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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until 31 December 2012 and have been replaced
by the ICC Mediation Rules since 1 January 2014,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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