International Mediation

Reflections from Vienna via Florence on IBA-VIAC CDRC Competition 2018: “The Value of Active Listening in the Heat of the Moment. (When bringing a “taser” to a mediation can be a good idea.)

“How can I interject this question without interrupting?”

“This answer doesn’t satisfy me. How can I ask again without stalling the conversation?”

“I need to discuss privately with my client, but it is not appropriate to stop this joint session now.”

“Perhaps I would need something to… tase my client, so that he could remember to consider my opinion as well!”

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During mediation a lot of questions come to your mind, but it is usually not easy to get an answer quickly and keep track of the conversation. When you attend negotiation courses or you study the theory of mediation at home, it is fairly common to overlook the practical implications of such questions, but trust us, they are very relevant.

However, let’s start with some brief introductions first: we, the two writers of this hopefully interesting article, are Elisa Menichini and Emanuele De Napoli, two law students from the University of Florence, Italy. Together with two other students (Francesco Lichen Wang and Marzia Montinari), we were part of the only italian negotiator team at the 4th IBA-VIAC CDRC Mediation and Negotiation Competition in Vienna this July. We were coached by the experienced Professor Paola Lucarelli.
Florence Team
The CDRC Competition was a very formative experience, a melting pot of creative law students from all over the world ready to compete and learn under the guidance of legal experts and professionals willing to share their expertise and ideas. Mediation is a rather recent Dispute Resolution method in Italy (2010) and we, as future legal practitioners, felt that this competition was the right opportunity to grow both personally and professionally.

During the many rounds, carefully and masterfully directed by Claudia Winkler and the CDRC Staff, 33 teams of negotiators and mediators proved their skills in mock disputes based on the 2018 Willem C. Vis International Commercial Arbitration Moot Problem.

There would be so much to describe and write about the competition itself, the wonderful staff and the friendships that were born this year in Vienna, but we will concentrate on a specific event that we truly believe captures one of the key aspects of mediation and conflict in general. Something that we all need to remember.

During one of the rounds we were facing the Istanbul ŞEHİR University, while the mediator was coming from Maharastra National Law University in Mumbay. The negotiation process was lively and dynamic since the beginning. Our team was divided as such: Elisa = Legal Counsel; Emanuele = Client. Bargaining techniques were followed by quick responses, numbers were soon flying across the table and the two opposing clients were dragged into the heat of the negotiation. The trusty legal counsel (Elisa) tried more than once to calm and reassure her competitive client (Emanuele), but he was too focused on his business goal to be “stopped” by his lawyer.

The agitated legal counsel even tried touching her client, but he would just uncounsciously move away. Even trying to hit his legs wouldn’t work, since he was conveniently keeping them under the other side of the table. The now fuming lawyer wrote down on her papers in capital letters “NO”, as a concise but effective way to express her disapproval of a certain proposal. Not even this last resort seemed to restabilish the connection between the two. The businessmen were at work and they didn’t want to be bothered!
Im-not-Listening
Eventually a break was called and we were able to breath, relax and get back into our two combative characters after having shared briefly our ideas and views. The rest of the session went smoothly.

Once the round was finished and the feedbacks by the expert assessors had already been given, we had the opportunity to receive further insights from the judges. When we told this “comic” situation to Thomas P. Valenti, one of the experts who offered us precious suggestions and tips, he recommended (as an obvious but very clever joke) an innovative technique to force active listening and to calm down for a while an overachieving client: using a taser. When caresses, stares and kicks in the legs fail, go harder and use a taser.

Even if it was only meant as a joke, it truly made us think of the value of mediation, active listening and teamwork. During this competition as well as during similar events that we took part in, we noticed how conflict can be like a tornado, drawing the parties into the fight and making them lose sight of their true interests, even if they’re well-prepared. The legal counsels might feel that they need to manage their clients and sometimes thwart their emotions. But the role of the legal expert is changing and a lawyer should be able to understand and compensate for his clients’s whim as well.

That’s exactly why you need mediation, why you need a third party that can redirect you to the right path. The legal counsel should be the “trusty companion” that can grant a proper reality check when necessary and the needed aid when in doubt.

In conclusion, mediation can be considered a “metaphorical taser”: a ground-breaking method among the dispute resolution procedures. It shakes the way we perceive conflict in nowaday society, it changes the rules. The CDRC Vienna Competition was the perfect context to see how effective mediation can be.

We, as young students and future professional, are active witnesses of an epochal change in the way people face conflict: an opportunity instead of a danger to be avoided at all costs.

And if sometimes we’ll need to be “tased” to achieve this results, so be it.

By Emanuele De Napoli and Elisa Menichini,
University of Florence (School of Law),
Italy.

Turkish Experimentation on Mandatory Employment Mediation: Mediating with Pro Se Complainants

Guest Author: Gizem (Gigi) Halis Kasap, LL.M.

Gigi is a member of the Istanbul Bar Association and currently an SJD candidate at WFU Law School in North Carolina.

Gizem Gigi Halis Kasap

Imagine yourself as a Turkish mediator in an employment dispute. You have a pro se complainant who worked for a company for six years, being forced to work overtime and fired with no explanation, and an employer’s counsel in a joint caucus. In his opening statement, the employer’s counsel recites the facts and relevant case law for a considerable amount of time while the pro se complainant tries to apprehend all the fancy legal words that the counsel uses. The first separate caucus with the complainant reveals that the complainant did not understand what the counsel said and do not know what to seek in damages and decides to agree what the counselor offers because he is in immediate need of money.

Here the conundrum is. As a mediator, you are aware of the ethical rules and the fact that you have to be impartial. In the meantime, you also know that all doubts in the implementation and interpretation of the provisions of the Turkish Labor Law, including its implementing rules and regulations, shall be resolved in favor of labor, so adjudication before a judge might have resulted differently for the complainant. Considering all of these, does that mean that a Turkish mediator may not facilitate justice, or in other words, is mediation at odds with the basics of Turkish employment law?

Voluntary mediation was introduced into Turkish law with the Law on Mediation in Civil Disputes in 2012.1 Five years after, pre-litigation mandatory mediation for certain employment disputes was adopted with the Law on Labor Courts.2 As of January 1, 2018, parties must have attempted mediation before commencing the trial.3 To that extent, for the first time, disputes regards the indemnity claims and reemployment have become subject to pre-litigation mediation.4

Mandatory mediation in employment disputes has been harshly criticized by many commentators, unions and lawyers on the grounds that mandatory employment mediation is not fair because of the imbalanced power dynamics, especially where the employee cannot afford a legal counsel.5

If we look at our hypothesis again, what should a Turkish mediator able to do? Under Art.3 of the Turkish Ethics Rules of Mediators, a mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.6 That being said, Art.5(8) of the Ethics Rules stipulates that “[i]f a party appears to have difficulty comprehending the process, issues or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.”7

Reading these two articles together, we can conclude that procedural fairness and party competency as imperative as the impartiality of the mediator. Thus, a mediator is entitled to take the liberty of making “potential accommodations, modifications or adjustments”. To provide this, mediator, for example, questions whether the complainant fully understands the mediation process, paraphrases the statements and asks the employee again, or if it is necessary, he or she postpones the session, withdrawing from or terminating the mediation.8 In addition to these ethical requirements, the Ethics Rules also ensures the self-determination and informed consent of the parties.9 Thus, it is of significance to distinguish that mediation as an alternative to litigation is not against the notion of justice and fairness per se.

There could be, however, possible failures of court-annexed mediation 8 cast doubt upon the fairness, especially where pro se complainants are involved. In Wright v. Brockett, where the pro se tenant agreed to vacate the apartment as a part of the settlement agreement, the court set aside the agreement noting that the settlement agreement was not “a provident decision by the tenant, free of coercion.”10 Similarly, the Ninth Civil Circuit of the Turkish Court of Cassation set aside the settlement agreement where the mediator did not communicate with or question the employee at all and forced him to sign the settlement agreement without seeking for an informed consent.11 Although the pro se complainants in both cases were successful in challenging their settlement agreements, that might not be always the case.

Nonetheless, risks associated with mediating with pro se complainants can be outweighed by integrating certain methods into the mediation process. Some commentators have offered implementation of a “cooling-off” period which allows parties to withdraw from the settlement agreement for any reason.12
(more…)

A week of ADR events in Sao Paolo, Brazil

Monday started with a radio interview highlighting the events of the upcoming Mediation Congress in Sao Paolo. Alexander Palermo Simoes and I were featured on Ana Pretel’s weekly radio show covering interesting legal topics. You can listen to the show here:

From there we paid a visit to The IV Pan American Arbitration Congress, hosted by CAM-CCBC on 23 to 24 October 2017 in Sao Paulo saw close to 500 attendees listen and participate in a broad range of panels dealing the unique problems associated with arbitration in the region. While focusing on Pan-American countries, the event draws global participation and showcases comparisons of practices with an eye toward sharing best practices in international arbitration. CAM_CCBC, under the leadership of Carlos Forbes, as organizer of the event has demonstrated a commitment to improving the quality of arbitration services,
and making Sao, Paolo Brazil, a hub for international arbitration in South America and the region. aFOTO-MARCOS-MESQUITA--45

Immediately following the Pan American Congress, on October 25th, was the first ever International Mediation Congress in Brazil — Congresso Internacional de Mediação Empresarial – GEMEP I CBAr held at AASP – Associação dos Advogados de São Paulo. The organizing committee – Alexandre P. Simões, Claudia Frankel Grosman and Patricia Freitas Fuoco created a sold out event of stellar debates, workshops and networking events that highlighted the growth of mediation in Brazil under the 2015 law.22815150_10155027876923443_5943122743707166741_n

The following days were highlighted by the “VIII Competição Brasileira de Arbitragem e Mediação Empresarial da CAMARB” – a mediation and arbitration competition in partnership with Mackenzie Presbyterian University. Participation by 57 arbitration teams, 18 mediation teams, 80 assessors, 250 arbitrators and approximately 400 listeners resulted in the biggest event of its kind in Latin America! 22886002_1944929519165165_4585326340301035114_n

Here is a link to the CAMARB Competition website: LINK

Here is a link to a newspaper story “Brazil hosts greater arbitration and mediation competition in Latin America” describing the tournament : LINK

Book Review: STRUCTURED NEGOTIATION, A Winning Alternative to Lawsuits, Lainey Feingold, 2016

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Early in her legal career, Lainey Feingold was fired from a law firm. The day before she was scheduled to become a partner, the head of the firm told her she would never become a partner at the firm, stating “You lack grace and equanimity.” Feingold went from hearing those words turn her desired destiny upside down to letting them lead her to towards a career of practicing law with those and many other collaborative practices, detailed in Chapter 16. Her work has formed the basis of a methodology she and her practice colleagues coined “Structured Negotiation.”

In her book, Feingold introduces us to this alternative dispute resolution methodology, defined by one big firm lawyer as mediation without a mediator. The book is neatly organized into Seven Stages, from Stage One: Preparing a Structured Negotiation Case to Stage Seven: Post-Settlement Strategies, over 16 Chapters. It includes Templates and Sample documents, and details of several Stuctured Negotiations that Feingold and her practice colleagues ( primarily Linda Dardarian) handled over the past 20 years.

While many of the examples focus on Feingold’s advocacy for members of the blind community seeking access to ATMs, talking prescription labels, and baseball, the book has broad application to any practitioner who recognizes that certain types of claims, even very large ones, can provide opportunities for many disputants to be better served by the use of this process. While some claims need a Court system and the formal legal process, many do not. As Feingold puts it:

“But filing a complaint should not be the only option for claims resolution. The legal profession – and the public it serves- deserves alternatives that are less costly, less stressful, and more cooperative. Clients need a forum where thier stories matter and they can be ( and feel) heard.”

Whether you believe this or not, you should be aware of this alternative. Many think that those who represent big institutions are reluctant to participate in this out of court process. Yes, this is true. But Feingold has paved the way. She and her colleagues have spent years , patiently, working with many of the largest of these — Bank of America, Walgreens, Target, Safeway, TransUnion, Charles Schwab, others, and even Major League Baseball. And in her work, she provides information on all of these Structured Negotiations, so that you can use her success to contribute to yours.

If you take away nothing from this book, you will no doubt benefit from Chapter 16 which is invaluable. The legal profession is now undergoing a mindset change, where there is a real focus on “soft skills.” These are interpersonal skills, stress management, self confidence, mindfulness, optimism, the ability to convey empathy, and others.

Law students, lawyers young and old, law professors — read the book, but do not put it on the shelf until you have spent some time reading and self – reflecting on the collaborative tools that are discussed in Chapter 16.

You will be better at everything you do, if you can incorporate some of the Structured Negotiation collaborative practices into your life and your life’s work.

Buy the book on iBooks

Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent

Call for Participation by surveyindividuals who have experience with commercial dispute resolution.in a Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent
 
There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligation under an ADR agreement?” To answer this question, the research is divided into two stages, the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants with the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.
 
The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information. Accordingly, the information provided will only serve scientific purposes.
 
To complete the questionnaire, please click on the following link: http://lawsurv.ugent.be/limesurvey/index.php/678366?lang=en (closing date 29th of April 2017).
 
If you wish to provide the model/previously used dispute resolution clauses without completing the questionnaire, please email Maryam Salehijam at maryam.salehijam@ugent.be
 
Thank you for taking this request into consideration.

The Mediator as Village Elder : By David A. Hoffman with Danielle A. Reyes

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“For centuries, village elders have been the natural choice when people in conflict sought the services of a peacemaker.”

 Allow me to introduce you to two of my favorite mediators, though I have never met either of them.

The first is Sait Sanli, a butcher and cattle-rancher, who is a widely respected peacemaker in southeastern Turkey. Fifteen years ago, Mr. Sanli turned over his business interests to his eight children and now devotes most of his time, without pay, to resolving tribal conflicts, vendettas, and other high-stakes inter-family feuds. Many of these disputes extend over decades, claiming many lives. Mr. Sanli, who is 71 years old, barely 5-feet tall, and described by the Wall Street Journal (WSJ) as “energetic,” has resolved nearly a thousand conflicts of this kind. One newspaper reported that he had 67 families on his waiting list for mediation services. “One of his most complex cases,” according to the WSJ, “involved a land dispute that started with two shepherds five years ago and mushroomed into a full-blown tribal feud that claimed 11 lives. After a year of negotiations, in which he pleaded with tribal chiefs to rise above the tit-for-tat, Mr. Sanli held a peace ceremony . . . that included 1,500 participants.” What are Mr. Sanli’s methods? According to The Christian Science Monitor, “He cajoles, admonishes, and, occasionally threatens. When all else fails, he resorts to crying. The sight of tears rolling down a grown man’s face is apparently enough to soften even the most hardened heart.” In an interview with The Washington Times, Mr. Sanli said: “I kiss hands. I berate, I shout. Sometimes I cry. Above all, I listen to everybody involved, even the children.”

The second mediator is known to me only through a story told by Prof. Michelle LeBaron in her book Bridging Troubled Waters: Conflict Resolution from the Heart. She describes him as an elder from a First Nations community of Canada. This village elder paid a visit to a neighbor who had an extremely bothersome dog. That dog barked all night long, every night, kept the whole neighborhood awake. It was a really yappy dog, and nobody could stand it much longer. One afternoon, [the] elder went over to visit the dog owner without being announced. They had tea. Talked about the weather and upcoming powwow. They told a couple of stories. Then the elder left. Still, the dog barked at night. A few days later, the same elder dropped by for another visit. Same thing. They talked about the weather and brushfire down in the coulee. Then the elder left. Still, no relief. A day or two later, the elder visited again. They had tea. Talked about the weather, the way the government negotiations were going. And the elder left. After that, the dog was kept in every night. Never caused anybody trouble anymore.

What were this elder’s methods? He discerned that the key to resolving this conflict was protecting the dog owner from losing face. Thus, he made no mention of the dog to the dog owner, who, after the third visit, evidently figured out why he was getting these unannounced visits.

This elder’s methods differ dramatically from those of Mr. Sanli, whose bluntness and emotional appeals to the disputants are nevertheless equally effective. We can safely surmise that neither of these mediators has ever studied mediation theory or taken a 40-hour training course in mediation. They would probably find it puzzling – perhaps even a bit amusing – that mediators in our culture debate the question of whether mediation should be facilitative, evaluative, or transformative. Their success as mediators seems to stem from the respect and trust that they have earned as elders in their community, and from their personal qualities, which include compassion, patience, and discernment. They are problem-solvers who have developed mediation techniques that play to their personal strengths.

As I wrote in 1999 in an article called “Confessions of a Problem-Solving Mediator,” In days of yore, people came to village elders to discuss their disputes – not because the elders had the best process skills but because they had experience and, hopefully, good judgment. . . . The elders’ judgment and discernment were what led the parties to trust them with a role in resolving their dispute. Sibel Utku Bila, writing in the Turkish newspaper Hurriyet Daily News, offered the following observations about Mr. Sanli: “The clout he enjoys that forces people to reconcile . . . stems from the respect he enjoys as a wise and just person. His ability to ignore insults by the belligerent and deal patiently with the stubborn is also an indispensable asset.”

For centuries, village elders have been the natural choice when people in conflict sought the services of a peacemaker. For example, in China there is “a long history of semi-formal community-based mediation wherein local elders and respected persons would act as mediators in interpersonal disputes.” Among the Nuer people of southern Sudan, the “leopard-skin chief” – a religious figure who has no formal power – mediates blood feuds and other conflicts. In Hawaii, the traditional dispute resolution process known as Ho’oponopono is often led by a respected elder who knows the parties well.

Today, in the United States and elsewhere in the modern world, people turn to professional mediators to play that role. If we wish to emulate the success of those village elders, we have a lot to learn – and perhaps the most valuable lessons cannot be found in any text. When I teach mediation, I have noticed that some of the most effective lessons – for both the students and for me – come from bringing in guest mediators and watching them mediate. Video recordings of experienced mediators are similarly beneficial. Direct observation instructs more powerfully, and in a far more nuanced way, than any lecture. What the students are learning from these experiences is the variety of relational styles that effective mediators use. The best mediators adapt their distinctive style to the situation and to the people they are working with, but the core of their style is a constant, because it reflects the personality and character of the mediator. Some mediators are gruff, some analytical, some chatty, and others highly empathic. No matter – each of these personality styles can be effective. What seems to matter most is the mediator’s authenticity, integrity, commitment, and connectedness.

Mr. Sanli and the First Nations elder described above seem to possess these qualities. But what about the fact that “village” life is a thing of the past in most of the modern world? And what about the fact that today’s mediators are seeking to find work well before they become “elders?” When I started out as a mediator, I realized that my lack of gray hair (of which I now have plenty) was an occupational handicap. I tried to make up for it by studying the facts of each case assiduously and trying to bring an abundance of curiosity and compassion to the mediation. I hoped that earnest engagement on my part would compensate for my lack of seniority. I realized then, and still believe, that it often takes extra effort for a younger mediator to earn the trust and respect of the parties, particular the older ones, because there is an understandable bias on their part in favor of mediators who have more life experience.

Think of your mediation as a marathon, with the race beginning with a long steep climb – ironically, it’s the older mediators who can climb that slope more briskly. But, people of all ages run marathons and make it to the finish line. The discernment that effective mediators bring to the table is within everyone’s reach, if we are fully present and paying full attention to the parties.

And as for the village, we as mediators can compensate for the fragmented quality of modern life by looking for points of human connection with all of the parties who come to us for help. But there is an even better answer than this – namely, dramatically expanding the availability of mediation training. Even in our fragmented society, there are “villages” in the form of religious congregations, community organizations, neighborhoods, school-based organizations, and even some workplaces where conflict resolution can be practiced at the local level. These are the places where the next generations of “village elder” mediators can be found. Expanding the ranks of mediators in this way will add to the racial, ethnic, and class diversity of the mediation field, and will broaden the availability of mediation in communities where it is now barely known.

Growing the ranks of “indigenous” mediators throughout our society will not obviate the need for professional mediators to resolve complex business, employment, environmental, and family cases. But perhaps peacemaking is too important to leave solely in the hands of professionals?

David A. Hoffman is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC. He teaches courses on Mediation and Collaborative Law at Harvard Law School and is a past-president of New England ACR.

Danielle A. Reyes is an Intern at Boston Law Collaborative, LLC and a student at Boston College Law School. She was previously Mediator Program Coordinator at the Los Angeles County Bar Association’s Center for Civic Mediation from 2010 to 2014.

http://www.BostonLawCollaborative.com

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