John Cooper - Jones Day - How to make mediation more effective?

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How to make mediation more

effective

John Cooper

Partner

Jones Day

10 November 2015

How to make mediation more

effective?

• Mediation is one of the most effective forms

of ADR

• Mediation is incredibly flexible

• Mediation is most effective when it is

designed for the relevant dispute

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MEDIATION IS ONE OF THE

MOST EFFECTIVE FORMS OF

ADR

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Mediation is one of the most

effective forms of ADR

• What is mediation?

• Mediation is a structured negotiation

process in which an independent person,

known as a mediator, assists the parties

to identify and assess options and

negotiate an agreement to resolve their

dispute.

(http://www.fedcourt.gov.au/casemanage

ment-services/ADR/mediation)4

Mediation is one of the most

effective forms of ADR

• What is mediation?

• It is consensual

• It can be as informal as the parties and

mediator wish

• It can be used at anytime in a dispute

• It can co-exist with other forms of ADR

and formal proceedings

• It can involve many parties5

Mediation is one of the most

effective forms of ADR

• What is mediation?

• It is relatively inexpensive

• It can be quick

• It is without prejudice

• It is usually confidential

• It involves little supervision by

administering bodies and usually no

supervision by the Courts6

Mediation is one of the most

effective forms of ADR

• It is suitable for most cases

• It is most suitable where:

• The parties have a desire to resolve their dispute

• The representatives have authority to resolve their

dispute

• The parties have a need or desire to maintain or

improve their relationship

• Non-monetary solutions might be appropriate

• A negotiated outcome will be more favourable to the

parties than a decision of a Judge or an arbitral panel

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Mediation is one of the most

effective forms of ADR

• Under the ICC ADR Rules, which were in force

until 31 December 2012 and have been replaced

by the ICC Mediation Rules since 1 January 2014,

the Centre administered mediations and other

amicable dispute resolution proceedings involving

parties from over 70 nationalities

(http://www.iccwbo.org/Products-

andServices/ArbitrationandADR/Mediation/Introd

uction/Mediatio-and-ADR-statistics/)

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Mediation is one of the most

effective forms of ADR

• Settlement rate: 74% if file is transferred to mediator, over

80% if first meeting with mediator is held

• Duration: less than 4 months upon transfer of the file to

the mediator

• Costs: In average around less than 1% of the amount in

dispute

• Amount in dispute: range from below US$ 20 000 to well

above US$ 500 million.

(http://www.iccwbo.org/Products-

andServices/ArbitrationandADR/Mediation/Introduction/

Mediation-and-ADR-statistics/)

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MEDIATION IS

INCREDIBLY FLEXIBLE

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Mediation is incredibly

flexible

• It is consensual

• It can involve many parties and one or

more mediators

• The process is as determined by the

parties and the mediator

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Mediation is incredibly

flexible

• A typical mediation involves

• Agreeing to mediate (either in the project contract or

subsequently)

• Selecting a mediator

• Entering into a mediation agreement

• A preliminary conference

• Exchange of papers

• The mediation conference

• A settlement agreement, adjournment or termination

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Mediation is incredibly

flexible

• Some accepted norms:

• It is confidential and without prejudice

• Documents created and things said cannot be

used in litigation

• The mediator will not express opinions

• The mediator will focus on areas of agreement

and build on them

• The representatives must have authority to

settle13

Mediation is incredibly

flexible

• Busting or at least testing some myths:

• We will agree on a mediator after the notice of dispute

is issued

• Let’s mediate when all of the issues are known

• The role of the mediator is to facilitate and not to

express an opinion

• Lawyers should not speak at a mediation

• Every document produced is privileged

• Nothing can be used for any other purpose

• You must turn up with authority to settle14

MEDIATION IS MOST

EFFECTIVE WHEN IT IS

DESIGNED FOR THE

RELEVANT DISPUTE

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Mediation is most effective

when it is designed for the

relevant dispute

• The best traits of mediation are:

• It is flexible

• It is informal

• It is confidential

• It is without prejudice

• The application of privilege to documents created and

statements made

• It depends on agreement being reached

– That agreement can resolve all or some of the issues

in dispute16

Mediation is most effective

when it is designed for the

relevant dispute

• Why do some mediations fail?

• The representatives have entrenched views or vested

interests

• The mediator tries to push the parties to a mid-point

• The mediator does not express an opinion

• There is too much focus on where the parties are apart

rather than what they agree upon and can easily agree

upon

• Expert evidence is highly relevant to the dispute but is

not used in the mediation

• Not enough thought is given to the process17

Mediation is most effective

when it is designed for the

relevant dispute

• Use the flexibility:

• In the project documents:

– Agree that mediation will take place and

agree that it will take place early

– Agree upon a mediator (or a process that will

result in a mediator being appointed quickly)

– Agree on the terms of appointment of the

mediator

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Mediation is most effective

when it is designed for the

relevant dispute

• Use the flexibility:

• In the mediation itself:– Allow the parties along with the mediator to focus on a process

that is likely to resolve the dispute – spend considerable time

on designing the process

– Consider who will be involved – if possible avoid having as

decision makers those who “own” any part of the issues

– What papers and presentations are necessary?

– Why not have the parties outline what they agree upon and

what they disagree upon?

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Mediation is most effective

when it is designed for the

relevant dispute

• Use the flexibility:

• In the mediation itself:– Consider the role of the mediator – will an evaluation in

respect of some of the issues help? When should it be given?

– Consider the role of the parties’ experts – can they help narrow

the issues and how?

– Should the mediator sit with executives from the parties and

they all work together to arrive at a resolution?

– If there is no resolution achieved can an evaluation and further

mediation assist?

– If there is no resolution, is adjournment better than

termination?20

How to make mediation more

effective?

• Mediation is one of the most effective forms

of ADR

• Mediation is incredibly flexible

• Mediation is most effective when it is

designed for the relevant dispute

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