Once parties have agreed on location and potential dates, they will proceed to what is currently the most challenging part of international mediation: identifying candidates and selecting a mediator. Obviously, they will want someone who possesses the qualities and skills they perceive would be helpful in achieving resolution of their dispute. The international character of a dispute will only magnify the difficulties parties already face in locating someone each side will trust and respect. Unfortunately for parties, the identification of suitable candidates and agreement on the appointment of mediators (and arbitrators, for that matter) remains firmly embedded in pre-20th century technology: imperfect information transmitted via word of mouth, and what can be gleaned from a curriculum vitae or an initial discussion with the candidate. Although there are some hopeful indications that this will change as private international dispute resolution grows, it is through these admittedly unreliable channels that parties must generally weigh their considerations about a mediator's suitability for their dispute.
In the case of a dispute between two domestic parties, the ease with which they are able to locate a suitable mediator will vary based on the country in which the dispute arises. In the United States, for example, there are literally dozens if not hundreds of institutions at the national and local levels that can provide parties with names of qualified candidates. By contrast, in countries where mediation has not developed into a robust profession, there may be few or no institutions to provide such as service. For better or for worse, international mediation is more akin to the latter situation, with few institutions even claiming to specialize in the resolution of international commercial disputes. And where such claims are made, parties may want to eye them with suspicion. Just as there are lawyers in some countries who claim to be “mediators” after having attended a conference or heard a lecture on the subject, there are international arbitrators who also hold themselves out at as “mediators” despite never having been trained in nor had much experience with the process. They are not “mediators” as the term is generally used to refer to a specific profession.
Question: If an international arbitrator claims on their cv that they are a “mediator”, can I assume they have at least been trained in mediation and have experience with the process?
Answer: No. Unfortunately, just calling oneself a mediator is absolutely no indication of a person’s qualification or skills to conduct a mediation. There is no official qualification or degree by which a person can claim to be an “international mediator." In fact, in most countries there is no authority or professional body that restricts or regulates claims of being a “mediator.”
3. A complaint leveled against the mediation profession in some jurisdictions is that it is not a “profession” at all, or at least as the term is generally used to refer to a certain degree of training, certification, and standards. “Throw a stone, hit a mediator,” is how one prominent US mediator has described the unregulated system in the US (true of most other countries) by which one can become a mediator, at least in theory, merely by announcing one’s intentions. There are, however, ways of identifying whether a proposed candidate possesses at least the most basic skills of a mediator.
The opposing party: sharing information about potential candidates. The selection of a mediator is too often confused by inexperienced counsel and parties with the process of selecting an arbitrator, perhaps because there are superficial similarities in appointing a neutral third party in the context of a dispute in which trust will be lacking. In contrast with the adversarial process of appointing someone who will adjudicate a dispute and hopefully be favorable to one side’s positions, however, the selection of a mediator should be a collaborative and even congenial one. Indeed, it is in a party’s strategic interest to find someone that the other side will like and trust (since settlement is the goal). There are also tactical advantages to deferring to the other side. A savvy party will treat the selection process not as an adversarial one but as genuine collaboration, and use that collaboration to build trust that will be useful in the mediation. It should come as no surprise, therefore, that a meaningful number of cases are successfully resolved by the parties as a result of this dialogue, and before a mediation even takes place.
Word of mouth. As with the appointment of arbitrators, what parties really hope to identify in candidates are the soft qualities and skills that are not readily apparent from a curriculum vitae or public listing of the mediator’s name and general qualifications. There is no greater selling point than a peer who attributes a past settlement to a particular mediator’s skills. But while word-of-mouth recommendations may be useful means of identifying and appointing mediators in the context of disputes between domestic parties, it not usually a very good one in the international context where the issues and parties are likely to vary even more substantially from one dispute to another. While a previous party’s satisfaction with a certain mediator is a helpful endorsement, it should be considered no more than a starting point in the process of identification of suitable candidates. Thus, while we encourage parties to ask their contacts to recommend candidates, we warn that they may find these recommendations of limited value in practice.
Institutions. Although an institution may have the experience to appoint someone well-qualified for the dispute (which is not a given, however, in an international case), the parties’ failure to reach agreement on a mediator is not a good way for them to start the mediation process. That said, parties should feel perfectly comfortable asking institutions to provide a list of potential mediators to consider. There is no downside to this, and institutions will attempt to identify candidates that meet the selection criteria provided by the parties. Additionally, obtaining a list of names from institutions can reduce the risk of “reactive devaluation” that a party may encounter from the other side when proposing candidates. Ironically, this psychological term is part of the toolkit used by mediators to overcome negative or mistrustful feelings that one side will associate with the other’s proposals. When drawing up a list, institutions will have one of two sources for the candidates: a closed pool of mediators maintained by the institution, as is the case with many mediation institutions, and “going to market” to find suitable candidates, an approach usually adopted by arbitration institutions that also offer mediation services.
Mediation institutions. Many mediation institutions maintain a closed pool or list of mediators, and often exist as a form of cooperative or partnership for the benefit of the mediators included in this pool. For example, this is the approach followed by the Centre for Effective Dispute Resolution (CEDR) in London, JAMS in the US, and the ACB in the Netherlands, three well-known mediation institutions. In our experience, mediation institutions, because of their desire to promote the practices of the mediators associated with them, are generally happy to assist parties by providing lists of suitable candidates, often at no charge. The advantages of this approach, particularly for domestic disputes, is that the institution regulates both the quality of its pool and will likely have the benefit of experiences and party feedback that it can use to help parties find the person most suitable for their dispute. The drawback, of course, is that the pool is likely to be limited for the most part to mediators whose only experience is domestic litigation. In the best of cases, however, the institution’s pool may include a handful of highly experienced commercial mediators whose experiences are also international, and parties can benefit from having them on their list. There are also certain institutions that are training or developing neutrals having specific subject-matter expertise for disputes where there is a belief that appointing a specialized neutral may be preferable (e.g., GAFTA for commodities and shipping disputes, and WIPO for intellectual property related disputes). These lists are not necessarily open. (For example, although WIPO publishes its list of domain name panelists on the Internet, this is not the same list it has for mediators and arbitrators, which is not publicly available).
Arbitration institutions that provide mediation services. All of the major international arbitration institutions today - the ICDR, ICC, LCIA, WIPO and SIAC - now offer mediation services in addition to arbitration. This is also true of some leading regional institutions, such as the Chamber of Arbitration of Milan, the Swiss Chambers of Commerce, and the Chamber of Mediation and Arbitration of Paris (CMAP). Rather than maintaining their own pools of mediators, arbitration institutions take a “go to market” approach of attempting to find the most suitable candidate for the parties. The ICDR, for example, will request input from the parties and then refer the matter to regional offices for candidates who may fit the relevant description. The ICC adopts a similar approach, relying on its network of “national committees” to identify suitable mediators. (While the ICC does not in their ADR Rules state that they will provide parties with a list of candidates, they will oblige a party request for one after an ADR proceeding has been initiated.)
Arbitration institutions may also be adept at supporting the parties’ administrative and logistical needs, such as negotiating fees with the mediator, arranging for suitable meeting facilities for the mediation, and managing all aspects of invoicing and payment.
There are disadvantages of requesting names from an arbitration institution, however. The first is that unlike mediation specialists who refer parties to their listed mediators, arbitration institutions will charge the parties a fee to conduct their search on the market, i.e., they will not provide a list until the parties have appointed the institution and engaged them in the process. The second is that an arbitration institution will obviously have much less experience in mediation than an institution dedicated to that purpose. The ICC’s national committees, for example, have a substantial reputation and experience in appointing arbitrators, but the total average ICC caseload of mediations conducted is fewer than 20 per year. Still, the “go-to-market” approach adopted by an international arbitration institution, even if not perfect, is in many ways best suited to identifying a mediator for an international dispute than relying on the restricted pool of largely domestic mediators maintained by mediation institution.
Emerging information sources. If cross-border dispute resolution is to keep pace with the growth of international business, it would be reasonable to expect that growth to be accompanied not only by increased use of arbitration and mediation, but also the specialization of the providers of these professional services and information about them. Two emerging trends are mediator directories and “blogs.”
Mediator directories. There are multiple directories that exist in different locations that provide basic biographical data about mediators. As these are mainly marketing devices for mediators, we see little utility in them for parties to a cross-border commercial dispute. As mediation grows internationally, however, an interesting development has been the announcement of publicly-accessible databases that will provide feedback from parties with their impressions of the mediator and his or her capabilities, in addition to basic biographical information. These databases are accessible at no charge. As of publication, two such databases have been announced. One is the “Mediator Directory” hosted by The Mediator Magazine in the UK, www.themediatordirectory.co.uk . Although initially intended for the UK market, mediators may still use this directory to list qualifications that may be attractive to litigants in an international dispute. Internationally, the International Mediation Institute (IMI), www.IMImediation.org, a non-profit organization in the Netherlands dedicated to promoting international mediation standards, has announced that it will provide a publicly-accessible database of all mediators who meet IMI standards. The database will initially list only those mediators considered at the top of the profession in different countries, and over time add mediators who meet IMI’s certification standards.
Blogs. The number of “blogs” by and about mediators is an interesting source of information that appears to be growing. To give some examples: Mediator Blah Blah, www.mediatorblahblah.blogspot.com, Mediation Channel, www.mediationchannel.com, and Settle It Now!, www.negotiationlawblog.com. There is even a directory of global mediation blogs, ADR Blogs of the World, www.adrblogs.com. These blogs can provide information about the mediators who write and maintain them, and if nothing else underscore their passion for the process. Taking by way of example one of the blogs listed above, a party checking it as of this writing would learn that in a period of just two months, the blog’s author had attended a week-long international mediation training conducted in another country, was corresponding with mediators in different jurisdictions, and held strong opinions about what techniques were most effective in persuading parties to settle their disputes or for overcoming roadblocks to settlement. The ability to refer the opposing party to a suggested candidate’s “blog” for information may also be useful if a party wishes to recommend that mediator to the other side. And even if these professional blogs appear to be intended more for mediation peers than for parties, they can also be a means of identifying global trends, negotiation tips, and other useful information.
Nationality: The issue of nationality is often important in an arbitration context. This can also be the case in mediation, but for different reasons and in different ways. Some institutions recommend that the mediator should not have the same nationality as one of the parties. This approach, whoever, can be too limiting and should be reconsidered on a case-by-case basis. In some cases nationality will be meaningless (e.g., the mediator may have been raised as a "third culture kid") and in others, it can hide a cultural bias (e.g., assuming a person to be of an Asian culture, based on their passport, whereas they may have been raised and completely educated in an American or European culture). Arguably, the issue of nationality is less important where the neutral has no authority and cannot impose an outcome, but it may paradoxically be an advantage in certain cases to have a mediator who is of the same nationality or culture as the other party. This may help to ensure a better appreciation or any cultural issues that may be acting as an impediment to settlement, where the cultural differences are great. It can also be helpful to have a mediator who is a bi-national (or is familiar with both parties' cultures). Offering the other party to choose any mediator of its preference and of their nationality, or to suggest a list of three neutrals having the same nationality as the other party can be a way of conveying confidence and trust in the process and the other party, although it is obviously important to know that such a neutral is properly trained and would not be biased as a result.
A Checklist of possible issues to consider: There is a very broad range of mediation styles and mediators. Choosing “the right” mediator can be very important in a cross-cultural/international context. For example in some countries the terms "mediation" and "conciliation" are used interchangeably and may mean the same thing, whereas in others they can mean very different things. In Switzerland, for example, the word “mediation” is used to describe a process in which a neutral is expected to be elicitative and non-evaluative, who refrains from making any proposals, and where the outcome should be based on subjective interests, whereas “conciliation” is used to describe a more directive and evaluative process, in which the neutral is expected to express a non-binding opinion based on objective or legal norms and to suggest a zone of possible agreement. Both involve a process in which a neutral assists the parties in reaching a settlement, but the styles and processes can be very different experiences for the parties and their lawyers. Even if this distinction is clear, does it make a difference? What do the parties really want, and what difference does it make whether they choose an evaluative norms-based process, or an elicitative subjective interests-based process? Often it may make no difference, as the parties are simply interested in achieving a faster and cheaper outcome. In other cases, however, the difference may be extremely important. The process of probing more deeply into subjective interests and perceptions may result in generating a broader range of options and different outcomes, which may be better aligned with the parties’ future interests (for example, in understanding one-another better and strengthening a future business relationship). These differences are becoming more apparent in certain international commercial mediations, where different emphases can be seen to emerge in some common law jurisdictions (e.g., greater use of caucuses) as opposed to other continental jurisdictions (e.g., greater use of joint sessions or co-mediation). It is impossible to generalize and stereotype, but there can be a danger in underestimating these differences when seeking to set up a mediation process. It is thus possible for a French and a US company to both agree on “mediation” using an institution, but with very different expectations as to what the process and the substantive skills of the mediator should be about, which may only be discovered too late. If one party wants an "objective", facts and law-oriented conciliation based on specific subject-matter expertise applied to past facts, and the other wants a future-looking "subjective" business interests-based process, spending substantive time on interpersonal and relationship-based issues, the parties may never agree on the neutral to be appointed and the issue of appointment may become contentious in and of itself. This can leave the institution in the difficult situation of having to appoint the neutral itself, who may be a disappointment or frustration to one of the parties (possibly even both) if this issue has not been identified and properly discussed. An excellent discussion on the topic of mediator's styles and the kind of mediations that can be sought can be found in Lenny Riskin's article "The New Old Grid". Professor Harold Abramson has also written a lot of excellent material on this topic, as has Kenneth Cloke (the author or Mediating Dangerously and Crossroads of Conflict).For these reasons, the following may be a useful checklist of issues to consider when setting up a mediation process or selecting a mediator:1. The Mediator’s credentialsa. "mental model" (family history, education, and professional training)b. cross-cultural experience (e.g., trainings, travel or education)c. professional experience (source profession and business experience)d. national trainings & continuing professional development interestse. subject matter expertise/areas of specializationf. checking their understanding of what it means to be "neutral, impartial and independent" or “multipartial” (and ensuring that they are indeed!)g. checking their understanding of what "confidentiality" means to them and how they intend to handle this issue2. The Mediator's preferred procedural approachesa. facilitative/elicitative, evaluative, transformative, narrative etc?b. their attitude towards emotions and how to deal with themc. their use of caucuses (when and why)d. their (un)willingness to coach the partiese. who directs the process: the mediator, the parties, the lawyers, all of the above (the mediator as “director” v. “orchestrator”)?f. how they like to involve clientsg. how they like to involve attorneys (e.g., restrictively v. actively)h. what preparation work they request pre-mediation (e.g., fully or partial briefing v. no prior knowledge v. a brief summary of the party's needs and interests -- but not their positions)i. use of time constraintsj. willingness/ability to co-mediate and work with other neutrals / co-mediation (why, when and how?)k. attitudes to hybrid processes (e.g., Med-Arb. MEDALOA,Arb-Med, Shadow arbitrator etc)l. familiarity with brainstorming and trust-generating techniques (De Bono lateral thinking/stimulation techniques, confidence-building exercises, non-violent communication, NLP, systemic theory etc).m. broad v. narrown. (un)willingness to conduct joint witness conferences, as opposed to sequential fact gathering sessionso. (un)willingness to carry messages3. The Mediator's cultural preferencesa. formality v. informality of proceedingsb. dress codec. propensity to be "left brain" v. "right brain" oriented, neither or bothd. preferences as to venuee. emphasis on a “social” program or eventf. attitude to power and distance to powerg. individualism v. collectivism (seeking consensus v. a majority decision)h. (dis)comfort with emotions and the importance (or lack of importance) in demonstrating empathyi. preference to avoid uncertainty v. comfort with uncertainty (e.g., on procedural or substantive issues)j. creativity and willingness to “experiment” with the partiesk. long-term v. short term orientationl. attitude towards "face" and "saving face" issuesm. willingness to be confrontational, direct or to do "reality testing" with the parties and their counseln. emphasis on seeking “a settlement” v. a “win-win” outcome.These are only some considerations, many of which may be irrelevant in certain cases, and there are no doubt others that should be mentioned. They are certainly worth bearing in mind before embarking down the road with a mediation and selecting a sole mediator.
Comments
Write New Comment ▼
Write New Comment
Sorry! This knol's owner(s) have blocked you from editing, making suggestions, or commenting here.