The International Evolution of Mediation

pepp-10-logo-eduPepperdine University School of Law’s Tom Stipanowich and Karinya Verghese have recently published a well researched article exposing fascinating regional differences in mediation practice which include regional divergence such as the relative use or non-use of joint sessions; how mediators handle information received from parties in caucus and mediator evaluation and opinion giving.

The article is a revised and expanded version of lectures delivered by Tom as the New Zealand Law Foundation’s International Dispute Resolution Visiting Scholar. The full text is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457

Long Tail Mediation

long-tailAsk any busy commercial mediator at the sharp end of practice and they will probably tell you that compared to 5 years ago many more commercial disputes are settling after, rather than at, the face to face phase of the mediation.

This has prompted an interesting ‘it’s a process, not an event’ discussion in mediation circles in many jurisdictions. See for instance what will be a fascinating session; An Evolution of Commercial Mediation in New Zealand? presented by my colleague and one of NZ’s most experienced mediation counsel, Hayden Wilson at LEADR’s ‘kon gres 2015 in Auckland on 10 & 11 September

But what interests me are the after care skills mediators are developing as a result. Whereas once we closed and billed the file at the end of a long mediation day, mediators now have ongoing case loads and may live with anywhere up to ten active matters at any one time.

So, what are mediators doing differently to cope with this development – anything? Are they actually managing to close off table? How are they doing it? What are the expectations of legal advisers and parties? What are counsel doing in this environment? Are they proactive, chasing up each other or the mediator after mediation day? Do they let the dust settle before having a post f2f session with the client? Or do counsel prefer a light touch, leaving the mediator to make the running?

Well, anecdotally we know that email and telephone play a big role. We also know that it is rare for the participants to get back together after an inconclusive day and the mediator will normally be expected to work remotely to close the gap. The mediator will normally close such a day with some sort of go forward plan, even if it is simply ‘it’s been a long day and we still have a sizeable gap but how about if I ring counsel in a day or two to see how you and your clients have pulled up?’ (aka, reflect on today and think about where we will go next). Others attempt something more formal – and get the parties to focus on a timetable and any upcoming obstacles that are likely to come into play.

The risk of course is that positions harden after the f2f – but generally, I find only if there is an event (‘that’s it, they had their chance, we’re off to court’) mentality rather than an ‘okay, that was an important session but there is more process to come’ kind of approach or if the parties’ focus has shifted from their own best interests to the conflict itself.

We at Brick Court would be very interested in counsel’s views on this…. please email with any comment on geoff.sharp@cliftonchambers.co.nz

My thanks to my colleague Andrew Hildebrand for his thoughtful input into this post

Mediation Essentials #3

It seems to me that many great mediation advocates share the same traits;

They

  1. are good openers – presenting an accessible narrative, not a rehearsal of the pleadings
  2. shine in joint session – by relishing an unscripted case analysis
  3. listen and question (far more than just to rebut)
  4. are brave –  they take positions and make concessions elegantly
  5. are holistic advisers – they recognise all the moving parts necessary for a client’s resolution
  6. do the money well – they are strategic (often positional) bargainers when it comes to the money

David Richbell’s Tour de Force

41uSVELxDKL__SY344_BO1,204,203,200_As I sat opposite David Richbell in an airy Fleet Street coffee shop this week, meeting for the first time, we talked about anything but mediation. Sports mainly – rugby (he already had the World Cup fixtures written in spidery scrawl in his pocket diary), football (patiently explaining the UK transfer system to this NZ imbecile) and boxing (David’s son, Ollie, did a bit of legal work in that most misunderstood of sports).

Eventually, we ended by talking sports and mediation with me attempting to establish my crossover credentials by regaling him with tales of elite sports disputes that I had mediated.

David then fished inside his bag and bought out a bright green, 561 page brick of knowledge complete with CD. This delightful book, with contributions from the great and the good of the Euro mediation scene including four Brick Court mediators, has a poetic vibe to it starting with its three structural parts (really three books within a book); Moulding, Maturing and Mastering, effectively tracking the life stages of a mediator, much as one would a butterfly.

My favourite chapter Trust, Truth, Love and Forgiveness (or rather Greed, Lies, Hatred and Revenge) has nuggets like ‘broken trust is offensive, it is a personal affront and creates a lot of hurt’ and ‘my belief is that if you love, you have to forgive. It is built in… not being able to forgive can blight a life forever’

A particularly brave piece arises out of David’s growing concern that familiarity breeds mediocrity and his uncomfortableness with his own comfort at slipping into the familiar mediation groove.

The chapter From Mastery to Incompetence is an essential read for any seasoned mediator who secretly worries the fire in their belly does not burn as brightly as it once did.

As John Sturrock says, ‘put simply, it is a masterpiece’.

For more information, including a Table of Contents, go here

BIT’s and BAT’s

Rainbow Warrior in Auckland Harbour after bombing by French secret service agents.Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP, was in New Zealand this week as part of his appointment as the Inaugural Senior Visiting Research Fellow at Victoria University Law Faculty’s New Zealand Centre for International Economic Law.

His visit marked the 30 year anniversary of the Rainbow Warrior case that shook a nation (those of us old enough to remember will recall the case of two French secret agents who blew up a Greenpeace ship in Auckland harbour). Mr Born acted as counsel for Greenpeace.

In addition, I was lucky enough to catch Gary speaking on his most recent initiative around a Bilateral Arbitration Treaty Regime, that aims to provide a default arbitration mechanism for the resolution of defined international commercial disputes.

The mechanism (fondly known as a BAT) would utilize the UNCITRAL Arbitration Rules, providing a means of resolving commercial disputes when nationals from contracting states had not agreed upon an alternative means of dispute resolution. Awards would be subject to recognition in the contracting states under the New York Convention and, subject to additional arrangements, in all New York Convention contracting states.

And the connection with mediation?

Bilateral Investment Treaty (BIT) investor-state dispute settlement (ISDS) relies heavily on arbitration and traditionally mediation has not figured. But, there is a feeling that this is changing since the International Bar Association published its Rules for Investor State Mediation in late 2012 – much has been written in the past year or so on whether investor state-mediation really is one of the last great unexplored tracts of the mediation landscape.

Gary’s initiative takes this one step further and all power to him – the challenge for those of us in the international mediation community is to find how the mediation process can be included in these regimes to add value to both BITs and BATs.

More to come on this topic … and special thanks to Dr Petra Butler who was instrumental in Gary’s visit to NZ.

Further information;

A draft Model BAT can be seen here. A commentary on the Model BAT’s provisions can be got from here. Further details about the Model BAT and its rationale can be found in an article here