A mediation tale of two cities – from theory to the practice

By Ben Thomson, former participant of the ICC Mediation Competition with Maastricht University and intern with CEDR

I was fortunate enough to compete in the 2015 ICC Mediation Competition in Paris representing Maastricht University, Netherlands. Focusing purely on mediation, a major strand of Alternative Dispute Resolution, Paris does not fit the mould of a traditional law student competition, but remains an enormously rewarding experience.

2015 was the second time Maastricht competed in this competition so we were not completely in the dark as to what to expect, but along with numerous universities from around the world, we were eager to learn more of this relatively new and innovative field.

It was at the Paris competition that I first encountered CEDR (the Centre for Effective Dispute Resolution), one of the sponsors. Sparked by a keen interest in mediation, I applied for an internship at CEDR and worked with them over the summer in London as a Corporate Communications intern.

Those familiar with mediation will espouse its value as being: chiefly client-focused, time and cost effective and offering a platform for creative settlement. However, do these taglines match the reality? As a law student of three years, you become aware of, on the one hand, the academic parameters of the law and on the other, the factual reality of legal practice. The internship with CEDR has allowed me to explore these mediation taglines, comparing academic understanding and reality.

 

What clients want

One of the projects I was involved with was creating case studies from past mediations. As part of this process, I examined numerous mediator and observer reports, from primarily settled but also on-going mediation which illustrate in detail the process’s value. It is evident the clients, not their legal representatives, dictate proceedings. Mediators, while respectful of the important role lawyers’ play, especially during the drafting of the settlement agreement, are equally keen to avoid proceedings stagnated by protracted legal discussion that often serve only to entrench parties, moving them away from negotiation and co-operation. When the mediation focuses on the interests and needs of the clients, tremendous results are achieved.

I was appointed by CEDR as an observer for a mediation over the implementation of business software (with a claim under £125,000.00) and having the opportunity to watch the process unfold was invaluable. Observing an experienced, confident and facilitative mediator, with a subtle, guiding hand, bring the parties together on a number of difficult issues has contributed most to my understanding and knowledge of mediation.

Furthermore, most mediations (particularly in the UK) last roughly 7 – 10 hours, a long day, but compared with potentially months or years of litigation, but a drop in the ocean. Achieving settlement, or progressing towards settlement in one day not only allows a business to move forward; re-focusing efforts on fruitful activities, it also saves a small fortune on legal fees and management costs. Mediation is sold as both swift and economical, the evidence for such is overwhelming and on these points there can be no dispute.

 

Being creative

Moreover, I have learned most about the flexibility of the process; the possibility for creative settlement. This aspect was ever-present during the ICC Mediation Competition. The successful teams were those who could look at a case and see more than the difficult negotiation of a financial settlement. Identifying other areas for compromise, co-operation and creativity were important in Paris as they are in actual mediations. I remember during one of my mediations, the mediator ventured an inspired solution involving the exchange of a printing press which appeased cash flows concerns of one party and secured financial remuneration for the other.

Looking beyond the black and white claim, unearthing other ways in which parties can come together is prevalent in mediation. In litigation, it’s often win or lose but a mediation, with an experience mediator at the helm can be win-win. One dispute I looked at recently between an international accountancy company and law firm saw the parties polarised on what each-other was willing to offer and accept. But, mediation enabled them to explore the option of collaborating on further projects upon the emergence of new clients, as part payment of the financial claim. Countless examples of this type of settlement exist and there are an abundance of other means to creatively conclude disputes, satisfying: bankruptcy concerns, loss of face, past emotional suffering and potential continued collaboration.

 

At the end of the day

Commercial mediation, it must be remembered, encompasses the interests of two or more businesses with disputes ranging from a few thousand pounds to ever-growing, chunky six figure claims, bursting at the seams. Participants in the ICC Competition must balance, in their mediations, the spirit of co-operation and the commercial interests of the companies they represent. Achieving settlement is one thing, but if it is done by wiping vast sums off a financial claim, you may have dug your own grave with your Board of Directors, “business always comes first”.

 

 

 

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