For a week in August, John Cratsley, Director of the Judicial Process in Trial Courts Clinic, was invited to join the teaching team for a Seminar on Commercial Mediation co-sponsored by the Vietnamese Supreme People’s Court and the USAID GIG Program.
By: Hon. John C. Cratsley (Ret.)
More formally titled “The Business Environment and Commercial Mediation: Resolving Commercial Disputes at Court”, the two day seminar for Vietnamese judges and court clerks was presented first in Hanoi and repeated in Ho Chi Minh City. The organizers, wanting the perspective of a retired American judge with mediation experience, asked me to develop four presentations about: the U.S. experience with court-annexed mediation programs, the basics of the mediation process from start to finish, a review of a mediator’s evaluative rather than facilitative techniques, and a summary of US law on enforcement of mediated settlements. I also presented two commercial mediation problems for discussion in small groups, one involving a contract dispute over sales of medical devices and the other a dispute about defective motor oil used by large construction vehicles.
What became readily apparent as the seminar proceeded was the importance of the first Vietnamese court-annexed mediation program already underway in Hai Phong City Court. This pilot project, now six months old, was discussed throughout the seminar and, in fact, a Judge of the Hai Phong Court described the pilot in detail in both cities.
For me, as I told the seminar participants, there is much to like and replicate, beginning with the wide range of disputes, including those involving land, family, employment, contract and government agencies, that are quickly screened and referred to mediation early in the process. The mediators are not the sitting judges who might ultimately try the case but members of a panel of retired attorneys, prosecutors, court officials and judges. If they wish, parties can chose their mediator from among the members of the panel. The cost of the mediation is free as the mediators are paid from the state budget. For management purposes, a brief but reasonable time period is allowed for the mediation to proceed before the case, if not settled, is returned to the court docket. Plus the time involved does not count against the statute of limitations. Further, of importance in Vietnam, any mediated settlement can be approved right in the same courthouse without the delay of traditional confirmation proceedings. Each of the Judges from the Hai Phong Court who spoke during the seminar emphasized the increasing number of successfully settled disputes, and the improved social relationships, achieved by this innovation.
While I was given the role of “expert”, or so the program read, the real significance of this seminar was introducing the concept of court-annexed mediation, particularly the Hai Phong pilot program, to judges and court clerks from the North and South. This introductory seminar, together with follow up mediation training for members of the mediator panels, city by city, will surely further the expansion of court-annexed mediation throughout Vietnam.