Negotiation

Mediation Culture And The Next Generation

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A short insight into national education and development in mediation around the world from four former participants of IBA-VIAC CDRC – the Consensual Dispute Resolution Competition Vienna, representing Lebanon, Georgia, India and the UK.

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Posted by Jenny Driver, Jonathan Rodrigues, Karim Zein and Mariam Malidze in Access To Justice, ADR, Conciliation, Education, Mediation, Negotiation
The Third Edition Of The IBA – VIAC Consensual Dispute Resolution Competition

The Third Edition Of The IBA – VIAC Consensual Dispute Resolution Competition

Two years ago, the International Bar Association (IBA), the Vienna International Arbitral Centre (VIAC), and the European Law Students’ Association (ELSA) launched the first edition of the Consensual Dispute Resolution Competition (CDRC) Vienna. The inaugural success and the enthusiastic feedback and support for the competition’s new concept quickly caught international attention and led to a second edition in 2016. This past July, we witnessed the third edition of a path towards more consensus building in dispute resolution – and bringing it to the next generation:

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Posted by Pedro Pereira Gomes in Access To Justice, ADR, Education, Mediation, Negotiation

Global Citizenship…Global Pound…Mediation And Mediation Competitions

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This year I have been privileged to attend three wonderful international commercial mediation competitions, in which students from around the world come together with mediators and other professionals to practice negotiation in mediation and mediation itself, and to talk about best mediation practice. These are the International Chamber of Commerce International Commercial Mediation Competition in Paris, Lex Infinitum in Goa, and the Consensual Dispute Resolution Competition in Vienna. I have taken on different roles at these events, from coaching a team, to mediating with students, to judging students’ performances and giving feedback.

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Posted by Greg Bond in Access To Justice, ADR, Education, Mediation, Negotiation

The London GPC – Time For Change

marlon-maya-44935.jpgLast week’s London event marked the grand finale of the GPC Series, which has taken place on six continents and 29 cities since April 2016, collecting groundbreaking data on the behaviour and perceptions of stakeholders in dispute resolution across the globe. Taking place in the historical Guildhall building, built upon centuries of ‘dispute resolution’ above the Roman amphitheatre – where conflict was perhaps resolved in a more brutal way than today.

The event began with an introduction by online dispute resolution advocate Lord Justice Briggs, who has consistently pushed for technological reforms in the courts of England and Wales, especially in regards to resolving disputes. In addition Dr Andrew Parmley, Lord Mayor of London (Mayor of the City of London), gave a moving speech on London’s rich multicultural history – stating that London will remain a global city and an international hub for the legal community undeterred by Brexit.

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Posted by Natasha Mellersh in Access To Justice, ADR, Arbitration, Dispute Management, Education, LOC Coverage, Mediation, Negotiation, Technology

Effective Negotiation – Be Prepared

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By failing to prepare you are preparing to fail.  –Benjamin Franklin

The lesson of rigorous preparation has been taught throughout history.

In the 5th Century BC, Sun Tzu, in The Art of War, denounced lack of preparation as the most heinous of crimes, and celebrated good preparation as the greatest of virtues. In the 1st Century, Seneca defined luck as something that happens when preparation meets opportunity. Michelangelo grumbled that if people knew how hard he had to prepare to gain his mastery, it would not seem so wonderful at all. In Henry V, Act 4, Scene 3, Shakespeare has the King giving the most famous pep talk in history to his overwhelmed army as they prepared for the unlikely English victory at Agincourt in 1415, explaining that “all things are ready if our minds be so”.

President Lincoln is often credited with the remark that if he had eight hours to cut down a tree, he would spend the first six sharpening his ax, though the comment has more plausibly been traced to an Appalachian lumberjack in 1956. Napoleon admitted that it was not innate genius that suddenly and secretly enabled him to decide what he should do in unexpected circumstances, but thought and planning.

In 1946, the first President of the International Standards Organization, Howard Coonley, accurately predicted that business leaders would in future be rated on their ability to anticipate problems rather than to meet them as they come. A stream of legendary American Football coaches, among them Michigan’s Fielding Yost and Alabama’s Bear Bryant, have perpetuated the pre-game mantra that “the will to win is worthless without the will to prepare. And decorators the world over, when asked to name the ultimate secret behind a beautiful paint job, are certain to reply: “preparation, preparation, preparation.

This increasingly busy world leaves most of us with less, or even no, prep time. We suffer from task saturation. Normality, in this constant state of un-readiness, is forcing us to rely on assumptions, instinct, hearsay, gossip and guesswork to get through the day. Negotiators who claim an intricate familiarity with the industry, subject matter or past experience, will often use this knowledge to compensate for a thoughtful and thorough analysis of the esoteric situation at hand. They may be deluding themselves.

Avoiding embarrassment

I learned the importance of preparation through embarrassment. Almost 45 years ago, about three months into my job as a junior counsel with Gillette, the GC decided I should gain familiarity with the business. One assignment was to spend a few days with a wholesaler’s sales manager visiting retail stores. We went from one to another, discussing planned stock levels for different products, point-of-sale materials, upcoming advertising campaigns and credit terms.

On the afternoon of the second day, the sales manager suggested that as I had now witnessed how things are done, I should take the lead with the last customer on our visit list. It was a local chain of convenience stores and our appointment was with the owner in person. The sales manager had given 120 days credit terms for a limited period to help the stores through a difficult time, but now wanted to bring this down to 60 days. He asked me to take the lead. I had a weak grasp of the customer’s sales levels of our products, no real understanding of their business model and did not spare a thought for their situation. I should have asked the sales manager these questions as we traveled to the meeting. But in the over-confidence of youth, I thought I could do it spontaneously, as the sales manager had appeared to do with the previous customers.

It turned into a humiliating experience. The owner of the stores, who thought I was a management trainee, took full advantage of the rookie that I was, agreeing to tighter credit but in return proposing new terms that sounded perfectly reasonable to me, including additional volume discounts. The new terms would have undone years of painstaking negotiations by the sales manager and his team. He took over from me, and wrapped up the discussion. I still fairly accurately recall the severe lecture he gave me in the car afterwards: “I threw you in deep because I expected you to fail and I was there to rescue the situation. In whatever you do, figure out your goals and stick to them, do not underestimate anyone, know more about them than they do about you, never assume, listen carefully, be patient, and leave a good feeling, as you may return“. 

Available tools

Fortunately, there is much we can do using available tools to reduce the time and effort needed for effective negotiation prep work, though all these tools demand discipline, initiative and care. Most of these time and energy savers can be adopted by anyone facing the prospect of any form of negotiation. With the right e-tools, you really can prepare on the fly.

To be their most effective, negotiators need to cover a lot of territory:

  • be perceived appropriately by the other party;
  • understand as much as possible about those you deal with;
  • have the best possible information you can get;
  • know your real leverage and focus on the other party’s;
  • think carefully about where the other side is coming from;
  • distinguish between what they want and what they need;
  • separate fact from fiction, and fairness from unreasonableness;
  • know when to talk and when to walk;
  • bring your own side along with you;
  • know where best to turn for support;
  • be skilled in listening, questioning and deep exploration;
  • focus and do not let yourself be distracted; and
  • generally be psyched up for the task.

Written by Michael Leathes.

This is an extract from his book ‘Negotiation: Things corporate counsel need to know but were not taught’ (page 11-13).

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Michael Leathes spent his career as a corporate counsel with Gillette, Pfizer, International Distillers & Vintners and BAT based variously in Brussels, New York and London. His pro bono duties included board memberships of CPR Institute (2003-2006) and the International Mediation Institute (2007-2015).

Posted by Michael Leathes in Negotiation
CDRC Vienna – A Year On

CDRC Vienna – A Year On

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One year has already passed since my journey at the IBA-VIAC Consensual Dispute Resolution Competition (CDRC), held in Vienna. It was a year of exciting opportunities, hard choices and fulfillments, some of which – heavily influenced and marked by my CDRC experience.

Twelve months after this occasion ou jamais, in my hometown of Pleven, Bulgaria and with the merriest of memories, I am assembling different pieces from former articles in a single composition of suggestions and tips for all those lucky devils out there who have yet to experience the magic of CDRC. Enjoy!

Negotiation techniques you may find useful:

  1. You ought to be conscious of the reality that almost every fellow CDRC competitor will know the problem by heart, shall successfully push forward their agenda and manage the negotiation process with ease. What you may need to do (especially in the shoes of the CEO) is to show – physically, verbally, emotionally – that there are worlds within you.Concretely, whenever you are at the negotiation table, it is of paramount importance to know every single meticulous detail, chronological event and point of ambiguity in the case by heart – beyond your subjective perception and evaluation of what you presume/felt happened.
    As a party, it is also wise to fully understand your BATNA (Best Alternative To the Negotiated Agreement), WATNA (Worst Alternative To the Negotiated Agreement), and ZOPA (Zone of Possible Agreement). In addition, it is important to be aware of your weak points – some of which need to be openly shared with the mediator and strategically inserted in the discussion – and few (for instance main three) key realistic priorities for the present meeting.Thus, at any point of the negotiation experience, you will: a). know where you stand; b). not allow the other side to frivolously Capoeira with the dispute facts; c). have the liberty to explore versatile options way beyond the narrow frame of the case.
  2. Whilst it is important to acknowledge the benefits of the mediation/negotiation process and your passion to contribute to the latter, quite often – with a nod to the past and an eye to the future – it is better to be proactive and quickly stop pussyfooting around the issues.
  3. Also, showing that you can echo the other party’s words, that you have adopted the mediation non-adversarial concept of problem-solving even on a purely linguistic level – all of this is precious and helps you create a fertile negotiation climate.However, it may be better to not dive too deeply into sugary phrases. Negotiation is neither a love parade, nor is it a 4th-wall Stanislavsky théâtre. Hence, should you happen to use a so-called golden phrase (ex. “I deem we need to rebuild our partnership on the pillar of trust…”), it may be more useful to exemplify the matter and wave goodbye to the ghosts of sugary abstractness (“… and what I envision is a regular monthly meeting at your new co-working space”). Patere quam ipse fecisti legem.

What you shouldn’t miss

This competition is a unique academic forum, since it allows you to spend a week in an informal atmosphere among a galaxy of mediation stars who are more than eager to render insights into the vivid worlds of alternative dispute resolution. So, instead of being strung out on perfectionism and constantly stressing out over the competition with your mentors and peers, join all social events, participate actively in the workshops, get to know everybody – be it fellow participants, coaches or expert assessors.

Join the CDRC family by talking to at least five fellow students and three professionals each day (Claudia Winkler can give you further instructions with regards to this), explore Vienna – beginning with the futuristic campus of the University of Economics and Business. Oh, one final tip, which a calendar year after my CDRC journey I realise is utterly important – if you have a particular proclivity for adrenalin experiences, do try the Black Mamba at the Vienna Prater!

Good luck! 

Georgi.

Written by Georgi Todorov Elenkov.

Georgi.jpgGeorgi Todorov Elenkov is a law student at Sofia University “St.Kliment Ohridski”, pursuing a career in international commercial law and ADR. He works at Legal Solutions Partners, a law office providing legal and business advice with a prime focus on commercial matters. Having participated in many international forums, i.e. ICMC (Paris) and the second edition of CDRC, and having successfully certified as a professional mediator, Georgi aims to play an important role in the Bulgarian ADR community and actively promote mediation in his home country. Literature, theatre and travelling are among Georgi’s many interests.

Posted by Georgi Todorov Elenkov in ADR, Conciliation, Education, Negotiation

Ask An Expert: Claudia Winkler

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Claudia Winkler, Negotiation Trainer and the Director of the IBA-VIAC CDRC Vienna Mediation and Negotiation Competition, discusses legal education, the future of ADR and the importance of negotiation skills in transforming the culture of dispute resolution. Continue reading →

Posted by Natasha Mellersh in ADR, Ask An Expert, Negotiation
Notes From The Paris GPC

Notes From The Paris GPC

Paris

The Paris GPC drew a huge crowd, with approximately 300 attendees, and was jam packed with discussions from 8am until 8pm. Taking place during Paris Arbitration Week, with numerous events held across the French capital, there was a strong emphasis on arbitration alongside other ADR mechanisms.

Expertly organised by Diana Paraguacuto-Maheo, Partner at Ngo Jung & Partners, who served as the President of the GPC Paris Organising Committee, it was the biggest GPC event in Europe to date. With speakers and delegates from all stakeholder groups, and from many different countries. Users were especially well represented, making up 24% of all attendees.  

The conference had a slightly different structure to other GPC events, running panel discussions on the Core Questions in the morning and offering a choice of workshops in the afternoon ranging from digitalisation of dispute resolution or optimisation of dispute management, to the role of experts in dispute resolution processes.

Much to discuss

Following some initial technical blips, the event flourished into active debates and discussions, with panelists comparing aggregated data from previous events to key trends in France. A number of issues were widely discussed throughout the day, such as education and cultural aspects of dispute resolution, as well as the role of the courts in promoting mediation in France. 

What was particularly evident throughout the day was the strong interest from the wider legal profession, especially from the French judiciary. There was a wide consensus for enacting more effective policies to further promote ADR, particularly in regards to arbitration – with panelists emphasising the pivotal role of lawyers in developing arbitration and its use. 

Many panelists believed more encouragement from courts, providers and advisors is necessary to promote mediation as an alternative or in combination with other proceedings – as well as the creation of specialist chambers to facilitate these processes. One panelist stressed the need to combine adjudicative and consensual dispute resolution mechanisms on the national level, by stating: “The rule of law and consensus should not be the two extremes of the spectrum, but two sides of the coin.”

Aside from more general support of ADR mechanisms, the need for cultural change on both a national and a corporate and social level was also widely debated.

Mandatory mediation

Another key topic was the use of mandatory mediation clauses – many speakers felt that these would defy the very purpose of mediation. Some felt that the forced nature of such clauses would be ineffective – due to the potential unwillingness of the parties to come to a compromise.

One panelist noted that simply going through the motions before moving on to an adjudicatory process was highly ineffective – stating that the parties must come to the process voluntarily and with the aim of finding a mutual solution. However, others believed it was a good way to introduce mediation into the dispute resolution process as a whole. 

Education and innovation

An issue that came up a number of times was the role of education in widening the use of ADR, with several speakers noting that the promotion of dispute resolution mechanisms is simply not enough. Many panelists spoke of the need for more general training in negotiation and ADR processes in law schools and universities. The emphasis on creating a litigation culture at law school could be at the root of limiting progress in the field, with many law students being unaware of ADR altogether. One panelist noted that young lawyers must be taught how to effectively manage disputes rather than how to fight them. 

Another panelist went further, suggesting that training should start in primary school with a focus on on non-violent communication. Fostering a culture of respect and effective conflict resolution at a young age, which continues at higher education levels could be a key driver in effecting cultural change across entire societies. 

Technology and innovation was also high on the agenda, with afternoon workshops dedicated to discussing digitalisation and dispute resolution of the future. Speakers discussed the growth of online dispute resolution (ODR), as well as the global trend towards the use of consensual dispute resolution mechanisms – issues that will be more widely discussed in Paris again next month at the International Chamber of Commerce‘s ODR Conference on the 12 and 13 June.

High demand

The event showed a growing demand for more constructive debate and engagement within the wider legal community, bringing together all stakeholder groups to identify gaps and facilitate better communication between them. With such a wealth of information, the Paris GPC appeared only to scratch the surface of a much wider debate on culture, efficiency and general development of dispute resolution – something that will take far longer than a day to address. Hopefully for France and other countries, this is only the beginning.

Written by Natasha Mellersh.

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Natasha Mellersh is the editor of the GPC Blog, she is currently also pursuing an LLM in Public International Law at Leiden University in the Netherlands. She was previously the online editor of CDR Magazine and a senior editor at LexisNexis.

Posted by Natasha Mellersh in Access To Justice, LOC Coverage, Negotiation
In Conversation With Michael McIlwrath

In Conversation With Michael McIlwrath

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Michael McIlwrath, Global Chief Litigation Counsel for GE Oil & Gas, speaks to the Singapore International Dispute Resolution Academy about global trends, key challenges, and the future of dispute resolution.

Continue reading →

Posted by The Singapore International Dispute Resolution Academy in Access To Justice, ADR, Ask An Expert, Negotiation

What Is Holding Back Mediation In India?

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I shall not mince words. In 1996, the word ‘mediation’ appeared in Indian statutory law for the first time. Cut to 2017, we are still waxing eloquent as to mediation being a ‘new’ alternative dispute resolution (ADR) mechanism, and yet, it has not really picked up in India. With a narrative building up over the years, that there is not much awareness about mediation, and therefore it has not struck a chord with many Indian users. 

In a series of pieces, I intend to pose some difficult questions and explore possible answers. I hope that during the course of The Global Pound Conference (GPC) Series 2016-17, Chandigarh, these questions will either lose their bite, or, better answers are provided. I believe that this exercise would go a long way to identify why mediation has not become more popular in India. Moreover, I am quite hopeful that it will also enable us to formulate a strategy to give an impetus to mediation in India.

The questions are:

  1. Would it be beneficial to categorise mediation as an ADR mechanism?
  2. Does Indian law (statutory and case law) differentiate between conciliation and mediation?
  3. If the second question is answered in the affirmative, then, what is the legal framework which applies to mediation in India?
  4. What is the stand taken by India before United Nations Commission on International Trade Law (UNCITRAL), in relation to mediation?
  5. What is the legal framework which applies to private mediation in India?

1. Would it be beneficial to say that mediation is an ADR mechanism?

The question is not whether it would be correct to say that mediation is an ADR mechanism. The question is, would it be beneficial to say that mediation is an ADR mechanism. In my humble opinion, if we adopt a vanilla approach, mediation could fit into this category, as it is definitely an alternative to litigation. However, I believe that it is this resort to a vanilla approach which has been a disadvantage for mediation.

One of the main problems with identifying mediation as an ADR mechanism, is that adjudicative (decision based) processes like arbitration fall into the same category. Furthermore, negotiation, mediation, conciliation and arbitration are said in one breath; at least in India, as much as these non-adjudicative (settlement based) processes greatly differ from arbitration. I believe that it would be in the benefit of mediation that it is rescued from human factors and cognitive bias, and hence, we must airlift mediation out of the fold of ADR mechanisms and give mediation asylum.

Why human factors?

We trolled Snapdeal instead of Snapchat. We have confused Sonu Sood instead of Sonu Nigam. We are quite capable of creating a Burj Khalifa – Mia Khalifa fiasco too. Despite all awareness measures, users tend to get confused between arbitration and mediation, merely because they are ADR mechanisms. I say so unabashedly, because, even when the writing on the door is “PULL”, we tend to push the door, not out of curiosity, but out of habit. So, awareness measures do not take us a long way.

Why cognitive bias?

Arbitration has not really left a very good taste in the mouth of its users. As ADR mechanisms, there is a user perception that like arbitration, mediation is also a failure in the making. Human factors add to cognitive bias.

ADR mechanisms can either be adjudicative (arbitration) or non-adjudicative/consensual (negotiation, mediation and conciliation). It is this dichotomy which calls for isolation of arbitration from other ADR mechanisms.

If it is not beneficial to call mediation an ADR mechanism, then what should we call it?

In order to answer this question, let us examine the basics. Litigation and ADR mechanisms come within the fold of dispute resolution mechanisms. Litigation takes place in a court of law, and the parties neither have any control over the court of law nor over the proceedings. Needless to say, the parties have no say in the decision which is pronounced by the court of law.

While arbitration is an adjudicative process much like litigation, the arbitrator/arbitral tribunal is created by the parties and the procedure is decided by the parties. Subsequent to appointment and deciding the procedure, the parties neither have any control over the arbitrator/arbitral tribunal nor over the proceedings. Needless to say, the parties have no say in the decision or award rendered by the arbitrator/arbitral tribunal.

Pertinently, mediation is diametrically opposite to arbitration, in the sense that it is non-adjudicative. In fact, mediation is far more democratic and consensual as compared to litigation and arbitration, which in my view is nothing but private litigation.

A need for new terminology?

In sum and substance, mediation is radically different from litigation and arbitration, and hence, it would be in the benefit of mediation to call it a ‘consensual dispute resolution’ (CDR) mechanism. What is good for mediation is good for negotiation and conciliation too. Thus, negotiation, mediation and conciliation should be called CDR mechanisms. I hope that isolation of arbitration as an ADR mechanism from negotiation, mediation and conciliation which are CDR mechanisms shall play a pivotal role in making not just mediation, but also negotiation and conciliation, more acceptable.

Another prevalent narrative is that in India, mediation and conciliation are one and the same. The said narrative has been built, probably in a bid to make the outcome of a mediation enforceable as though it is a settlement agreement (which is the outcome of a conciliation). However, the said narrative has put the cart before the horse. But setting that aside, does Indian law (statutory and judge made) differentiate between conciliation and mediation? I shall be exploring the answer to the said question in the next piece.

Written by Arjun Natarajan.

Arjun Natarajan

Arjun Natarajan is a Delhi/NCR based commercial litigator and an accredited/certified mediator.

  

    

Posted by Arjun Natarajan in Negotiation