Drafting Mediation Pledges, Mediation Clauses and Hybrid Clauses

Drafting Mediation Pledges, Drafting Mediation Pledges, Negotiation and Mediation Negotiation and Mediation

Clauses and Hybrid ClausesClauses and Hybrid Clauses

Willem MEUWISSENAttorney at Law Antwerp BarMediator FBC, BBMC, VOBA

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MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

Conflict Resolution : Typology

Partial : Acknowledgement

Remission of DebtRenouncement of Claim

Interparty : Negotiation, Mediation Supraparty : Judge, Arbitrator

Binding Third Party Decision Hybrid : Med-Arb, Arb-Med, Medaloa

© 2010 - Willem MEUWISSEN

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Advantages of Interparty Conflict

ResolutionKeep Control over the SolutionRange of Possible SolutionsCreativity in Business SolutionsOptimization of Possible SolutionsPreservation of Business RelationshipsSpeed, Discretion, Cost Efficiency


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Inconvenience of Interparty Conflict

ResolutionSettlement remains uncertain !

Solution : Hybrid Conflict Resolution

Combine the advantages of Interparty Conflict Resolution with those of Supraparty Conflict Resolution!


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How to Implement in your Company ?

1. Unilaterally : ADR – Pledge (in Corporate Policy Statement)

2. Mutually : Three Stage – Conflict Resolution Clause (in General Conditions (?) and Contracts)


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Mediation Pledge ADR - Pledge

Idea : CPR(International Institute for

Conflict Prevention and Resolution)

Rationale :The proposal to negotiate or mediate a conflict should not be perceived as a sign of weakness


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CPR – Corporate Policy Statement on

Alternatives to Litigation©

“In the event of a business dispute between our company and another company which has made or will then make a similar statement, we are prepared to explore with that other party resolution of the dispute through negotiation or ADR techniques before full-scale litigation. If either party believes that the dispute is not suitable for ADR techniques or if such techniques do not produce results satisfactory to the disputants, either party may proceed with litigation.”

More than 4.000 operating companies have commited to this pledge.

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Other Examples :

Belgium : BECI and BBMC and VOBA “Charter for Efficient Conflict Resolution” www.500.be

International : International Trademark

Association (INTA) www.inta.org


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Three Stage Conflict Resolution Clauses

Negotiation

Mediation

Arbitration


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First Stage : Negotiation

“Any dispute arising out of this contract and which can not be resolved in the normal course of business shall be resolved through confidential negotiations between parties’ executives, thereto adequately appointed. A conflict may be notified in writing to the other party and the other party is to reply in writing within 15 days after receipt. Both notice and answer shall contain the position and the arguments of parties as well as the identity of the executive who is to negotiate. Within 30 days after delivery of the initial notice, the executives shall meet. The contents of the negotiations are confidential.”


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Integrative Negotiation

Distributive Negotiation

Principled Negotiation


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Why do Negotiations Fail ?

Strategic BarrierAgent/Principal BarrierCognitive BarrierReactive Devaluation

Robert H. MNOOKIN : Why Negotiations Fail : An Exploration of Barriers to the Resolution of Conflict (8 Ohio St. J. on Disp. Resol. 235 1992-1993)


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Second Stage : Mediation

“If the conflict has not been resolved by negotiation within 45 days after delivery of the initial notice of conflict, parties shall endeavour to settle the conflict by mediation according to the mediation rules then currently in effect of (mediation institute)”


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Second Stage : Mediation

Bemiddeling/Mediation

Binding/not Binding

Appointment of ADR Institute

(Who / What / Where / When / Language)


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Third Stage : Arbitration

“If the conflict has not been resolved by mediation within 45 days after the request for mediation to the mediation institute, the conflict shall be resolved by arbitration according to the rules of (arbitration institute)”


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Third Stage : Arbitration

Usually 1 instance onlyAccording to the Law

And also Amiable CompositionTreaty of New York


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Examples of Clauses

Belgium : BBMC VOBA CEPINA

France : CMAP

Netherlands : NMI ACB

United Kingdom : CEDR CIArb LCIA LMAA

Germany : BMWA

International : ICC CPR AAA


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Hybrid Clauses

Med-Arb Arb-MedMedaloa


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ARBITRATOR = MEDIATOR


Hybrid Clauses : Med-Arb

1. MediationInterest-Based !No Private Sessions (caucus) !(Art. 6 ECHR)

2. Arbitration / Amiable CompositionIf Mediation FailsTime and Cost EfficientAmiable Composition : Interest-Based ?


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Hybrid Clauses : Arb-Med

1. Arbitration / Amiable Composition

Case is Pleaded

Award Rendered / Not Communicated !

2. Mediation

Standpoints are known (Arbitration)

Analysis of Interests, Options and SolutionsPrivate Sessions (caucus) Allowed

3. No Settlement Award© 2010 - Willem MEUWISSEN

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Hybrid Clauses : Medaloa

1. Mediation

2. No Settlement : Parties’ Final Offer in Writing to Mediator

3. Arbitration : Mediator/Arbitrator chooses the final offer he finds most reasonable


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Hybrid Clauses

Private Sessions (caucus)Facilitating / DirectiveAmiable Composition

Tailor Made !


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Thank you for Thank you for

your Attentionyour Attention

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Documents

Drafting Mediation Pledges, Mediation Clauses and Hybrid Clauses