September 2006
International mediation:
challenges for counsel
and mediators
Eileen Carroll
Lawyer
Deputy CEO, CEDR
Karl Mackie
Lawyer & Psychologist
CEO, CEDR
www.cedr.co.uk
An introduction to CEDR
15 September 2006
• 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
•
•
•
•
•
•
• 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
Confidentiality
Independent
Mediation agreement
Law of the mediation
Legal presentation
Disciplined process
structure
• Discipline of deadline
• Agreed binding 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 –
Clash and/or non- Step back to
expectations,
communication
appraise, clarify, recultural, personality,
assess
needs
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 Diplomacy
2nd 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
CEDR
International Dispute Resolution Centre
70 Fleet Street
London
EC4Y 1EU
Tel: +44 (0) 20 7536 6000
Fax: +44 (0) 20 7536 6001
www.cedr.co.uk
CEDR gratefully acknowledges the support of its members