Paul Eric Mason: Going International

Posted in Insights March 19, 2020

SIMC’s Meet the Mediator Series

SIMC International Mediator Paul Eric Mason* has travelled the world. He now shuttles between Miami and Rio de Janeiro, and in addition to serving as mediator and arbitrator on commercial cases, spends his time working with governments on signing the Singapore Convention on Mediation, writing articles on the Convention, international mediation and arbitration, and editing a book he created on International Commercial Arbitration (ICA), now in its 11th year of publication. The book has 55+ chapters written by prominent ICA authorities around the world, including two on Singapore. In this issue of Meet the Mediator, we catch up with Paul on how that’s been going.

I conducted my first mediation in the mid-1980s, as a lawyer in the Attorney General’s Office in Boston. We had a US$50M+ environmental dispute between eight multinational oil companies and a local community over responsibility for polluting local groundwater sources. I was asked to mediate this complex multi-party dispute. Fortunately, we arrived at a settlement, which encouraged me to look further into the potential for mediation.

SIMC: Tell us something about yourself.

Paul: I’ve spent most of my career as an in-house counsel for IT companies that have international business dealings around the world. Prior to that, I worked for a non-profit foundation committed to socio-economic development in South East Asia, and travelled there — including to Singapore—several times. I have also lived in Italy and Brazil for extended periods. These experiences have equipped me well for international mediations as both mediator and counsel, where understanding cultural nuances, negotiation, business and law, are all important.

On the personal side, I enjoy outdoor activities, sports, chess and travel as well as drawing portraits.

SIMC: What is your first brush with mediation?

Paul: I conducted my first mediation in the mid-1980s, as a lawyer in the Attorney General’s Office in Boston. We had a US$50M+ environmental dispute between eight multinational oil companies and a local community over responsibility for polluting local groundwater sources. I was asked to mediate this complex multi-party dispute. Fortunately, we arrived at a settlement, which encouraged me to look further into the potential for mediation.

Fast forward to the crises of today, I believe COVID-19 will result in many business disputes, which mediation can help resolve. 

I was invited to head an American Bar Association International Law Section project on UN mediation of regional conflicts. Our committee report was published in an international relations journal, with its recommendations adopted by the UN some years later. After studying mediation further, I was able to use my experience as international in-house counsel for some large IT companies and began mediating commercial cases, especially international ones. I have acted as mediator, counsel in mediation, President of an ADR institution offering mediation, and even a party myself, so I have experienced all sides and perspectives.

Mediation is indeed a full-time passion, though not a full-time activity. I also arbitrate and sometimes act as counsel. I prefer not to mediate a large volume of cases, but rather fewer cases with more concentration on all the facets of each one. 

SIMC: What’s been keeping you busy?

Paul: The Singapore Convention on Mediation. It’s one major area of my work. I was in Singapore last year to witness the signing of the Convention. Afterwards, I presented on the Convention to the American Arbitration Association in Miami and have written several articles on it. One of them is available on the IMI website, where I discuss the importance of the Convention for Brazil and why it is a vital instrument for Brazil’s international trade and business development.

Without the Convention, international mediated settlement agreements are treated as mere domestic contracts which are rarely enforceable across borders.

Without the Convention, international mediated settlement agreements are treated as mere domestic contracts which are rarely enforceable across borders. Even if they are in-principle enforceable as contracts, it may take a very long time for the local courts to hear the cases, and this is detrimental to business. For example, I once mediated a settlement for an agri-business dispute between a Russian importer of hundreds of tons of poultry and a U.S. shipper.. The perishable food items would have gone bad, resulting in huge financial losses, if one party had refused to comply with the terms of their  settlement agreement and it could not been enforced expeditiously. Another case involved a Brazilian food conglomerate and a Central American large-scale fruit grower. This one is still ongoing. But if they were to settle and one party refused to honor the settlement agreement, the other party would have  to go to court and wait for months or years for a court to execute its mediated settlement agreement as a mere foreign contract, rather than as an imperative, highly-prioritized international treaty obligation. In Brazil, this could take more than 10 years!

Analogously in the field of international arbitration, Brazil has benefited from ratifying the New York Convention in 2002; foreign trade and investment have grown significantly as a result, as foreign parties have confidence that they can rely on international arbitration as a viable alternative to domestic courts to resolve business disputes expeditiously.

Apart from Convention work, there are large-scale disputes to be mediated and arbitrated, in industries such as e-commerce, aviation, and art & cultural property.  

SIMC: What is one trend or issue that you see in the practice of mediation?

Paul: Having mediated for 30 years now, I have seen the same challenging issue arise over and over again – the so-called ‘entry problem’: How do you encourage or convince a reluctant party to agree to mediation when the other party has agreed to do so? In the international business context, I believe that ratification of the Convention by key countries will help with this issue.

(Editor’s note: Fiji, Qatar and Singapore have ratified the Convention, which will enter into force on 12 Sep 2020).

SIMC: Where is home for you? Tell us one feature about this jurisdiction that parties resolving disputes in this jurisdiction should take note of.  

Paul: I have two residences – Miami and a place in a mountainous area near Rio de Janeiro. In Miami, which is in the state of Florida, mediation is well-developed and an attempt at mediation is mandatory for all cases filed in the state or federal courts. In Brazil, formal mediation is relatively new with a Mediation Law enacted there only in 2015.  Brazil actually has over 100 million court cases!  The Mediation Law provides for so-called “judicial mediation” of cases, but the actual practice of this is not well-developed. It is usually preferable to arrange mediation with a private ADR institution (like the SIMC) instead.

SIMC: If one is mediating between Asian and Brazilian parties, what cultural sensitivities should one be aware of?

Paul: Asia is a very large and diverse territory. Over the years, I have visited and observed cultures and sub-cultures in China, India, Indonesia, Japan, Russia (including Siberia), Singapore, Thailand, the UAE, and Uzbekistan.  As a continent-sized country with a very diverse ethnic population, Brazil also has many regional sub-cultures. In terms of cultural sensitivities, there are questions of language (verbal and non-verbal), preferred methods of communication and negotiation, personal space, personal practices, etc.

SIMC: What major conflict – perhaps in your country’s history – was settled, or might have been resolved amicably? 

Paul: According to his biographers, the American President Theodore Roosevelt tried to mediate with European kings and leaders – many of whom he knew on a first-name basis – to try and prevent World War I.  

A portrait of Teddy Roosevelt, drawn by Paul E. Mason. Among his many noteworthy accomplishments, Roosevelt famously tried to mediate and prevent World War I.

Fast forward to the crises of today, I believe COVID-19 will result in many business disputes, which mediation can help resolve. Having arranged for and participated in the world’s very first international business mediation by video conference (VC) when I acted as counsel for a Brazilian client in 2006, I believe the use of VC facilities for mediation will become more important over time, and can be especially effective in this situation, to minimise travel risks, time and cost for parties.

*Paul Mason is an international counsel, arbitrator and mediator, and the first International Mediation Institute (IMI) – certified mediator in Brazil. He is also a Singapore International Mediation Institute (SIMI)-certified mediator. Paul has served as mediator, arbitrator and advocate in numerous international commercial disputes, many involving Brazilian parties. He was also involved in the Brazilian Senate Commission session drafting the Brazilian Mediation legislation. He is the former Director for Legal & Government Affairs/Latin America, Russia and Canada at Digital Equipment, Oracle, and 3Com. See www.paulemason.info for more details.

This is part of a series featuring SIMC’s international mediators.  SIMC is partnered with more than 70 mediators from close to 20 jurisdictions, enabling the centre to match parties with the best mediators for the matter.  For more information on mediating with SIMC, call or write to us.