The CPR European Advisory Board (EAB) continues its series, “Meet CPR’s Distinguished Neutrals in Europe,” and today it presents its second Q&A, with Professor Tsisana Shamlikashvili, centering around the theme of “Mediation in the 21st Century.”
Tsisana is a Moscow based, international expert in ADR. She focuses on mediation and was responsible for initiating and supporting the institutionalization of mediation in Russia, founding the Center for Mediation and Law in 2005. Her mediation/neutral practice covers a wide range of cases from complicated cross-border commercial disputes to family conflicts, as well as intellectual property, workplace, financial, personal injury and medical malpractice disputes. She is currently president of the National Organization of Mediators (NOM), academic chair of the Federal Institute of Mediation, founder of the Scientific and Methodological Center for Mediation and Law, Chair of the Subcommittee on ADR and Mediation in the Russian Association of Lawyers, founder, publisher and editor-in-chief of the magazine “Mediation and Law”, and head of the Mediation Master’s Program at MSUPE. [https://mediacia.com/en/founder/]
By Kathleen Fadden (consultant with AMGEN) and Vanessa Alarcon Duvanel (King & Spalding LLP)
How did you get your start as a neutral?
It has been a lifelong journey towards mediation which perfectly synthesized my professional background and experience. Understanding how imperfect traditional ways of addressing conflict are and how much harm we can avoid using mediation as a preventive approach made me start the journey.
Who is your dispute resolution hero/heroine?
I strongly believe that each person who finds enough courage to step into a dialogue with his/her opponent has to be supported and professionals who assist in these complex situations are heroes and heroines too.
What is the one piece of advice that you would want to give to the younger generation looking for a first appointment as neutral?
To be consistent and persistent, to stay humble and maintain curiosity. Always be ready for the unexpected. Be surprised about what won’t happen!
Were you ever the first in doing something?
Yes, indeed. Development of mediation and its institutionalization in Russia was initiated by me, as was ADR implementation generally.
What makes your conflict resolution style unique?
Each mediator is unique and each mediation is unique. My preference is to facilitate parties in their efforts to resolve the conflict, to find an exit out of dispute which will provide the parties with a mutually acceptable future. This means possessing the ability to use different models of mediation in each case or even a blend of the models to achieve the best result. The main thing is to follow the key principles of mediation as a modern tool to address the conflict and to develop conditions so that the parties in the conflict are empowered.
What has been the most difficult challenge you have faced as a neutral?
There are difficulties and dilemmas in almost every case. Ethical dilemmas are often the most complicated to resolve. For example, how should a mediator behave when he/she holds information crucial for settlement of the case but one party does not want to share the information with counterparts and does not wish the mediator to do so either or even have any direct discussion about the topic?
What is the most important mistake you see counsel make?
The biggest mistake counsel can make is to fail to give the represented party a real voice, view or opinion at the hearing.
If you could change one thing about commercial arbitration, what would it be?
It would probably be the introduction of a two to three hour compulsory informative session regarding mediation and the requirement to include a mediation clause in most contracts.
Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?
We have to be very attentive to potential vulnerabilities caused by the use of technology and indeed follow all data protection rules in every context, domestic and crossborder.
What do you see as the next “big thing” in global dispute prevention and resolution?
I think one of the next “big things” is the wider use of mediation. Citizens, societies, corporations and states developing a real culture of dialogue to prevent conflict when disputes occur. We should deploy all possible efforts to make that happen. Thinking about new trends in dispute resolution, ODR deserves a mention. It is necessary in a global digital world. Today there is an increasing demand for ODR in the court environment. Hopefully, in time, the private sector in B2B / B2C transactions will understand the benefits of such tools not only in e-commerce and not just in the cross-border context. In recent weeks we’ve already witnessed a growing demand for ODR and mediation using tech platforms. Mediation will be one among other preventive tools in times of crisis for disrupted businesses.
For which types of conflicts would you recommend ADR?
In most cases, ADR and specifically mediation, offers parties more advantages and opportunities to resolve disputes with the best possible outcome because control is in the hands of the parties. ADR can be used in commercial cases, IP cases, construction/development, insolvency, medical malpractice, personal injury etc. There are very seldom cases when mediation cannot be used and of course, sometimes, it can be combined with other ADR modes. For instance, recently there has been growing interest in hybrid procedures such as MED-ARB/ARB-MED.
In your view, what makes CPR unique?
CPR is one of the oldest organizations, established to change the dispute culture and promote ADR in business/economic environments as well as in society as a whole. CPR is trying to approach and involve all stakeholders even if they have conflict of interests. The CPR pledge for corporations and law firms was one of the key factors which increased awareness of ADR and spawned a demand for use of ADR. Last, but not least, CPR has gathered the most experienced ADR professionals/neutrals.
Do you have any concluding remarks you would like to share?
The contemporary world needs dialogue and inclusion at all levels of society now more than ever in human history. In times of crisis and total threat to fundamental human rights, interference with private life, radical shifts within social life and familiar modes of communication, mediation can empower individuals, make their voices heard in a constructive way by others, especially by decision-makers.