Commercial Disputes cover a wide spectrum – intra company disputes, partnership disputes, disputes between joint venture parties, disputes over contracts and performance of contracts, technology disputes, workplace disputes, industrial disputes and much more. How do trained mediators in Europe manage and facilitate the resolution of such disputes as compared to Australia?
European Mediation training places a lot of emphasis on such ADR principles as –
– Mediation helps foster social harmony;
– Mediation is less abrasive than litigation to resolve disputes;
– Business is better off by utilizing ADR (alternative dispute resolution) in preference to litigation and binding arbitration methods;
– Mediation is easy to access at any time in the dispute and is comparatively inexpensive;
– ADR foster the spread of information to improve inter-party knowledge and awareness.
European Mediation Training is done over an very intensive 11 days in contract to 4- 5 days in Australia. The trainees are strongly grounded in both theory and practice. In Australia the trainee mediators are only required to do two simulated mediation sessions for assessment, each one lasting for about 1.5 hours; whilst in Europe they are required to to do a minimum of two with each session lasting 4-5 hours.
The European model does not favour the shuttle style facilitated negotiation mediation model now strongly in vogue in Australia with lawyer and ex-judge mediators. In fact the Europeans don’t believe that his style of mediation is really mediation. They tend to favour a more robust, dynamic and flexible use of mediation models that permit the mediator to employ a bigger repertoire of skills and strategies. They regard the Australian model as quite limiting and confining.
The European approach openly recognizes that sitting under the surface of a dispute is usually a hierarchy of human emotions stemming from –
– Wants
– Needs
– Perceptions
– Assumptions
– Concerns
– Beliefs
– Values
– Fears
This leads each party to the dispute to hold certain strong convictions that drive their positions and attitudes in the dispute.
The shuttle style of mediation heavily used in Australia by Australian lawyer mediators, where they spend limited time in joint session (parties in same room and able to talk directly to each other) and maximum time in caucus (parties separated into their own private rooms) fails to recognize and address these underlying human factors and focus only on the tip of the iceberg – the more obvious symptoms of the dispute. They focus mainly on the money and what each party is will to pay or accept in order to settle the dispute. They tend to avoid the human emotions and keep them out of sight.
The European model recognizes that unless the underlying human emotions that are driving the dispute are uncovered and addressed, there will never be any resolution of disputes that fosters social harmony and greater understanding and awareness. Shuttle style mediation that results in a deal being struck about the money to be paid invariably leave one or more parties feeling resentful, cheated and unhappy because they were never able to express their emotions or permitted to resolve their emotional needs as part of the process to resolve the dispute commercially.
The Australian model of mediation tends to give too little time and attention to the exploration phase and tends to heavily focus on the negotiation phase and bringing the parties to a negotiated outcome and final agreement.
The European model accepts that most of the time disputes are not “just about the money”; they are invariably being driven by deeper and more complex emotional issues. The job of the skilled mediator is to uncover what lies beneath the tip of the iceberg and help the parties “resolve” their dispute on both the emotional level and the financial level.
The European model favours keeping the parties in joint session as much as possible and also favours the use of co-mediators rather than a lone ranger mediator.
From my own personal experience working with commercial disputes over the last five years, I strongly favour the European model and apply that model to how I work with managing and resolving commercial disputes.
Christopher Whitelaw
Commercial Disputes Management Centre
Lane Cove | Sydney | NSW | Australia
612 942 8213
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