The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents this Q&A with Mladen Vukmir.
Mladen is the founder of Vukmir & Associates based in Zagreb, Croatia https://www.vukmir.net/. He has a background in intellectual property and is both a patent and trademark agent, admitted to practice before the Croatian State Intellectual Property Office (CSIPO) and the European Patent Office. He has been appointed by the Croatian government to serve as a member of the Board of Appeals for Patents and Topographies. In addition, he is an arbitrator on the panel of domestic disputes at the Permanent Arbitration Court at the Croatian Chamber of Commerce, a panelist on the UDRP Domain Name Panel at the WIPO Arbitration and Mediation Center and a distinguished neutral on the CPR Panels of Neutrals and at the INTA PON as well as being an IMI certified mediator.
How did you get your start as a neutral?
I have always thought that the adversarial process is not properly aligned with the interests of the disputants. During the second year of my traineeship, back in the Eighties, I attended a hearing in a divorce proceeding where I realized that I was not helping my client very much by bringing in legal expertise and positional thinking. Although I was well educated, I was not equipped to deal with the human aspect of the challenge faced by my client, captured in a protracted lawsuit. While it is a great anecdote, I will not retell it here beyond this summary.
As I am professionally involved in intellectual property, as soon as I became aware of the WIPO efforts in the mediation field, I joined its mediation education course in San Francisco, back in May of 2000 and immediately afterwards continued with the advanced trainings. A couple of years later, I participated in a full USAid mediation training held in Croatia by US instructors, followed by the first batch of International Trademark Association (INTA) international trainings as well as some CEDR organized trainings for the local judge mediators.
I clocked up my first practical experience (as a volunteer mediator) through a pilot, court-annexed program initiated by the Croatian ministry of Justice. This was followed by more international trainings and commercial mediation in various settings
Who is your dispute resolution hero/heroine?
My biggest mediation hero is Judge Srđan Šimac of the Croatian High Commercial Court, who started independently from me the very same year, through a judges’ exchange program in Canada. Since 2000, he has succeeded in bringing Croatia into the group of countries considered to have a developed mediation scene. A remarkable achievement. Since he took over the Croatian Mediation Association (HUM), he has turned it into a highly professional and experienced mediation hub, with an established mediation center and various training programs.
One of my early international trainers, an Italian mediator, Carlo Mosca, is also someone whom I remember as being a big influence. It was Carlo who first told me as a trainer during an INTA international training that a mediator is not responsible for the outcome of the process but is primarily responsible for the process itself. I think this is a very important insight for young mediators.
I should also mention my early trainers Bill Marsh, the late Colin Wall, and David Richbell, as well as Robert Mnookin and Gary Friedman. In addition, I would also like mention Jack Himmelstein, who was not my teacher but whose video on joint meetings strongly influenced me in accepting the importance of the joint mediation sessions relative to caucusing.
What is the one piece of advice that you would want to give to the younger generation looking for a first appointment as neutral?
Take any mediation that becomes available to you in order to find out how you function in the role of a mediator. It is important to find out as early as possible your own ideal balance between the knowledge you have acquired through mediation trainings, which helps to form you as a mediator playing her/his role and your own authentic self. Finding this balance is important in order to be able to build a deeper rapport with the parties. Secondly, do not hesitate to push much of the content typically dealt with during the opening phase into the preparatory phase of a mediation. This will make running the process with maximum efficiency much easier and, again, deepen your rapport with the parties.
Were you ever the first in doing something?
I was among the very first in my country to become interested in mediation back in 1999. This, in itself, was a pioneering step. However, I think even more important is the fact that since 1986, I have been very aware that the role of law will change in our societies. After many centuries of the increasing importance of law as a central axis of social organization, we are now faced with the prospect of law shifting away from its central role as a tool of social organization. To make myself clear, I do not think that law will vanish in any way, rather, I believe it will morph and shift to a different position in our societies, in a way similar to the path feudalism took previously. It did not disappear, but transformed into today’s role of constitutional monarchies bound by law.
Before the legal profession was ready to discuss this type of issue, back in 2004 I published an article, entitled “Embracing the Negative to Achieve the Positive” in The European Lawyer magazine, pointing out what was perceived as wrong with the system (https://www.academia.edu/19744783/Embracing_the_Negative_to_Achieve_the_Positive)This preceded, by some four to five years, thinking about the limits of the legal profession such as those elaborated in the fascinating book The End of Lawyers by prof. Richard Susskind.
What makes your conflict resolution style unique?
I strongly believe that every individual has a unique mediation style and that every mediation will further influence it. Each mediation is unique, just as snowflakes are and a good mediator understands that. Every mediator is bound to be unique because if a mediator is true to himself or herself he or she will approach any problem in his or her own, unique way. For example, because of my countercultural background, some street-smartness gained on the rock and roll scene, lengthy education in different countries and my legal family background, my own blend of introvert and extrovert characteristics, will certainly result in me having some individual approaches and ideas!
What has been the most difficult challenge you have faced as a neutral?
In retrospect, all of the challenges seem just like a learning process, whereby one gradually matures. Certainly, one of the most unexpected for me was a situation that occurred early on in my career. It happened in a business mediation and developed from a simple request by the parties to turn on the air conditioning in the room where we were meeting. It was an unfamiliar setting for all of us, we were in a hastily adapted apartment that was being used on a temporary basis by the Mediation Center. Not knowing where the AC controls were in this old apartment, I scanned the walls, looked under the windows and around the AC machines, as I did so I heard noises behind me. When I have turned around I saw the parties on their feet pushing the table at each other. The chairs which they had been sitting on soon started tumbling to the floor and then the shouting started. I managed to calm the parties sufficiently for them to pick up the chairs and sit around the table but I was not able to get the conversation running again or otherwise remedy the harm to the process that had occurred. The parties decided to proceed with arbitration as per the dispute resolution clause that was applicable.
Back then I was a very young mediator and I have since learned a great deal about the importance of the environment, which I have used to great benefit in some difficult subsequent mediations. For example, when faced with a serious impasse, it can be helpful to stand up and move away from the table, allowing the parties to regain space and start behaving partially out of the scope of authority of the mediator. This technique can encourage parties to be more assertive achieving transition to the phase of ventilation more quickly thus breaking the impasse choking the process.
Besides this single example that I have selected here, in general, I still find it rather demanding to deal with ethically questionable episodes that are revealed in some mediations.
What is the most important mistake you see counsel make?
I generally see counsel that approach the mediation process with good faith and the utmost effort to sustain it. Having said that, I can provide an example of a situation where a counsel sent me through the roof, figuratively speaking. I will never know if it was a result of counsel not understanding the process or a deliberate attempt to undermine it. The situation arose when I was engaged by an important international mediation center as a convener, as they could not convene the parties themselves.
I spent a couple of months getting familiar with the matter and building trust with the parties, only to see a representative of one of the parties defeat all that effort with a single letter, drafted against my advice which I had provided based on my understanding of the issues behind the refusal to mediate. Instead of sending a carefully drafted, emotionally balanced and deferential communication, counsel decided to send out just another one of the positional threats that sounded impersonal and legalistic. I am not sure that his client was consulted, or even informed about my efforts and recommendations. The letter was not well received by the party that previously refused to mediate and it derailed the process.
My lesson here was that I might have had focused too much on the party that wished to avoid mediation and not enough on the party that was nominally willing to mediate. Regardless, it was really disappointing to see a colleague unable to contribute to, or even possibly intentionally undermine the rapprochement between the parties – by clinging onto the positional threats and impersonal communication. Having said that, my overall experience is that counsel are very helpful to the mediation process in general.
If you could change one thing about commercial arbitration, what would it be?
I never look at arbitration and mediation as belonging to the same group of ADR methods. Arbitration is a position-based process and mediation is not. Arbitration has a third person deciding on the outcome, rather that the parties achieving the settled outcome. I therefore, make a clear distinction between the two. I serve in both processes, but largely refrain from presiding as an arbitrator because I feel that the energy I spend is not proportional to the degree of service I can bring to the disputants.
However, since I do serve as a wingman from time to time, I can say that in my experience, some arbitrations are indeed more burdensome for the parties than litigation is, in terms of costs, complexity and duration. Because it is essentially a legal process, I think that the emphasis of the legal aspects in arbitration is not ideal in the ADR context. Equally, mediation is not free from its downsides. One of my early mediation trainers and a very experienced mediator himself said some twenty years after we have met and after he went through a mediation as a disputant for the first time, that he found the experience very difficult and much worse than he expected. He felt the process was painful and his feeling had apparently nothing to do with the mediator, or with the other party making it difficult, it was just simply difficult to go through the mediation.
Admittedly, his experience was based on the personal dispute, not a business one. Nevertheless, in order to prevent such experiences, I would like to assist the disputants in feeling as good as possible in the mediation setting and I think that one of the ways of doing this is actually not to focus only on the process itself. Of course, given the expectation of businesslike focus on the issue in dispute and the process itself, a mediator that departs from such focus risks appearing unprofessional. In other words, what I would like to help disputants do is peel away layers of the professional masks we wear all the time and be themselves to a greater degree even in commercial mediations.
Now let’s turn to some specific topics:
- What is your approach to cybersecurity and data protection in international dispute resolution?
I was always familiar with technology as I have worked with the IT industry early in my career and have myself been an eager early adopter. I think that one should neither completely rely on the technology nor fear technologies’ weaknesses. All software is bound to have some security issues, but that is not a reason not to go digital. Data can be lost and or compromised in the physical domain as well. Parties must set the standard of security they wish to achieve jointly and the mediator needs to adjust to their decision. As I am generally in favor of high transparency standards, I don’t have a personal urge to overprotect, but I will, depending on the circumstances, strive to adapt even to the highest security standards available.
- Preliminary / early decisions: do you attempt to identify and decide potentially dispositive issues early in the case?
Generally, yes. I think that “slicing the salami” in an arbitration has the potential to be very productive but I should say that identifying dispositive issues early does not necessarily mean that they will be decided early in most of the cases. I just think that identifying them is likely to be beneficial and deciding on them needs to be determined based on the legal and factual considerations of each case.
- Taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?
I have studied law in both civil and common law systems and do not favor either one on principle. I am mindful of the fact that procedurally, arbitration is often complex and it can sometimes be a burden for less sophisticated parties. I therefore agree with the attempts of the Prague rules drafters to bring increased efficiency into the arbitral proceedings. My general view is that it is best for the parties to settle in an interest-based proceeding, rather than to conduct a high-end position-based process to its end.
As I have mentioned above, I do participate as an wingman arbitrator but generally not as a presiding arbitrator because I believe that as a presiding arbitrator focusing on the positional legal process, I am not helping parties in the best most constructive manner.
What do you see as the next “big thing” in global dispute prevention and resolution?
Parties’ empowerment. It is already happening and the parties who take responsibility for their contribution to the dispute and who ramp up their communication skills will successfully retake control of their disputes. Parties that are skillful in recognizing all involved interests clearly and communicating properly about them are likely to diminish the overall number of unresolved disputes significantly. Therefore, ubiquitous, everyday application of the advanced communication techniques by the parties themselves is going to make a sea change in the dispute resolution field.
For which types of conflicts would you recommend ADR?
All, and I do not say that lightly, I have come to that conclusion based on my experience that regardless of the nature of the dispute, joint efforts to resolve issues are successful in any arena when the parties put in genuine effort. In some fields, the percentage of success might be lower, but communicating properly will continue to be of the utmost importance.
In your view, what makes CPR unique?
For me, CPR will remain unique as it was one of the first globally reputable mediation centers I was associated with. This happened at the time of cooperation between CPR and INTA while Peter Phillips was still involved, back in the mid Nineties. The degree of conviction in the strength of mediation that I have witnessed at CPR impressed me a lot and the great skills of the mediators associated with the Center has had a lasting impact on me.
Do you have any concluding remarks you would like to share?
It was Peter Phillips, whom I have mentioned above, who welcomed me warmly and took me for lunch during my first visit to the CPR offices. It was immediately after an INTA meeting where Peter spoke with strong conviction and unabashed emotion about the benefits of mediation. As someone with a background in rock culture, I was pretty much persuaded that this type of personal attachment to the cause is superior to the distanced ways so many of our colleagues choose to adopt.