CONCILIATION: Tools, Techniques and Mindset

CONCILIATION: Tools, techniques and mindset

EJTN February 18, 2019 Brussels Patrick Van Leynseele lawyer, arbitrator and mediator

Justice Sandra Day O'Connor (former Justice Supreme Court USA):

“ The courts of this country should not be the place where the resolution of disputes begin. They should be the places where disputes end-after alternative methods of resolving disputes have been considered and tried. ” 3

Before six beers After six beers six After

After six beers

beers six Before

5 2 or three colums ???

Voltaire by

Salvador Dalí. WHAT PROCESS CHOICES DO PARTIES HAVE ?

Least Structured Consensual Least Formal Parties in control NEGOTIATION CONCILIATION MEDIATION HYBRIDS : • Arb-Med • Med-Arb ARBITRATION LITIGATION Most Structured Adversarial Most Formal Third party in control Other ADRs:

▪ Post arbitration mediation ▪ Binding mediation ▪ Non-binding Med-Arb ▪ « Medaloa » (Mediation & Last Offer Arbitration) or « Base-ball arbitration » ▪ Med then Arb ▪ Shadow mediation ▪ Co Med-Arb

10 Or even :

• Roll the dice • Heads or tails • (African) « palabre » • Refusal to fight – abandonnement • Violence – war • Etc.

11 • Traditionnally:

The « A » in ADR refers to an Alternative to justice system

• More constructive:

Look for Appropriate means of Dispute Resolution

12 Fundamental distinctions

- Intervention of a third party or no? - Contractual logic (negotiation - mediation - conciliation) - Jurisdictional logic (courts – arbitration – third party binding decision) - Approach needs & interests >< Rights & duties

13 Truth ? Justice ?

– The mediator Is not looking for what is right or wrong – The expert or conciliator may advise on what is "right" or “correct" – The mediator wishes the parties to find what is best for them (≠ what the law says or a court outcome would be) – The expert or conciliator atempts to find an agreement in line with the advice they have provided – The juge and arbitrator decide; they impose THEIR views based upon the rule of law

• Right-duties / interests-needs • Factors time and costs • Decision by the parties/a third person • Procedural structure • « Win/loose » / Resolve • Confidentiality / Public hearings

• Being informed about dispute resolution options • Being provided with good advice about which ones to use in a particular case • Quick, cost effective resolution of their disputes with least amount of risk

• Neutrality • Is not the parties’ counsel • Does not (a priori) formulate proposals • Psychology and Communication • Absence of powers / Moral Authority • Empathy • “Leader”, directive or not • Focuses on interests and on priorities • Manages climate and emotions

Guided choice

• Stakeholder mapping • Issues? • Interests, needs, concerns? • What caused the deadlock? • Expectations? • « Style » of mediation/mediator preferred? • Design process (incl. deadlock, combined processes) • Action plan (calendar, preparation, info, exchange) Negotiation phase : the mediator as process designer

Directive (process)

B. D. Evaluative (

( Non

Subject Directive Directive

- Non-Evaluative Evaluative

Evaluative

Subject matter

A. C. matter

) Facilitative Facilitative

Non-Evaluative Evaluative )

Facilitative (process) The Power of the mediator

« The mediator’s presence in the room changes the dynamics in the relationship between the parties… We cannot afford to be blind to this power. The mediator is the most powerful person in the room, »

(as the judge is the most powerful person in his courtroom)

(Rooney (2015) ‘Rebooting mediation by detaching from illusions of neutrality, just outcomes and balanced power) WHY ?

❑ Control over the process (ground rules, agenda, meeting protocols, etc.) ❑ Party dependence on / trust in the mediator ❑ Mediator’s normative and persuasive power ❑ Reframing techniques ❑ Use of caucuses, etc. ❑ Carry the process forward ❑ Declaring deadlock What about the courts? What can be done tot assist courts? • Courts provide rule-based justice when parties fail to agree • Active case management to : - Encourage early resolution of disputes - Encourage the parties to consider all their options other than court imposed solutions - Reduce trial time - Ensure more effective use of judicial resources - Establish trial standards - Monitor case loads - Develop information technology support • Court-connected ADR processes (« multi-door » concept) • Use of hybrid processes • Split cases between (legal) principles and other issues (e.g. damages) • Limited by principles of contradictory debate Indiciae of « mediability » The parties • There are personal problems, ego (emotional dimension). • One or several parties are agressive • One of the parties is economically weak (survival of the entreprise) • The profile/personality of the persons and of the lawyers • The parties take very strong positions • One of the parties has offered mediation Indiciae of « mediability » Relations between the parties • There is no more dialogue / Misunderstanding • The parties had a relationship based upon mutual confidence/friendship • There is potential for future relations • They need a workeable solution for the future Indiciae of « mediability » Limits of trials • A third party has (indirect) interests in the case • The parties have common interests • The context of the conflict is a microcosm • The decision will not solve the underlying conflict (it could even make it worse) Indiciae of « mediability » Negative consequences of a trial • The parties loose control over outcome (no influence over the solution) • Value at stake is too low to justify the cost and risks of a trial • The dispute is too complex • The result is too unpredictable, in fact or legally • There is a request of an expert investigation • A quick solution is necessary • Trial publicity is going to be harmful • Difficulties of enforcement of the judgment • An appeal is inevitable (long duration and important additionnal cost) Indiciae of non-mediability (but even then…?)

• Excessive aggresivity • Excessive economic weakness. The solution is going to be « black or white » - judicial risks • Need to create case law • Question of principle (!) • Time plays against the parties • Proceedings are used as a means of pressure Promoting Party Self-Determination

Decisions about what the conflict resolution method chosen should be about, must be governed: - not by a pretence of neutrality - by the principle that parties should have maximum control over the outcome, given their context and situation What is self-determination?

The ability of parties to ❑ Craft their own solutions ❑ Voice their own thoughts and opinions ❑ Arrive at their own decisions ❑ Have adequate legal and other relevant information ❑ Understand their risks/alternatives to a negotiated agreement ❑ Understand their underlying needs & interests Techniques for promoting self-determination

❑Compulsory attendance of court hearing devoted to case management / first mediation session ❑Use levels of organisational authorithy to apply pressure ❑Influence funders of litigation, e.g. insurers ❑Terminate the process ❑Create a safe environment ❑Be inventive concerning court expenses as sanctions for trials pursued without prior ADR attempts To conclude • The rule of law requires fair and just resolution of disputes. • However it also requires that the process, particulary in relation to civil disputes, be cost effective. • The primary goal of a civil justice system is the just resolution of disputes through a fair but swift process at a reasonable expense. • Delay and excessive expense will negate the value of an otherwise just resolution • Systemic delay and expense will render the system inaccessible. The public must have confidence in not only the outcomes but in the processes of that litigation. 1. PRELIMINARY STEP Meeting Choice of mediator

2. PROCESS 3 FOLLOW UP

• Create confidence - • Drafting validation • Facts analysis • Performance • Options / alternatives • Dialogue / negotiation • Decision / clarification

• Authority required • Counsel ? • Parties’ experts ? • Insurer ? • Number of persons

© 2018 Patrick Van Leynseele Create confidence Validate the Process S MEDIATOR T E P A B 1 Create confidence Validate the Process S • Presentation • Verification of parties’ authority T • Signature of Mediation Agreement • Role of the Mediator and limits E • Role of attorneys P • Decisions in the Parties’ hands • Caucus • Confidentiality 1 • Communication rules

© 2018 Patrick Van Leynseele 1 Communication Rules S • Do not interrupt / Everyone gives his ownversion • Every person speaks for herself T • Mutual respect E • Role of Counsel P • Active Listening • Questions • Detailed analysis 1 MEDIATOR

A B Facts analysis S • Everyone gives own version / Perception • Clarification T • Active listening E • Summarise / Reformulate / Validate P • Define real disputes • Discover expressed & underlying interests • Build upon agreed items 2 Options and Alternatives S • Needs and interests / rights and duties • Scale of values and priorities T • Different Solutions E • “Brain Storming” P • “Increase the pie” • Long term relations • Caucus 3

Identification of issues

Perception Perception Needs Needs Agreed items Options and alternatives S Principled negociation: T • Invent options in view of a mutual gain E • Concentrate on interests behind les positions P

A B Dialogue and Negotiation S • Clarify stakes and positions • Elicit proposals T • « Step by step » approach E • Generate solution oriented dynamics P • Use mediator’s “toolbox” • Create doubt about inflexible positions • Reminder of: why mediate? 4

• Drafting • Performance

© 2018 Patrick Van Leynseele Decisions and clarification S • Summary of the understanding • Clarifications T • Elimination of uncertainty E • Force to think about other (minor?) issues/ consequences P • Sanctions if not performed voluntarily? • Drafting agreement 5 © 2018 Patrick Van Leynseele SOLUTION CAUCUS Process

• Provided for in the mediation agreement • Reminded during installation phase • Mediator explains how and why • Obtain agreement in principle • Obtain agreement as to when to hold it • Never with one party alone • Upon request of the mediator or party(ies) • Mediator controls the process

• Obtain additional information • Verify party’s position • Obtain a change in attitude • Test hypothesis for solutions/offer up • Reassure/show empathy/ventilate emotions • Reality test – question strength of position • Questions as to hidden interests and needs • Look for additional alternatives

• Change dynamics • Restore confidence (process, mediator) • Ellicit offers • (Re)frame/complete proposals • Questioning the perceived need for confidentiality • Handle diverging views among one party • Change climate discussions/dynamics • Solving an impasse

• Hourly fee • Success fee? • Cost compared to trial and arbitration • Costs shared 50/50

• 75 to 80 % agreements • N.B.: after parties agree to go to mediation • «Mandatory » mediation: 60%

EJTN February 18, 2019 Brussels Patrick Van Leynseele lawyer, arbitrator and mediator