Needs of Businesses Were Major Focus of Conference
The room was packed with interested attendees from many different backgrounds at the third annual ICC International Mediation Conference series entitled "Make Mediation Happen! Getting your commercial dispute to successful mediation,"which took place on 3 February 2012 at ICC's headquarters in Paris. Now a tradition, the annual conference series is organized by the ICC International Centre for ADR and provides a forum for business to speak to business about the strategic and economic benefits of mediation and its combination with other dispute resolution techniques. Demonstrating the growing interest in commercial mediation, the conference received the support of various partners, including the American Bar Association (ABA), Association of Corporate Counsel Europe (ACCE), Corporate Counsel International Arbitration Group (CCIAG), the International Institute for Conflict Prevention and Resolution (CPR), and the German Roundtable (a German conflict management organization that comprises 17 companies, incl. Siemens, Audi, Areva, Bayer and Deutsche Bahn). The conference, scheduled the day before the ICC International Commercial Mediation Competition, kicked off ICC's Mediation Week.
Panelists explored the challenges users and their counsel might face in initiating and conducting mediation proceedings and how best to confront them. Known for its interactive format, the conference involved presentations, lively discussion, mediation stories involving parties and mediators from past commercial disputes, as well as negotiation exercises that got everyone in the room moving and talking.Ute A. Joas Quinn, the Associate General Counsel at Shell International B.V. in the Netherlands, andTina Cicchetti, an Associate at Fasken Martineau in Canada, co-moderated the panels, ably directing the conversation throughout. Members of the ICC International Centre for ADR were also on hand during the conference to inform the audience about, among other things, the international character, value and success rate of ICC mediation cases, as well as the involvement of states and state entities in such cases.
How do companies implement an internal mediation policy?
"Are you always happy with arbitration?" askedCaroline Ming, International Legal Counsel and Project Manager at SGS SocieteGenerale de Surveillance SA in Switzerland. Ms. Ming, whose company relies on preserving long-term relationships in the face of stiff competition, stated that she and her colleagues always had mediation in mind when considering their strategy for different disputes, as it provides much-needed flexibility. Demonstrating its impact, she described a case where her company had the upper hand from a legal standpoint against one of its clients but nevertheless decided to settle in the client's favour to preserve and enable future business opportunities.
How to convince a counter-party to mediate?
In the subsequent panel,Deborah Masucci, Vice President of the Office of Dispute Resolution at Chartis (formerly AIG) in the US andKai-Uwe Karl, Senior Counsel - Litigation of GE Oil and Gas in Italy, discussed how to convince a counter-party to mediate. With regard to agreements to mediate at the contract negotiation stage, Mr. Karl stressed that this was often a difficult task, as parties do not usually discuss dispute resolution in any detail. Where agreement can be reached, Mr. Karl urged users to draft simple, uncomplicated clauses and encouraged them in most instances to refer to model clauses, such as the ICC ADR model clauses.
How to prepare for successful mediation proceedings?
Three different perspectives - those of in-house counsel, external counsel and the mediator - joined together to share their advice on preparing for a successful mediation.Kent Dreadon, Head of Legal at Telefonica UK Limited, stated that in-house preparation for mediation is different from that for adjudicatory proceedings, as it must focus on the parties' current and future business interests and identify possible leverage for negotiation. He indicated that in-house counsel also plays an enhanced role at the proceedings themselves and that external counsel were primarily useful in the preparation stages.Roberto Calabresi, Partner at SLCG in Italy, echoed those thoughts, claiming that external counsel are particularly useful for in-depth preparations of the case and especially risk assessment. External counsel may also help to protect the party's interests when negotiating a settlement, but are generally not involved in determining the appropriateness of various concessions.Michel Kallipetis, QC, a full-time mediator at Independent Mediators Ltd. in the UK, added that he often speaks first with the parties' counsel to gain their trust in the process. He emphasized that outside counsel have the duty to report to the mediator what their clients must absolutely have as part of their settlement deal. The mediator can therefore be sure to incorporate these aspects into the parties' discussions.
How to deal with fears about the risks of mediation?
The conference's last panel tackled some of the most common fears regarding mediation. The first is that mediation could be a loss of time and money. BothAlexander Oddy, a partner at Herbert Smith LLP in the UK, andAxel Boesch, a partner at Taylor Wessing in Hamburg, Germany, emphasized that mediation results in a settlement in most cases and saves the parties time and money. Moreover, they agreed that even where it fails, mediation can help the parties better understand and prepare their case for subsequent proceedings. The panelists also quickly dismissed fears about the lack of enforceability of settlement agreements, with Mr. Boesch claiming that the best deal for all sides is one that is party-made and that the likelihood of voluntary compliance is very high. Asked whether divulging information during the mediation posed a risk where such proceedings fail, Mr. Boesch responded that although parties can discover information that may be useful in building their case, as well as "soft" facts relating to the opposing side's strategy in future proceedings, such disclosure affects both sides equally. Mr. Oddy also pointed out that parties will always place a suitable filter on the information they use and divulge because proceedings are based on reciprocity and building trust. In that regard, fishing expeditions pose little risk as they will be evident, allowing the mediator and parties to take the necessary precautions.