Building a Career in Commercial Mediation

SYNOPSIS:

LAWyersClubIndia and its members had a great opportunity of attending and organizing a webinar session with Mr. Jean Christophe,onthe topic 'Building a Career in Commercial Mediation'. Mr. Jean himself is an experienced commercial arbitrator. His expertise on this area and inspiring words helped people comprehend the intricacies one shall take care of while pursuing for a career in commercial mediation.

ABOUT THE SPEAKER:

Jean Christophe is a full time trained mediator and the Co-President of Swiss Chamber of Commercial Mediation. He holds several degrees and has involved in multiple reputed professions like banker, lawyer, and in house counsel. His proficiency in mediation has aided him in expanding his area of functioning over countries like Austria, Brazil, Switzerland, Germany, Dominion Republic and it continues to prosper. Over the years, Mr. Jean has been moulded by his involvements in philanthrophical concepts, legal-commercial- banking industry, network building through alliances etc. He believes that what is recurring in all these realms for co-existence are good governance, ideal conflict management and dispute avoidance. His deep-rooted passion towards building networks and sustainable development in management resulted in an initiative, the World Association of PPP Unites and Professionals, which aims at collaborating private and public sectors to enable healthy development.

CAN YOU AFFORD NOT TO DO A MEDIATION?

Mr. Jean explained how Commercial Mediation attaches with it an intrinsic commercial value because available alternative is adoptprolonged and complicated legal cases, involving unnecessary expending of money, time and control. Monetary advances are to be made in courts as well as arbitration tribunals, plus the process of registration and follow up is tedious. A risk that entails these methods of conflict resolution is of not findinga specialist having expertise in your area of actions. Submission to usual judicial or tribunal setup is equivalent to seemingly relinquishing the control over whatever you submit because the parties do not involve in the dispute as part of observing independence of justice. However, this do not necessarily mean the outcomes are in the best interests of people.

To avoid all these difficulties, one has to be cautious while choosing the dispute resolution system design. Mr. Jean continued to explain why mediation is an advantageous mechanism owing to its agility, speed, flexibility andexpedited nature of taking actions.If, at times, when the parties are unable to agree on their mediator, they have the option to resort to co-mediation where different opinions would be complemented to each other and the entire process becomesomni-partialrather than multi-partial.

The relevance of mediation becomes maximal when there is a necessity to maintain confidentiality. Every business requires a minimum level of secrecyand submission of its dispute matters to courts or arbitration tribunals reveals all of their valued information into the public domain as law requires transparency to function ideally. Whereas, this disadvantage is fixed by mediation process providing a safe space for parties to decide with the help of a neutral party as whatever shared during the process cannot be used against a party in a subsequent legal proceeding.

Another incentive is that the mediators get to decide the course of the dispute and thereby influence the decision of the dispute, by primarily giving attention to the emotions involved. However, the arbitrator or judge cannot address such issues.

RETURN OF INVESTMENT

Is conducting long arbitration or court proceedings worthwhile? Preparation of memoranda, filing of submission, appointing lawyers/ arbitratorand their fees, setting up a private tribunal etc. comes at a cost, especially when there is a requirement of minimum three party in the tribunal chairs. There will be several parties involved too. Unlike an arbitrator/judge, the mediatorwill look at how parties present the facts, work with their positions and look at interests of each sides; construct something that will allow the parties to do a transformation of the conflict, whichworks for their future. While arbitration and state proceedings take a closer look at the past events to decide a conflict, mediation looks into the future only to work up a solution that brings most return out of the investment they made towards the process. The situation is different for other proceedings, which involve witness examinations, recording testimonies, briefing, driving away a lot of energy and unwarranted investment.

LICENSE TO NEGOTIATE

In a mediation, the mediator only partakes as the facilitator, while the representatives at the table have the authority to speak on behalf of parties and settle the matter. This is called the license to negotiate that allows the parties to make a self-determinedchoice of future actions. They have complete control over the matter and decision.

SUCCESS RATES

There is an overwhelming success rate of 80% of mediation proceedings. The underlying reason behind a tremendous number of successful mediation is that the parties’ interests are protected and their autonomy is respected.

QUESTIONS HAVING MOMENTUM

An extremely conducive element is the ability of mediator to frame the dispute at stake and channel it the way he wants. His questions decide the momentum of the dispute. For instance, the mediator can posehypothetical questions to enable communication that could not happen earlier. 'All resistance matches an unmet need'.

When the dispute reaches a saturated point, a pause can be taken and the mediator aids to overcome this situation by providing a rational overlook of facts.

PEOPLE AT LARGE STILL CHOOSE TO APPROACH COURT FOR DECISION MAKING. HOW RELEVANT IS MEDIATION, IN THIS CONTEXT?

There are no disadvantages in attempting the process of mediation. One can maximize the possibilities of results; minimize cost while being in complete control of things.

TYPES OF MEDIATORS

• Generally, ADR Neutrals
• Mediators specialized in disciplines like family, commerce, peace
• Cyber mediation - relating to Information and Communications
• Multi- partial mediators
• Adjudication mediators
• 1+1 mediators
• Conciliation mediators
• Automotive industry mediators
• Collaborative law mediators - when two lawyers agree to not proceed to next step in judicial hierarchy system if the agreement does not come to a settlement at their level.

Mediation is an age-old profession and has been in practice since decades. It has been very common due to its faculty of being able to essentially proceed for the parties’interests; power of innovation created only through question and complete transformation of conflict.

HOW CAN MEDIATION HELP IN THE CURRENT COVID ‘19 TIMES?HOW EFFECTIVE IS ONLINE MEDIATION?

The surge in court cases is not resolved quickly because there is no way to settlement. The system do not promise any agility or flexibility. Mediators have started using online platforms like Zoom. It is technically possible to effectively conduct online mediation. However, mediators argue that the dynamics and bodylanguage, which are essential elements of the process,cannot be captured. There is a hindrance to meet parties in person. Therefore, it is for the parties to decide how and where they want to do it.

CONFIDENTIALITY BEING A UNIQUE ELEMENT IN MEDIATION PROCESS, DOES ONLINE MEDIATION PLACE IT AT RISK DUE TO LEAKAGE OF INFORMATION OR HACKING?

It is for the parties to decide whether they choose platforms like zoom or shall conduct online mediations using software with stringent securities and password systems.

ACCREDITION

Many Indian Institutes like IIM mandates a 40 hour training scheme for commercial and family mediators and later, they are allowed to upgrade. One should have willingness and passion.

According to Swiss standards, the Swiss Chamber mandates a minimum of 120 hours of commercial mediation training along with development of general knowledge, professional skills and area specific wisdom.

HOW DO WE INITIATE MEDIATION PROCESS THAT IS A PURELY PRIVATE ONE AND NOT INSTITUTIONALIZED ONES? WHAT IS ITS ENFORCEABILITY?

In India, there are no private mediation methods. Where it is allowed, the legal sanctity is decided by the parties since their autonomy is repected. They might choose to borrow the rules of the judicial institution and resolve the dispute through private mediation. Nobody can obligate the mediator or parties to follow a particular type.

ARE MEDIATORS EQUIPPED TO INTERPRET THE VARIOUS CLAUSES OF CONTRACT RIGHTLY TO HELP THE PARTIES ARRIVE AT A CONCLUSION?

The mediators are often not equipped to interpret the clauses but these legal possibilities should stand external to the process. The choice should be interest based, not based onright and wrong, related to legal situation. Therefore, when a lawyer becomes a mediator, it may disrupt the process.

However, the process demands industry specific knowledge. This factor is taken care of by the parties while they choose a mediator from the same industry.

WITH ALL THE ONGOING ECONOMIC PRESSURE, WILL THE GROWTH OF MEDIATION GENERATE INCOME?

If people generally chooses mediation, fees will go high. Parties need not lose so much money in the process. If the same matter is introduced in court/arbitration, one cannot be sure of the outcome and it might cost himmillions. Mediation, on the other hand, guarantees a controlled outcome.

WHAT ARE SOME TIPS AND TRICKS FOR SUCCESSFUL MEDIATION?

Firstly, it is important to have both parties aligned and clear on what the alternative would be if they do not confirm to mediation. They should be aware of the time, money and resources that is required to be spent as a mandate of the court/tribunal process. In addition, it is not for these platforms to solve the parties’ emotional dilemma. Converting an unworkable and disputable contract into a reformedrelationship that looks into the contract’s futuristic dimension is a huge incentive attached to mediation. The parties are at freedom to decide on something very different from the existing contract.

WHEN THERE IS A DEADLOCK IN DISCUSSION WITH REGARD TO INTERPRETATION OF CLAUSES, HOW CAN A COUNCILOR/NEGOTIATOR TO BREAK THE INTERPRETATION?

It is not for the legal persons but for the parties to decide on a compromise. They have to agree on a common point as fighting for a 'legal right' comes with a cost.For instance, during this pandemic, many contracts are delayed and disrupted. Hence, even if it has clauses allowing claim of compensation in the event of a breach, will it help parties facing disruption since we have not seen a situation like this since WWII. The most reasonable approach is to consider interests of both sides.

DURING THE ARBITRATION, SUPPOSE THE ARBITRATOR SAYS MEDIATION IS BETTER FOR THAT CASE. HERE, ARBITRATOR TAKES THE ROLE OF A MEDIATOR AND THEN WHEN IT FAILS, IT JUMPS BACK TO ARBITRATION. IS THERE AN ETHICAL ISSUE INVOLVED? WHAT HAPPENS TO CONSEQUENCES LIKE CONFIDENTIALITY?

No rules preventing moving back and forth between arbitration and mediation. Biggest advantage in this case is thatthe contextual knowledge of facts gained during the process of mediation can be used in arbitration if the parties agree. On the contrary, a mediator may not be fully committed to sorted outcome.

WHILE TALKING INTERNATIONALLY, ARE THERE ANY OTHER INTERNATIONAL NEGOTIATION TOOLS?

Dispute resolution system design is extremely important. After identifying what the specific needs are, the characteristics of different designscan be combined. State and private parties may be involved together. Many suppliers exist in the supply chain who are involved in procurement of goods. In such cases, there is no sense in creating so many arbitration clauses with regard to their numerous employee contracts of all shapes and sizes. These agreements cannot be reactive, contracts are oftenback-to-back, drafting numerous penalty clauses takes a lot of time. It also consumes time to have the arbitration tribunalup and running. On an average basis, an arbitration can rarely have a solution within a period lesser than a year’s time, even in case of fast track administration.

REGARDING COMMERCIAL MEDIATION, WHAT IS YOUR VIEW ON SINGAPORE CONVENTION ON MEDIATION? WHAT IS HOLDING BACK EU FROM SIGNING IT? WHEN DO YOU THINK SWITZERLAND WILL TAKE A STEP AHEAD AND SIGN IT? WOULDN’T SIGNING THIS CONVENTION BE A GREAT STEP?

UNCITRAL have numerous international arbitration rules signed by 50 countries but only three countries have ratified - Fiji, Qatar and Singapore. Singapore Convention is applicable to mediations from these three countries only.

Does it really need an international convention for enabling mediation in executable trade in a public tribunal? It is a positive step from a marketing standpointto make the process more common, but it takes away the flexibility of the whole process. Not a single state has signed because of the glaring differences in their legal standards. It is difficult for a common stand point to enable an equivalent lawmaking, especially in European nations.

WHAT ARE THE TIPS FOR A FRESHER? APART FROM LAW, ARE THERE ANY OTHER AREAS TO BE WELL VERSED IN BEFORE VENTURING INTO COMMERCIAL MEDIATION?

A good lawyer is not necessarily always a good mediator. He has to be extremely creative and well versed with multidisciplinary sectors. Factors that matter include their education, viewpoint, training, communication in a non-hostile way, ability to decelerating things if quick, being able to transform questions. To become better, it is important to develop all these. Soft skills of today are the hard skills of tomorrow. To master this discipline, it is good to start at the earliest.