken into consideration. I had made a public request to obtain a copy of the budget to develop a draft decree for mediation during the open forum over two years ago that was sponsored by the World Bank. I was curious as to the amount of funding that the World Bank had contributed to the Ministry of Justice for this project since the budget is a public document. I was promised to obtain a copy from the World Bank representative attending the forum and had not heard from her since, despite subsequent requests via email.
Myth #3. The New Decree on Mediation follows UNICITRAL (United Nations Commission on International Trade Law)
The decree clearly states that is “based on in principle with the UNCITRAL Model Law on International Commercial Conciliation.” The operative phrase that troubles me the most is the phrase: “in principle”.
I interpret the insertion of this phrase to the decree to mean that this does not adhere completely to UNICITRAL.
Myth 4 # That there is a Roster of Experienced Qualified Accredited Mediators in Vietnam with internationally recognized accreditation.
The truth is that there is no such roster and no nationally or internationally recognized accreditation to become a mediator in Vietnam.
The new decree does not mention anything about what credentials are required to become a mediator other than they must have ” good morals”.
The term “good morals” is a very ambiguous legal term.
Mediation organizations have varying ideas of what makes a good mediator which reflect the training and accreditation of that particular organization. Vietnam has not adopted a national accreditation system, which may lead to a suboptimal choice of mediators.
Myth 5. The New Decree will give Vietnamese Citizens a New Process to Resolve Disputes
Nothing can be further from the truth. This is the most serious myth of them all. I believe that not much will change after this decree.
The reason being that the decree includes the clause “the process will adhere with local modifications to be compatible with the situation of Vietnam.”
This clause can be legally be interpreted to mean virtually anything.
The way I interpret this term “compatible with the situation in Vietnam” is to mean compatible with the “status quo”.
My question is this. Why is there a need to make major modifications to an already proven and internationally recognized process of commercial mediation?
These ” modifications” will mean that we will have the same arbitrators and litigators in place with no experience or credentials in mediation working with a hybrid conciliation- arbitration method of resolving disputes and using the label mediation in name only. It will be the same litigators “wearing a different hat”.
The international business community has already voiced their concerns during panel discussions at the yearly Vietnam Business Forum on the status quo of the legal system in Vietnam. It looks as if the same “situation” will be transferred to Decree no. 22/2017 on mediation.
I take issue with the wording of many other parts of the decree. Moreover, my concerns are not limited to the ones mentioned above. It is my hope that one day we will see some positive changes made to this decree that would include amendments such as creating an approved roster of mediators with national accreditation consistent with internationally recognized standards and a more internationally accepted form of commercial mediation.