international mediation: challenges for counsel and mediators september 2006 eileen carroll lawyer...
TRANSCRIPT
International mediation: challenges for counsel
and mediators
September 2006
Eileen CarrollLawyerDeputy CEO, CEDR
Karl MackieLawyer & PsychologistCEO, CEDR
www.cedr.co.uk
15 September 2006An introduction to CEDR
• Staff – 40
• Consultants – 60
• Case referrals – over 11,000
• Neutrals – over 130
• Delivered ADR Workshops in over 25
different countries
• Consultancy work in Croatia,Pakistan,
Russia, Slovakia etc
• Projects with EU, World Bank, NATO,
UNCITRAL
Cultural impact – the big picture
• People and culture vs globalisation ('flat
earth')
• Legal, corporate & economic systems
• Arbitration and litigation as alternatives
• Ethics and corporate governance
• Styles of decision-making and negotiation
• Language, beliefs, needs, identity
International/cross border challenges
• Getting information
• Getting to decision makers
• Presenting to right people
• Ideological and cultural diversity
• Risk of corruption
• Forum and timing costs
Recent trends in entry into mediation
• Multi-track approach
• Sophisticated lawyers
• Sophisticated decision makers
• Role of courts
• Contract and corporate policies
• OECD / World Bank / UNCITRAL
Why it works in international arena
• Structured agenda
• Commitment / engagement
• Balance of information
• Patience and skills of mediator
• Enlightened self interest
• Deadline injects reality
Case study: International infrastructure
• Finance agreement / New York
• Plant / Guatemala
• Warranties / Dutch suppliers
• Insurance / Guatemala / London
• Personnel / 40
Logistics - case study: Japanese / European
• Arbitration context
• Cultural mismatch
• Language
• Documentation
• Respect and honour vs commercial
drivers
The mediation - case study: Intellectual property: USA/European
• Identifying the issues
• Pre-mediation
negotiations
• Managing expectations
• Presentation impact
• Using the mediator
• Impasse
• Drafting and
enforcement
• Follow-up
Form & flexibility – the mediation framework
FORM
MEDIATION
FLEXIBILITY
• Confidentiality• Independent• Mediation agreement• Law of the mediation• Legal presentation• Disciplined process structure• Discipline of deadline• Agreed binding outcome
• Dynamic balance• Managed by neutral
• Executive participation• Commercial dialogue of common sense• Imaginative solutions• Financial analysis• Balance of risk and reward• Principal to principal contact• Case and business overview combined• Agreed workable outcome
The mediation framework
“There is in our work as mediators, when it is going well, a peculiarly American blend of learned structure and conventions, and improvisation strongly supported by talent and intuition. It is jazz: There are a few orthodoxies and a lot of ad hoc ensemble invention.”
(Howard Bellman,US Environmental/Labour Mediator)
Mediation as a ‘cultural’ bridge
NEGOTIATION DISPUTE MEDIATION BRIDGE
Mismatch – expectations, cultural, personality, needs
Clash and/or non-communication
Step back to appraise, clarify, re-assess
Organisation or lawyer aspiration gap
Adversarial positions
Reality-test, reassess options and commercial interests
Difficult conversations
Proactive conversations
Oil the wheels and re-engage gears/leveraged momentum
Mediation as a ‘cultural’ bridge – cont.
NEGOTIATION DISPUTE MEDIATION BRIDGE
Impasse Legal Action / Other Damage
Form & Flexibility – binding legal result or true insight
Immediate face-off, or distance
Hostile distance and agency
Given time, space & common platform to bridge gap
International Mediation – The Art of Diplomacy2nd Edition
“…first rate… the kind of groundwork publication that is necessary to the institutionalisation of mediation and other interest-based dispute resolution into professional and business cultures.”
Hans U. Stucki, Lawyer Chicago, USA
Centre for Effective Dispute Resolution
CEDRInternational Dispute Resolution Centre70 Fleet StreetLondonEC4Y 1EU
Tel: +44 (0) 20 7536 6000Fax: +44 (0) 20 7536 6001
www.cedr.co.uk
CEDR gratefully acknowledges the support of its members