Episode One: The Singapore Convention: Breaking Down Barriers in a Blizzard

Episode Transcript

Intro (00:00):
Welcome to the Andrews Dispute Resolution Podcast,
where Susan Andrews reminds usto realize that we are peaceful
when we live positively andproactively by the Latin phrase,
ex nihilo nihil fit, which meansnothing comes from nothing. So,
if nothing comes from nothing,what is your something going to

(00:21):
be? Follow Andrews DisputeResolution through her periodic
podcast episodes to find out.
Now is the time to realize thatpeaceful place in you.

Susan Andrews (00:33):
Welcome everyone, I am honored and delighted to
have Delcy Lagones De Anglimjoin me for my inaugural Podcast
Episode! Delcy is a lawyer, shewas born in Peru and lives in
Australia, she speaks fourlanguages, and has done
extensive work globally inalternative dispute resolution,
especially mediation, both inthe private and public sectors,

(00:56):
including the AustralasianDispute Resolution Centre and
the World Bank. She was namedInternational Mediator of the
Year in Australia, and she alsoteaches and trains. Delcy is a
Founding Director of theExecutive Committee of the
UNCCA, the United NationsCommission on International
Trade Law, known as UNCITRAL,National Committee for

(01:19):
Australia. The United NationsConvention on International
Settlement Agreements resultingfrom Mediation, known as the
Singapore Convention, is a veryspecial project of hers, as she
was involved in its negotiationand drafting from the very
beginning. The Ministry of Lawof Singapore elected her as one
of the faces of the SingaporeConvention because she brought

(01:42):
the delegates together andfacilitated compromises in the
negotiations. She is the onlyface of the Convention who
belongs to an observerorganisation, LawAsia, and not
to an official countrydelegation. Weve entitled
Episode One, The SingaporeConvention - Breaking Down
Barriers in a Blizzard. And,before we get started, Delcy and

(02:05):
I decided to have me provide abasic explanation of mediation
as it pertains to internationalcommercial businesses. Mediation
offers significant advantages tointernational businesses in
resolving their disputes, suchas preserving their commercial
relationships, a cost-effectivedispute resolution process
compared to litigation andarbitration, and providing the

(02:27):
parties a voluntary andconfidential process in which
they have self-determination. Inthe context of mediation,
self-determination is thecontrol and informed consent the
parties have over their outcome.
The informed consent is based ona conscientious preparation and
negotiation process thatprovides the parties the
information they need to makeinformed decisions. So with

(02:49):
that, it is my honor andpleasure to introduce Delcy
Lagones De Anglim. Delcy,welcome to the Andrews Dispute
Resolution Podcast and thank youfor joining me.

Delcy Lagones De Anglim (03:02):
Thank you very much, Susan, for that
kind introduction. And I am veryhonored to be the first person
to do the podcast. And I thinkit is so important to start
having discussions aroundmediation and, of course, today
we will talk about the SingaporeConvention.

Susan Andrews (03:21):
Thank you, Delcy.
It is such a pleasure to haveyou here. Delcy, let us start
our discussion with the spiritof the Singapore convention,
specifically why and how it issuited for businesses throughout
the business cycle, frominternational commercial
contracting, to disputeresolution, to the enforcement
of the mediated settlementagreement. This will provide a
practical context for thissignificant development in

(03:44):
international trade.

Delcy Lagones De Anglim (03:47):
Well, maybe we should start by talking
about why businesses willbenefit from a process which
allows them to make decisions ontheir own. And, for the
listeners who are businesspeople or lawyers who advise

(04:08):
businesses, they know that onecore ingredient in conducting
businesses is the fact thatrelationships that you form with
other businesses or with yourclients are the basis for the
success of your business. So,when a conflict arises, and I

(04:30):
said when not if because, in myexperience, most businesses will
end up with some kind ofconflict, not necessarily with
the outside actors, but alsowithin businesses. So, it is
important to recognize andacknowledge that when conflict
arises, we do have a processthat will allow us to resolve

(04:56):
this conflict in a way thatpreserves or fixes the
relationship that has beeneither broken or gone into a
little bit of a pear-shapedsituation. So, I believe that
the more we learn aboutalternative dispute resolution

(05:18):
methods that can help us toresolve this conflict amicably,
then I think we are in a goodspace to fix these
relationships. So, in that, ofcourse, mediation, as you know,
is one of the processes that hasbeen used for a long time now,

(05:40):
to resolve this type ofconflicts. But, also, I have to
say that mediation is not as newas we might think it is. If you
think about cultures around theworld, they all have some kind
of amicable dispute resolutionprocess, in the, you know, daily
lives. What we have done, ofcourse, is in the last 20-25

(06:04):
years, is to pick all theingredients of these amicable
methods to resolve disputes inthese all cultures around the
world, and put them in a moreformal way. And, of course, we
have, you know, the famous book"Getting to Yes" which sort of
gives us a starting point aboutseeing conflict in a different

(06:28):
light. And, Fisher and Uri, ofcourse, the fathers of modern
interest-based negotiation, arethe ones who we have to thank
for, in a sense, formalizingthese concepts of interest-based
negotiation. Yes, that is sortof the way that I see the

(06:49):
importance of mediation, and howit is actually the best suitable
process for businesses. And, asyou said rightly, not only for
resolving disputes, but once youlearn the techniques of
mediation, I think it is veryuseful to have those skills

(07:12):
until next present when you arenegotiating a contract. In fact,
there is a process that iscalled deal mediation, which, in
fact, does not have a conflictto be mediated, but it is about
getting to a deal. So, that iswhy deal mediation should not be
called deal mediation, but it isfor some reason, but that is the

(07:34):
way that mediation can be usedfrom the birth of a contract
throughout all the, you know,the implementation of the
contract. And as you said, also,rightly, at the beginning, to
the dispute resolution process,and to the enforcement of that
mediated settlement agreement,now, with the birth of the

(07:55):
Singapore Convention.

Susan Andrews (07:56):
Excellent. Well, it is fascinating because it is
so practical, it applies toreally the whole business
relationship from, as you said,the negotiating to the
problem-solving anddecision-making, it really is
practical, and then theSingapore Convention comes into
play. Well, in my approach tothe dispute resolution processes

(08:18):
of negotiation and mediation, Iemphasize the importance of good
faith and good work, and Iunderstand that when you were
Working Group reached an impassein the middle of a blizzard in
New York, you agreed tonegotiate under the Chatham
House Rule, which resulted in anagreement that became the motor
of the Singapore Convention. So,please set the stage on what

(08:40):
happened in that meeting ofdelegates in the middle of that
Blizzard and how the ChathamHouse Rule put this Convention
on mediation in motion.

Delcy Lagones De Anglim (08:48):
Well, this is a very, I think, famous
day for the SingaporeConvention, because as you said
rightly, that was the day whereall of us sat in this law firm
in New York and actually usedmediation techniques to find an

(09:12):
agreement, but I am going to setthe stage a little bit as you
asked. First of all, you knowthe UNCITRAL meetings, as you
may know, the UNCITRAL is theUnited Nations Commission on
International Trade Law. And,one of the objectives of
UNCITRAL is to harmonize legalinstruments to encourage fair

(09:37):
trade around the world. So, thisUNCITRAL, you know, the
Commission, as we call it inshort, meets twice a year, once
in Vienna, in around August orSeptember, and once in New York,
in around February. Why do theychoose February in New York, I

(10:01):
have no idea because it is socold. But, anyway, it is still
New York, so. There are workinggroups, which have the task to
address different issues. And,Working Group II is the one that
is in charge of discussionsabout dispute resolution. And,

(10:25):
the United States delegationmade a request to the Commission
in 2014 to work on a conventionto enforce mediated settlement
agreements. Then, of course, thework started, and the meetings
started, as I said, once inVienna and once in New York.

(10:48):
And, it was an interesting firstmeetings, because I was the head
of delegation for LawAsia, and,as you said, at the beginning,
as well, one of the observerdelegations, because in UNCITRAL
you have the official sort ofcountry delegations and the

(11:09):
observer delegations, whichnormally are organizations that
are experts in the subjectmatter of the discussions. So,
there I was, one of the fewmediators, full time mediators
in these meetings, and myobservations at the beginning
were that there were not manymediators in the room. And, in

(11:33):
fact, the discussions werecentered into arbitration
concepts and arbitration, youknow, procedures. And, it was a
little bit confusing, because Ithought we are talking about
mediation. But, anyway, so pushforward two sessions more and we
were finally discussing aboutconciliation because this was

(11:57):
the word utilized in theUNCITRAL documents, not
mediation. So, then again, therewas another challenge about how
are we gonna be talking aboutthe same thing if we have
different concepts aboutdifferent things, you know, we
know that we're talking aboutmediation, but we're calling it
conciliation or amicablesettlement processes, etc. So,

(12:23):
apart from just drafting theConvention, I think it was an
important process where therewas almost a harmonization of
concepts, as well, which Ibelieve it is very, very
important. So, setting up thescene about these, you know,
delegations of different legalsystems, different languages,

(12:48):
different interests, as I saidat the beginning, mostly
arbitrators attending themeetings and so they were sort
of a bit confused, what ishappening here, then the
diplomats, you know, thepoliticians, the lawyers, the
academics, we did have a numberof academics attending the
meetings. So, it was really avery challenging first meetings,

(13:13):
but, again, we got to 2018 inFebruary, where we were actually
advancing in writing the firstarticles of the Convention. And,
by the way, we decided also towrite, why not, a Model Law,
because, you know, while we arewriting the Convention maybe we

(13:35):
should also write a Model Law,because some delegations were
not interested in discussing aConvention for different
reasons. So, we had a compromiseof, okay, we have to satisfy
everybody, so we startedconcurrently drafting the
Convention and the Model Law.
So, of course, then anadditional challenge, but, of

(13:59):
course, you know, we keep going,so back to February, on the
Monday, Tuesday, Wednesday, weare sort of advancing a little
bit, it is very cold, and on theThursday, we had been discussing
Article Five, as, as you willknow, Articles Three, Four, and

(14:21):
Five are the heart of thisConvention, because we were
discussing about enforcement ofthe mediated settlement
agreements, not the recognitionof the settlement agreements,
but enforcement of them. So, wegot stuck in Article Five. And,
we were not going anywhere, wewere going in circles, and,

(14:44):
okay, we thought, we finished onthe Wednesday and on the
Thursday, we decided, okay,well, this is the day we have to
make some progress, because,otherwise, you know, we were
running out of days to havethese discussions keeping mind
that we have to finish on Fridayat 5pm. So, Thursday morning
arrives, huge blizzard in NewYork, everything is stopped,

(15:08):
schools canceled, it is twometers of snow, nobody can do
anything, we are stuck in thehotel, which is just over the
road from the UN headquarters.
Most of the delegations, we arein that hotel for convenience,
of course, but there were otherdelegations.

Susan Andrews (15:29):
And, those offices were closed?

Delcy Lagones De Angli (15:31):
Exactly.
So, what do you do in a blizzardday in New York, of course, you
normally stay indoors and watchtelly or have some hot
chocolate, but, you know, youcannot do that the whole day,
and since we had, you know, thisjob to do, then we suddenly
converge in the lobby of thehotel and this just wandering

(15:54):
around and what to do andsuddenly the idea of meeting in
a nearby law office, which waskindly offered by one of the
delegations came about and sothey said, oh, shall we do it?
Let us do it. So, it was notobviously all the delegations
there because of the situationof the blizzard, but we tried to

(16:18):
contact as many delegates aspossible, and the ones who could
arrive. So, then we made our wayto the law offices and we sat
there we were, I don't know,maybe around 15 of us and only
two full mediators in that room.
Mr. Michel Kallipetis he is afriend of mine, an English

(16:41):
mediator, and myself, and, ofcourse, we did have all the
delegations with their advisorswho were very experienced
mediators, but not necessarilyfull-time. Some of the
delegations did have, obviously,officials with great experience
in mediation, maybe another, theadvisor for the Singapore

(17:04):
delegation, Mr. George Lim,also, a good friend of mine, he
is a full time mediator, infact, considered the father of
mediation in Singapore. So, Ishall correct myself. So, there,
not two, three of us, full-timemediators. So, that was the
scene, Susan, for that famousday, and we started discussing

(17:27):
Article Five. And, again, wewere not going anywhere until we
realized, Michel and I realized,this is almost like a mediation
where the parties do not want totell exactly what was happening
for them, maybe we should putsome confidentiality rules. But,

(17:48):
of course, confidentiality rulesmight not apply because then we
had to go back next day topresent a report to the General
Assembly. So, somebody veryintelligently suggested, why
don't we use the Chatham HouseRule, which means that, you
know, we can tomorrow share thecontents of this meeting, but we

(18:12):
shall not disclose the names ofthe person or the organizations
that made the suggestions. So,everybody was happy with that,
and off we go.

Susan Andrews (18:22):
No identification.

Delcy Lagones De Anglim (18:23):
Yes, correct.

Susan Andrews (18:24):
So, no identification of parties and no
attribution to what was beingsaid.

Delcy Lagones De Angli (18:29):
Exactly.

Susan Andrews (18:30):
Excellent. This is a great setting. So, now we
understand how the Chatham HouseRule came into effect on this
Convention, and, well, so forbasic practical understanding of
the Singapore Convention forinternational commercial
businesses, can you brieflyexplain the role of the Model
Law and the Notes, because youhave mentioned the Notes when we

(18:54):
have spoken before, and with theConvention, because they each
serve distinct andinterdependent purposes really?

Delcy Lagones De Anglim (19:01):
Sure.
The Convention, it is a documentthat needs to be taken on its
entirety. So, if a countrydecides to sign and ratify the
Singapore Convention, they mustdo so without any changes,
right? It is almost like if yougo to a school, and they tell
you this is the uniform you aregoing to wear, there is no

(19:24):
negotiation about it, you haveto wear that uniform.

Susan Andrews (19:28):
It is all or nothing.

Delcy Lagones De Angli (19:31):
Exactly.
And the Model Law is exactlythat. It is just a model of a
set of rules that countries canadopt and adapt according to
their needs. So, you know, it isone of these very sort of free
schools where you can actuallyuse a little bit of this and a
little bit of that according towhat suits you best. So, that is

(19:53):
the Model Law, but both sets ofinstruments have the same
principles, which is that theymake concepts about what is
mediation, what the extent ofthese instruments are, and in
differentiating them, of course,the Convention is, as I said

(20:16):
before, gives you very strictrules, you know, there are 16
articles that need to be, youknow, complied with, and it
tells you exactly what kind ofdisputes can be used in this
Convention.

Susan Andrews (20:33):
Yes. And, could you just specify what those are?

Delcy Lagones De Anglim (20:37):
Sure.
It has to be an internationalcommercial dispute, so it cannot
be applied to family or propertyor, you know, other types of
disputes, it has to be,according to the Convention only
international commercialdisputes as defined in the
Convention.

Susan Andrews (20:56):
And, do they have to be cross-border where they
are in two separate states?
Yes, the concept ofinternational is basically to
suggest that the businesses needto have either different seats,
addresses or come from differentcountries where there is, in
fact, and I am going to read itin order to not make a mistake.

(21:18):
It says that the internationalpart of it is about at least two
parties to the settlementagreement have their places of
business in different states, orthe state in which the parties
to the settlement agreement havetheir places of business is
different from either the statein which a substantial part of

(21:41):
the obligations under theagreement is performed or where
the subject matter of theagreement is most closely
connected. So, that is thedefinition of international for
the purposes of the SingaporeConvention. And, of course, as I
said, it does not apply topersonal family or household

(22:03):
purposes, or employmentdisputes. So, it is just
commercial and internationalaspect, this definition. The
Model Law, of course, has thesame ingredients, but it gives
states the flexibility to applyit on its entirety. Some
governments actually do that,they adopt the full Model Law,

(22:24):
especially countries that do nothave any legislation about
mediation, that is a very easything to do. But others, of
course, if they already havesome type of legal framework,
then they will adapt the ModelLaw according to their needs.
And, the Notes, this is a veryimportant thing that you

(22:46):
mentioned, because in theabsence of a harmonized
mediation legislation around theworld, but also in regards to
concepts, and also in regards toaccreditation of standards of
mediators, we did not have muchon that. So, it was decided that
the Notes that normallyaccompany this type of

(23:07):
negotiation should be also animportant point in interpreting
both instruments, the Model Lawand the Convention. So, we have
these extensive Notes, whichtell you exactly, for example,
you know, how do you terminatethe mediation, how do you draw
up the settlement agreement, howdo you choose the mediator. But,

(23:31):
of course, these Notes are not,you know, enforceable, in a
sense, they are just like aguidance for the Convention, as
well as for the Model Law. And,the same with the travaux
preparatoires. You know, theseare the notes that accompany the
negotiations, and they also needto be taken into account. But in

(23:54):
this case, the Notes have beenextensively, you know, written
and prepared by the Commission,in such a comprehensive manner,
that if there are any doubts,you know, I would suggest that
people go to these Notes, by theway, it's all in the website, in
the UNCITRAL website.

(24:15):
Yes. They work together. Theyreally are interdependent
sources. And, what about thestatus of the signers versus the
ratifiers, the states that haveaccepted this treaty?

Delcy Lagones De Anglim (24:29):
Well, I'm gonna generalize here
because there are somejurisdictions that work in
different ways. But in general,in international law, when you
sign a convention, it isbasically your commitment to
consider the ratification of theConvention. So, it is not
enforceable yet, it is not partof the domestic legislation yet,

(24:53):
until the state ratifies theConvention. I always make the
example of marriage proposal.
So, if somebody proposesmarriage to you and gives you a
nice ring and everything, thatis signing the Convention. But,
the marriage has not occurredyet. So, until you ratify, you
are not married.

Susan Andrews (25:17):
Well, digging a little bit deeper about the
delegations, it has been toocommon that lawyers and their
clients have underminedalternative dispute resolution,
such as arbitration andmediation, through
implementation that reflects thehigher conflict, complexity, and
costs in litigation that ADR,specifically mediation, is

(25:37):
intended to reduce. So, thistendency, which continues today
was evident among thedelegations representing the
various stakeholders of theSingapore Convention. Could you
please describe the dynamicswith those delegations? And you
mentioned they included specialinterests, politicians,
diplomats, lawyers, arbitratorsand, ironically, very few

(26:00):
mediators. And, yet, this is aConvention on mediation.

Delcy Lagones De Anglim (26:05):
Yes, but I think we have to
understand first that, althoughmediation seems to be very
common these days, in a sense,there are still a lot of members
of our legal profession that donot know about mediation. They
have heard probably the word,but they do not know exactly

(26:28):
what it is, and how it isdifferent from arbitration and
other forms of alternativedispute resolution. This was
brought up by a judge here inAustralia, when we had a
seminar, two, three years ago.
And, he said that he wasabsolutely shocked that Queen
councils appearing in front ofhim, and this is in a commercial

(26:50):
court, had no idea about thedifference between mediation and
arbitration. And, I am talkingabout three years ago.

Susan Andrews (27:02):
Isn't that something .

Delcy Lagones De Anglim (27:03):
Well, so, that is the first thing, I
think we have to do more workabout sharing the concepts of
mediation and how it differsfrom other forms of alternative
dispute resolution. And, then,of course, you have initiatives
of a lot of law schools now, Imean, 10 years ago, it was

(27:24):
crazy, you know, why would youteach future lawyers about
alternative dispute resolution,that doesn't make sense, you
know, lawyers make money aslitigators. Well, no more,
lawyers now have to have abigger toolbox. And, since
mediation now is becoming morepopular, for obviously obvious

(27:49):
reasons, as you mentioned, it,it is cost-efficient and it is,
in fact, not solelycost-efficient. For me, the
attraction of mediation is aboutgiving the parties in conflict
an opportunity to talk to eachother, to clarify issues, to

(28:12):
clarify, you know,misunderstandings, and then to
come up with solutions or ideasthat will get them to the
future. And, so this iscompletely different from a
third, you know, party coming toadjudicate or to make the
decision for them. So, I thinkfor me more than the

(28:35):
cost-efficient part, it isabout, that it is about party
autonomy, it is about partiestaking charge of their...

Susan Andrews (28:45):
The self-determination.

Delcy Lagones De Angli (28:47):
Exactly.
I think that is, in a sense,what we have to share with, you
know, with everybody. If youthink of the birth of mediation,
it didn't come withinternational fancy
cross-border, you know,disputes. It sort of started,
probably in a little communitysomewhere, you know, as I said,

(29:07):
before, you know, they have beenmediating for ages. In China, I
was in China and in Vietnam sometime ago and the numbers of
community mediators, I mean,they do not have the
certificate, or the 40-50 hourstraining, but for all intents
and purposes, these people aregenuine mediators, resolving

(29:29):
conflicts within theircommunities.

Susan Andrews (29:33):
That is what they are doing.

Delcy Lagones De Anglim (29:34):
Right.
I think I am lost a little bitin the question.

Susan Andrews (29:38):
No, no, this is excellent. No, we were covering
some good ground here. So well,really, so then back to the
dynamics with those delegations,I mean, you were dealing with
sort of a mediation or anegotiation within your
environment there. How were youdealing with all these competing
interests? It's complicated, andso few mediators.

Delcy Lagones De Anglim (29:59):
Sure, it was an interesting dynamics,
as you said, because everybodyin the room, especially the
country delegations, theofficial delegations, have
instructions, right? So, eachcountry is there because they
want to protect their owninterests. And, you will have

(30:20):
sometimes delegates who areacademics or who are, you know,
representatives, officials fromthe government, others will be
the diplomatic representatives.
So, it was a cohort of differentinterests, but sort of trying to
point all to the same direction,but it was not known, which
often happens in mediation, isthat they still do not know, the

(30:43):
real interests, you know. Theythink they are there for
something, but they are, infact, they are not.

Susan Andrews (30:51):
Just like in a dispute in mediation.

Delcy Lagones De Angli (30:54):
Exactly.
So I made it my job, actually,in the coffee breaks, to discuss
with the delegations that I feltdid not have enough expertise in
mediation, and I would justapproach them and then have
coffee and have a chat. And,gradually, I found myself being
invited by coffees and lunchesand everything, because they

(31:15):
were genuinely interested in thedifferences. You know, some big
delegations would come to me andsay, can you tell us the
difference between conciliationand mediation? We are not clear
about that. And, others will sayto me, and how about, you know,
the arbitral proceedings inthis? And no, no, no, this is
not arbitration. This ismediation, you know, and that
kind of thing.

Susan Andrews (31:37):
Excellent. That is wonderful. Delcy. Sort of
surprising, is it not?

Delcy Lagones De Anglim (31:42):
Of course, but you have to remember
that in these internationalmeetings, you have not only
these, you know, differentapproaches and interests from
different people from differentactors there, but also they come
from different legal systems,they come from different
cultures, they come fromdifferent languages. Yes, we

(32:05):
were working mainly in English,of course, the different
dynamics and the differentinterests, of course, of all the
delegations, including theobserver delegations, of course.
I think you are right. It is2018, I belive, but we can
And, so you can imagine thecomplexity of just coming to an
agreement of 16 articles,because, if you think of it,

(32:25):
this convention is just 16articles. And you may think, for
our colleague lawyers out there,you would think, oh, well, you
know, we can, you know, closethis in one day, for sure, even
in a morning if we work hardenough. But, we finished it in
2018. So February 2018, was thetime when the Convention and the

(32:47):
Model Law were finally drafted.
And, I also remember now that weprobably did not finish. How
what happened with the blizzardday, we were all so excited
about it, but just to finishthat thought, in fact, it was
not 2018 it was 2017, I think.
Well, I am confused now, Susan.

(33:10):
double check.
And, I was there. But, anyway,so this is what old age does to
you. Sometimes you do notremember things clearly.

Susan Andrews (33:18):
It was a long haul.

Delcy Lagones De Anglim (33:20):
It was, it was for sure. But we finished
Article Five on that blizzardday, the group presented the
Articles agreed and compromisedthe next day. And, that is how
we finished those importantthree, four and fifth Articles
of the Convention. But, yes, soretaking this issue of the

(33:41):
complexity of the dynamics, ofcourse, at the end, as we have
discussed before, it was more orless a mediation process in
itself, because you had theconfidentiality, well, the
Chatham House Rule, more orless, and then you had the
active involvement of thedifferent delegations, almost
becoming friends with eachother, trying to share ideas

(34:05):
outside the main meetings andcoffee breaks and lunches and
dinners. For the first time Iattended the ice hockey in New
York, between a Canadian teamand a U.S. team. And, we were
many delegations that night.
And, it was interesting because,even then, at the ice hockey
event, we were discussing aboutthe different Articles that we

(34:29):
will probably be doing the nextday.

Susan Andrews (34:35):
Was this on Thursday night, was the hockey
game on Thursday night?

Delcy Lagones De Anglim (34:39):
No, I think we did it actually on a
Wednesday. I think it was aTuesday or on a Wednesday before
that blizzard, that famousblizzard day.

Susan Andrews (34:47):
Oh, yes. Wow.
Well, it is just fascinating,and why do you think there was
such an impasse at Article Five?

Delcy Lagones De Anglim (34:54):
Well, because that is about the heart
of the Convention, it is aboutenforcement. And, how do you
make a framework for enforcementthat satisfies all the countries
involved. And, it is not justabout that we all agree that it

(35:14):
is a good idea, but it has toalso make sense to your own
domestic legislation. And, ithas to make sense in the
language. So, to give you anexample, we were discussing, I
do not know, it was one, one ofthe parts of Article Five, and
it did make sense to alllanguages, but except to Arabic.

(35:37):
And, then we had to change theword and it did not make sense
in French. And, then it did notmake sense in another language.
So, we had to constantly change.
It is not just about agreeing onthe idea, it was about agreeing
on the words that will make atthe end sense...

Susan Andrews (35:55):
The terminology, yes.

Delcy Lagones De Anglim (35:57):
...in each language, but also in each
legal jurisdiction.

Susan Andrews (36:00):
That is fascinating. Yes.

Delcy Lagones De Anglim (36:02):
So, that is why it was not just
about we did not agree. In fact,we did agree on a lot of things
very quickly, but it was aboutsetting the right wording. And
as a lawyer, you know, thesewords will become really, you
know, the basis for everythingthat you can do and cannot do

(36:23):
with a legal instrument.

Susan Andrews (36:24):
That is right.
Well, that is an excellent segueto our last topic, because
speaking both about negotiatingthe Singapore Convention and
generally about ADR, the boatmetaphor seems to suit the
situation in which lawyersresistant to ADR first jumped on
to the arbitration boat, thenonto the mediation boat,
accompanied by arbitratorsresistant to mediation. So what

(36:47):
would be your perspective onthis boat we are all on
together?

Delcy Lagones De Anglim (36:53):
Well, first, I think I have to say
that arbitrators and litigatorsshould not be very scared about
mediation at all.

Susan Andrews (37:03):
I agree.

Delcy Lagones De Anglim (37:05):
I do not think I exaggerate in saying
that mediation it is not usefulfor all disputes. And, there are
a lot of instances where youhave to make an assessment and
say, this dispute cannot andwill not be, you know, mediated,

(37:25):
for many reasons. And, maybe youcan do a podcast for this about
a different time. But, there aremany reasons why you should not
mediate.

Susan Andrews (37:35):
Excellent topic.

Delcy Lagones De Anglim (37:36):
But, then, of course, you have the
options of litigation orarbitration. So it is not about
you know, everything is going tobe mediated now, I think it is
the wrong perception ofarbitrators and litigators,
thinking that mediators we aregonna take their, you know,
their money from them. This isnot true. I think it is just one

(38:00):
more tool in the toolbox of allof us, who work in an area where
the main objective is to helpour clients. And, in order to do
that, you know, it is like adoctor, you know, you go to a
doctor, and then they make adiagnosis of something, and then
they give you some ideas ofdifferent treatments. And, if

(38:22):
you do not like that doctor,then you go to somebody else. It
is exactly the same thing. So,in my view, this analogy of the
boat, and I think I usedsomething similar in Hanoi,
actually, in 2013, when the NewYork Bar State Association had
their spring meeting, you know,they always like doing it in
these very nice places, I amtelling you. This one in Hanoi

(38:49):
was one of the best conferencesI have ever attended in my life,
I can say that. And, I did saythat, and I had a boat finishing
my presentation about thedevelopment of mediation
globally. I had a little boat,which had two people, you know,
sitting on the opposite sides ofthe boat, and I do not know the

(39:11):
terminology, but they wererowing, you know, to their own
ends, obviously, they were goingin circles, they were going
nowhere.

Susan Andrews (39:18):
Different directions.

Delcy Lagones De Anglim (39:19):
Yes, so but then the last drawing that I
had was a boat where two werelooking at the same direction
and rowing at the samedirection. And, I think for me,
as a dispute resolutionpractitioner, you know, which I
have to reveal I was in lovewith arbitration initially, you
know, when I finisheduniversity, but it is a very

(39:44):
established process, veryfamiliar with a lot of our
colleagues, and very successful.
But, now we have this othermethod that also provides a lot
of benefits for our clients. So,I think we need to recognize the
different roles that we canprovide in the dispute

(40:04):
resolution theme and haverespect for each other. You
know, I do not see why we shouldbe, you know, rowing to
different directions or tryingto put down mediation or
arbitration or whatever. Everydispute has its own dispute
resolution process, a suigeneris one, it is tailor-made,

(40:25):
whatever word you want to use,but it is about making that
assessment and saying that thisis, you know, and yes, you are
right, we are all in the sameboat.

Susan Andrews (40:36):
Yes, we are.

Delcy Lagones De Anglim (40:36):
I just hope that we can all have this
conversation more often, like,you know, this podcast, for
example, is an excellent way,you know, and I congratulate you
Susan for doing this, becausethis probably we give them a
little bit more informationabout what it is and what it is
not. And, you know, maybe Imight have not made sense in a

(40:59):
lot of instances, but I am veryenthusiastic about mediation and
about settling, you know.

Susan Andrews (41:07):
I am, too.

Delcy Lagones De Anglim (41:09):
And, I think we have a lot of work to
do. And, we can only achievethings if we work together as a
team. It does not make sense to,you know, there is already too
many fightings in the world tonow start fighting, you know,
litigators and arbitrators andmediators. It just does not make
sense to me.

Susan Andrews (41:24):
Yes, it is absurd. Well, I appreciate the
analogy of the boat. And, Iagree with you, we are all
interested in disputeresolution, and the partyies'
interests come first. And, it isan assessment we make, well,
they make with our assistance,you know, which process or

(41:46):
processes are most suited fortheir dispute resolution. Well,
Delcy, thank you, again, forjoining me for this first
Podcast Episode, and for sharingyour knowledge, experience,
insights, and wisdom regardingthe Singapore Convention, and
the difference that can make forinternational trade and the
mediation process.

Delcy Lagones De Anglim (42:07):
Thank you so much, again, Susan, for
the kind invitation. I am reallyvery honored that I am the first
one. I am sure there are goingto be many more guests coming
and talking to you about thisimportant topic about mediation.
But, if I may say, so I think weleft Article Five hanging. Sorry
about that. But, just to let ourlisteners, your listeners, to

(42:29):
know that Article Five is aboutgrounds for refusing to grant
relief. So, and this is, that iswhy it took us such a long time
to agree.

Susan Andrews (42:40):
That is was why it was so difficult.

Delcy Lagones De Angli (42:42):
Exactly.
And, the only reasons why acourt would actually refuse to
grant relief, and that is why itwas important. So sorry about
that.

Susan Andrews (42:51):
Well, that is critical. No, not at all. It is
a critical aspect of theConvention, and highly relevant.
No, I am sure that we will doanother Podcast Episode on this
and other subjects, Delcy. Iappreciate you joining me.

Delcy Lagones De Anglim (43:06):
Well, thanks again, Susan, really, and
congratulations on this one.
Thank you.

Susan Andrews (43:11):
Thank you, see you soon.

Outro (43:13):
Thank you for sharing this time listening to the
Andrews Dispute ResolutionPodcast. And, remember to
positively and proactivelychoose good faith and good work
as your something. Remember torealize that a peaceful place in
you.