By Vanessa Alarcón Duvanel and Kathleen Fadden
On 15 May 2019, CPR held its third annual European Congress on Business Dispute Management, in London. Organized by CPR’s European Advisory Board (the “EAB”) and kindly hosted once more by SwissRe in the magnificent Gherkin building, the Congress inspired thought provoking considerations on topics of dispute prevention and resolution. As with last year’s summary, we have split this reporting in two parts; Part I sharing the morning panel sessions can be found HERE.
The afternoon’s session began with a keynote address by Teresa Giovannini of LALIVE in Geneva, Switzerland. Teresa Giovannini has a wealth of experience in international arbitration having served as an arbitrator in over 200 arbitrations and held leadership positions in various institutions. In a captivating speech entitled “what happens behind the curtains”, she gave the audience a glimpse of how arbitral tribunals operate. The integrity of the arbitral process has often been criticized and bias, in particular, be it unconscious or conscious, can impact throughout the process. Complete elimination of bias may be difficult and Teresa Giovannini outlined some simple steps that can minimize bias: adopting the screen selection process in the CPR Rules whereby the arbitrators do not know which party has appointed them; ensuring that the issues to be determined are identified at the outset of the proceeding and put to the parties; and strictly adhering to the principle that a case must be put aside if a party does not adduce sufficient evidence to support its case.
“Master Mediators Answer the Most Intriguing Mediation Questions”
The first panel of the afternoon proved to be a lively discussion about mediation challenges. The panel was moderated by Isabelle Robinet-Muguet (Orange) and Alexander Oddy (Herbert Smith Freehills). The panelists were: Eileen Carroll (Mediator and CPR Neutral), Renate Dendorfer-Ditges (Ditges and CPR Neutral), Diego Faleck (Mediator and CPR Neutral) and Birgit Sambeth Glasner (Altenburger and CPR Neutral)
The panel addressed three intriguing mediation questions:
What are the challenges when dealing with cross border mediation and what advice would you offer?
Obviously good preparation is table stakes. It is essential to take time to talk to the clients in order to understand what might be driving the dynamics, including whether the parties are being guided by lawyers and – in either joint or evaluative sessions – what the expectations are including how active they expect the mediator to be. The mediator must establish the process and set a substantive agenda for the clients. In this respect, another challenge that often arises in cross border mediations is that cross border frequently means cross-cultural. Mediators must therefore be sensitive to, and familiar with, cultural differences as such awareness can guide the mediator in selecting negotiation strategies/tactics that are more likely to be successful.
A second challenge is one of timing of the mediation hearing. Increasingly, mediations are being forced into short time frames, typically a day and no more. Master mediators however criticized the efficiency of this template – check the box – practice. It has proven helpful to require the parties to resume the following day because the interim night often provides valuable time for reflection. Where does this 24-hour model come from? The audience contributed suggestions pointing the finger to mediators who in most cases are lawyers and have other cases to attend to or at the insurers who tend to drive the 24-hour template.
Is the concept of a mediated settlement changing?
The concept itself may not have changed but its implementation suffers difficulties. In line with its remarks to the first question, the panel noted that the purpose of mediation is unfortunately too often gravitating towards setting the stage for arbitration rather than settling the dispute. It may be a function of the compressed time frames in which mediations increasingly take place (see above).
How do you deal with a conflict within a conflict?
There was no question that conflicts within conflicts impact the mediation process and therefore it is critical they be addressed effectively. It is not an easy situation to navigate. Good mediation process management and managing expectations are key as each case is different. Master mediators on the panel shared illustrative examples of what can generate a conflict within a dispute such as the imbalance in the parties’ levels of sophistication and/or resourcing. One often finds the weaker party being aggressive and/or irrational. From a process perspective, a mediator should be equipped to handle such situation proactively by taking the time to understand the concerns (the party may be missing information or believing that its interests are unmet) and by warning the stronger side to be patient.
Mediation is an art – it requires skills, training and practice!
“The Resolution of Complex, Multi-Stakeholder, Multi-Jurisdictional Disputes”
The final panel of the day examining the use of ADR tools in large complex disputes was moderated by Cliff Hendel (Hendel IDR) and the panelists were: Gavin Chesney (Debevoise & Plimpton), James Cowan (Shell International), Ania Farren (Vannin Capital), Albert Hilber (Swiss Reinsurance) and Richard Little (Eversheds Sutherland).
Setting the stage for the discussion, Cliff Hendel offered a couple of interesting preliminary remarks. Firstly, he reminded everyone that in large and complex disputes culture eats process for breakfast. In other words, culture counts! Failures often stem from the inability to understand one another. Engaging in active listening is therefore key. Secondly, there are of course trade-offs inherent to the co-existence of different legal systems. Notwithstanding some European laws in the ADR field, national laws are not particularly harmonized, leading to the risk of forum shopping (among others).
This panel addressed two main issues:
What are your views on the use of co-mediation in complex disputes?
The overall view was that generally mediation, per se, remains difficult in many jurisdictions and that is for cultural reasons. For many Europeans resorting to non-binding ADR is still perceived as a sign of weakness and many parties adopt a mindset whereby if they are to spend money on a dispute resolution process, they want a binding result. It is important to work to help parties overcome this hurdle. There is really no substitute for having all the parties in one room and giving all stakeholders visibility as to the whole picture. In the panel’s experience, this tends to produce more creative solutions. On co-mediation specifically, experience shows that it works well when all involved mediators are well prepared and even better if they have worked together in the past.
Does litigation/arbitration funding have an impact on mediation?
There is an often referred to “traditional” view that third party funder involvement will make settlement less likely. The panel did not entirely agree with that. Ania Farren, offering a funder’s perspective, explained that having a funder on board signaled a strong case. Funders typically do not influence the dispute resolution process and do not normally attend settlement discussions. Funders in fact do favor early settlement often preferring less money early than more money later. That said, and unsurprisingly, different third-party funders have different risk appetites. This diversity while beneficial to parties seeking funding for their case brings uncertainty and raises concerns as to the funders’ impact on the parties’ ability to settle or mediate the dispute. In international arbitration there is no formal regulation of the use of third-party funding and the panel agreed on the need for more transparency concerning funder involvement particularly given the potential for conflicts of interest.
The Conference concluded with closing remarks from Noah Hanft, CPR’s outgoing President and CEO and James South, Managing Director of CEDR. This was an opportunity to outline the fruitful collaboration between CEDR and CPR.
Noah was thanked profusely for his phenomenal contribution to CPR.
Vanessa Alarcon Duvanel is an attorney admitted to practice in New York and Switzerland and specializing in international arbitration. She is based in Geneva and serves as the Secretary to the European Advisory Board.
Kathleen Fadden is a legal consultant and member of the CPR’s European Advisory Board.