“One of the main differences I can make is to understand the cultural divide, mediation is one of the best ways to do that. Through mediation I have discovered a life calling to the extent that I am responsible, one arbitration and mediation, to develop plans as to how to bring these forms of dispute resolution mechanisms to the environmental arena.”
Reconnecting with MBBI
Peter Corne was born in Australia but resides in China. He is a mediator, lawyer, peacemaker, and member of Mediators Beyond Borders International. He learned about MBBI through Ken Waldron from the growing regional group of MBB Oceania. Peter handles cases for the Shanghai Commercial Mediation Center and the Shanghai International Arbitration Center. However, a larger part of his practice has been environmental and clean technology. He stated, “I really want to be a climate change mediator and MBBI had a training for the first time ever at the 2019 Bali Congress. I am very excited that MBBI is growing and becoming more multidimensional, you have a lot of great people. Moreover, I am excited about the launch of the Oceania Regional Group. MBBI can create a pathway to spread the good word of mediation for all sorts of different conflicts moving forward.”
Finding a Niche in Mediation
As one of the only foreign lawyers with permanent residency in mainland China, he is one of the longest-serving expatriate lawyers in Shanghai, having worked there since early 1996, and formerly in Hong Kong and in Beijing. He has spent extended periods of time studying law and language in China and in Japan. When Peter was pursuing law school, Australia offered ADR as a subject. He said, “I really loved it because it was a lot more flexible and allowed one to work culture into solutions in a way that hard law did not allow. Thus, I wrote a lot of cross-cultural pieces on the topic of mediation.” However, his passion for mediation developed earlier than that. In fact, he went to high school as an exchange student in the countryside of Japan. One of the family members from his host family in Japan was actually a court mediator. Even though it was domestic civil mediation which was only relevant in Japan, he became very interested in the field.
He went on to get involved in several comparative studies between the West and East Asia including China. He said, “I then got the opportunity to go to China to do research on dispute resolution and ended up analysing the legal system rather than disputes.” In China, Peter experienced each of the periods of China’s legal development as a student and lawyer – the opening up of the ’80s, the joint venture wave in the ’90s, the M&A wave in the first decade of the millennium, and the restructuring wave that followed. He also has been a pioneer in the field of anti-trust in China.
In his job, he always interested in applying ADR principles to his practices but the only real opportunity came after 2012 because in China, the courts became overloaded. Thus, the Supreme People’s Court began initiatives that brought mediation into the court system. Different centers designated by the Supreme Court in China were established and invited him as the first foreign mediator. He stated, “since then, I have reconnected with mediation. I have been fortunate to work with all sorts of international initiatives including linking JAMS international, the biggest private mediation body in the U.S., with SCMC. These initiatives allowed me to get involved again.” He is a recipient of cross-border environmental dispute settlement training from Mediators Beyond Borders International. At a personal level, he stated, “all good mediators are active listeners so this helped me understand I could be a good mediator. I was excited about the fact that disputes did not have to be resolved in confrontational styles; there were other methods to help people maintain a relationship through a dispute.”
Adding a Chinese Lens
Peter is a cross culturalist specialist of Japan and China. He stated, “anything that relates to comparative culture and anything working across cultural issues is interesting for me.” In China, face issues are prevalent – these are emotionally based face issues and mediation is a great way to deal with that. He said, “it is a very satisfying process to bring the parties out of their positions and get them to focus on the issue and create pathways for them to step down from the position with dignity and find a way to continue the relationship, that is really what I like. The ultimate goal is to apply this to environmental and climate change disputes particularly in China.”
As part of his education in Australia, he was always passionate about the environment. In 1981, when he lived in Japan, it country was still undergoing environmental issues. In fact, China went through what Japan experienced economically later at a much larger scale so the damage was much greater. He said, “since I came to China, I have been very much involved with environmental specialists, trying to bring clean technology to China in the context of projects and technology. I was doing that for years and worked with passionate inventors, scientists, people who were passionate about what they do. In fact, under the Kyoto protocol, a lot of projects were undertaken to help China to reduce carbon emissions. Now that I do meditation and arbitration, I also want to help resolve disputes in that area as well and have had the opportunity to do that. I am just trying to push that forward and help China create an environmental dispute system, which would be much better than merely relying on the court system.”
Peter has been active in business community based environmental and cleantech activities and is an active supporter of local community programs, such as the lunch box program for the elderly and childless at the Shanghai Jing’an Golden Key Community. Peter is also the author of one of the leading texts on the operation of the Chinese legal system which is used in law schools around the world: “Foreign Investment in China: the Administrative Legal System“ (Trans Juris Publishers and Hong Kong University Press, 1997), as well as numerous academic legal articles on China and Japan in leading law journals and books, such as “Creation and Application of Law in the PRC“ in the American Journal of Comparative Law.
Belt and Road Initiative
Peter highlighted that the key is to develop a very good mediation system around environmental disputes and secondly, deploying mediation in Belt Road Initiative (BRI) discussions. He stated, “a lot of the Chinese companies encountering cultural environmental problems lack an effective cross-cultural way of dealing with that. Due to the BRI, you have all of the problems of different cultures, languages, and legal systems so mediation is the best way to solve these disputes.” Overall, Peter’s passions are mediation and helping China to address its environmental issues. He has focused his efforts on cleantech since 2004, and he is now one of the only lawyers on the mainland that can claim to have primarily an environmental focus. He helps foreign cleantech companies structure their pathways into mainland China, and Chinese companies invest offshore into such projects.
Peter published an article in the Chinese Journal of Environmental Law about ecological civilization, which is the Chinese version of the SDGs, with a focus on why mediation is the best way to resolve disputes while respecting and observing the principles of eco-civilization. He said, “this is my philosophy. I want to see relationships maintained but I also want to have mediation and even arbitration so that the environment always occupies a chair at the mediation sessions. The Environment must always have a say and no dispute should ever be resolved without taking into account the impact of what the environment has to say.”
Areas that need further development
Peter stressed “mediators normally are open-minded. It is their job to open the minds of the participants. While mediation has not developed to the extent that it needs is in the international arena, arbitration has developed throughout the world and it can be implemented in the signatory countries. Therefore, arbitration became a convenient way to resolve and implement disputes. Many countries acceded to this convention, the New York Convention. Mediation never had an equivalent in the international arena, so you have a lack of international mediators. Moreover, mediation lacked a mechanism like that offered by the New York Convention whereby you can implement an agreement arising out of the mediation.”
Having said this, he pointed to the new Singapore Convention on Mediation, Signed by 54 countries, is still in the process of being ratified by most of the signatories but when this happens, the Singapore Convention will take mediation into the international arena big time. He said, “therefore, if you thought you would like to become an international mediator, now is the time.” When it comes to weaknesses in aspects of mediation, he stated that it is not so much about that mediators are lacking, but rather they have many have not had adequate experience in these multicultural and multilingual disputes. He said, “there is no go-to body from which one can draw a mediator. You know you have to rely on personal connections to try to identify a good mediator.” In fact, according to Peter, co-mediation is a model that has been initiated to deal with these mediation challenges that can address both the language and cultural aspects. He said, “knowing where to go to find these mediators is key. You have to wait for these dispute areas to become more visible and a lot of that comes from recognizing the value of mediation in such arenas.”
The future of mediation and technology
One of these arenas is technology. He said, “due to technology a lot of people are getting better at applying technology in different environments. We no longer have to be in one place to do this to the extent that people can recognize this is possible and are comfortable working with it. Of course, it is ideal for everyone to be in the same place but often this might not be possible due to the cost of travel, nature of dispute, visas, and schedule. So technology now can be applied and we are have started to apply it. In China, online mediation is now very popular.” Thus, international mediation will be able to spread beyond large disputes and deal also with small disputes because it will not be as costly to use anymore.
Article by Elizabeth Gamarra, MBBI Writer