3 tips for party advisors
Imagine there's a dispute over a contract between parties located in different countries who wish to resolve it through mediation. In such cases, there are a few crucial points to consider to ensure the mediation stays on track. How do you make sure the mediation process goes smoothly?
For example, Dutch Party A and Austrian Party B are conducting business. A asked B to install a cloud server. Now, as things aren't working as expected, A holds B responsible, but B claims that the Italian Party C is causing the issues. For the project, C provided the software, and B provided the hardware. Since A doesn't have a functional cloud server on time, their two largest clients threaten to cancel their orders. A, B, and C decide to engage a British mediator.
Cross-border mediations require more preparation and flexibility than "ordinary" mediations in a different language. An international dispute offers more challenges and opportunities for a tailored solution. Here are 3 tips to be well-prepared:
Tip 1: Start with the process; substance dealt with later
Don't dive immediately into the substantive or legal aspects of the dispute but focus first on the mediation process itself and the involved parties. Ask questions like: Where and when will the initial meeting take place? How long will it last? Who will participate in the mediation? Are the parties open to working in caucus (separate meetings with each involved party), as is common in the United Kingdom, or do they expect joint sessions? What is the mediation's language? Which law applies to the mediation procedure? What are the costs?
Mediation rules and parties expectations can vary from country to country, and it's crucial to clarify them beforehand. In the example, Party B may likely expect joint sessions, while A thinks the mediator will also hold separate discussions with the parties. Party C assumes that parties are required to bring a lawyer.
Tip 2: Use these 4 quadrants
A handy tool to help determine the expectations of parties in a specific mediation is this grid with 4 quadrants. Discussing this with all involved parties beforehand can prevent misunderstandings. Misunderstandings, which might otherwise be interpreted as malicious intent or incompetence, will certainly not contribute to the success of the mediation.
The example mentioned earlier, explained using this quadrant:
Austrian Party A likely leans towards quadrant A: purely facilitating with a focus on the quality of the process and outcome.
Dutch Party B wants to reach a solution quickly and has a pragmatic approach, which may translate to a switch between quadrant A and B
Italian Party C will probably expect the mediation to be in quadrant C.
British Mediator D is probably accustomed to operating in quadrant D.
Paying attention to expectations about the mediation process beforehand can ensure clear agreements and avoid potential points of conflict and misunderstandings about the mediation itself.
Tip 3: Prepare a pre-mediation briefing
A pre-mediation briefing is a document in which each party outlines the state of affairs in 5 to 10 pages and how they view the case. This briefing provides the opportunity to highlight essential points and offers valuable information to the mediator. The following tips can help parties create a pre-mediation briefing:
I. A summary of the dispute and legal issues:
Facts/events on which there is (no) agreement.
Key legal issue(s).
Desired compensation.
Any ongoing legal proceedings.
II. The course of negotiations so far:
Interests, needs, concerns and motivations of both parties.
Previous settlement proposals and efforts made to reach a solution.
Obstacles: why the dispute has not been resolved yet.
Expectations of the mediation, issues requiring specific attention, and any solution directions a party wishes to explore.
III. Other essential information:
Specify who participates (individuals) in the mediation.
Describe the expectations of the mediation and the documents you want to present.
In conclusion
Cross-border mediation can be challenging and interesting. Creating clarity about the mediation process and expectations among all parties using the grid and pre-mediation briefings increases the chances of a successful cross-border mediation.
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