Week 2 Mediation (I)

Question 1

What are the four approaches to dispute resolution?

Answer 1

• Litigation
• Arbitration
• Mediation
• ‘Other’

Question 2

What is the starting point in dispute resolution?

Answer 2

Litigation is the starting point.
However, all parties must agree to waive this right and agree to dispute resolution through arbitration or mediation

Question 3

What is the common feature of Alternative Dispute Resolution methods?

Answer 3

Consensuality - all parties must agree to waive their right to a fair trial

Question 4

What is an ad hoc arbitration agreement?

Answer 4

Ad hoc - the moment a dispute arises
All parties come together and have an agreement and say we don’t want to go to court, rather we want the arbitrator(s) to resolve this.
Consensually is there!

Question 5

What is arbitration clause agreement?

Answer 5

Agree to arbitration beforehand - by including an arbitration clause that any dispute that arises from this, then an arbitrator(s) will be appointed.
Consensually is there!

Question 6

What happens if a party goes right to litigation after a dispute arises when there is an arbitration clause in the contract?

Answer 6

The Court will say you cannot start litigation as in the contract there is an arbitration clause, and so the arbitration must be enforced.

Question 7

What is an ad hoc mediation agreement?

Answer 7

As the sure arises, you can agree as parties to mediate the conflict/dispute.

Question 8

Can you put a mediation clause in your agreement?

Answer 8

It matters on the law governing the contract. So, for example, in Dutch law a mediation clause is possible but not enforceable in court.
The reason for this being that:
E.g., one party goes to Court, and the other party says wait we agreed on mediation (as a clause in the agreement), and suppose that the Court says you must mediate first ( as stipulated in the agreement)… the issue here is that the party that doesn’t want to mediate can give the most minimal effort in the mediation and then says, alright we don’t have a consensus and the entire thing goes to Court anyway (so what really is the efficiency of having mediation clause in agreement)

Question 9

What must you do if there is no consensus on mediation?

Answer 9

You must go to litigation!
All parties must agree to not go to court (waive their right to a fair trial) to avoid litigation.

Question 10

What is mediation?

Answer 10

A structured process, whereby parties to a dispute, by themselves, on a voluntary basis, attempt to reach an agreement on the settlement of their dispute, with the assistance of a mediator (EU Directive definition)

Question 11

What is the most important aspect to mediate?

Answer 11

Voluntariness!
There must be the expression of consensually (waiver of the fundamental right to a fair trial in Court).
Thus, mediation means that you waive your right to go to Court, and ALL parties in the dispute must waive that right.

Question 12

What was the question(s) in ECJ Alassini?

Answer 12

Can legislators, as opposed to the parties themselves, mandate pre-trial alternative dispute resolution, in light of Article 6?
So, whether such a requirement aligns with Article 6 and the fundamental right to access to justice

Question 13

ECJ Alassini background

Answer 13

In Alassini, the issue was not directly about mediation, but involved a precondition requiring consumers to consult a specific government-established commission to resolve disputes before they could initiate court proceedings. This Italian law required both consumers and telecom providers to seek the commission’s advice or decision as a preliminary step.

Question 14

ECJ Alassini proceedings

Answer 14

• The ECJ found that, whilst the Italian requirement to undertake ADR before court proceedings might prejudice the implementation of the principle of effective judicial protection, this right is not unconditional.
• It was a legitimate objective of Italian law, and in the general interest, for parties to pursue less expensive methods of dispute resolution and to lighten the burden on the Court system
• The Court affirmed that such pre-court procedures could be mandated by national legislators, provided certain conditions are met to safeguard access to justice:
• 1. The outcome of the pre-court procedure (for instance, the commission’s decision) must not be binding on the parties, ensuring it acts as advice rather than a judgement
• 2. Participation in ADR mechanisms must not significantly delay subsequent legal proceedings. Therefore, the duration of these procedures must be reasonable. E.g., in Italian law there was a time period of 30 days for an out-of- court solution which was not seen as substantial
• 3. The statute of limitations for claims must be suspended while the pre-court procedure is underway, preventing time-bar issues.
• 4. Costs associated with these alternative procedures must be minimal or non-existent for the parties involved
• 5. Accessibility to these procedures must extend beyond electronic means
• 6. The possibility to request provisional or interim measures from the Court during these alternative proceedings must remain open
• When these six criteria are satisfied, legislators can require parties to undergo specific procedures before initiating court action.
  !!However, crucial to note that Alassini case did not directly concern mediation, but rather a distinct form of dispute resolution involving a government-formed commission!!

Question 15

ECJ Menini

Answer 15

Question: whether a national law requiring parties to engage in mediation before initiating court proceedings was compatible with EU law, specifically in the context of consumer disputes.
Proceeding: The Italian legislation in question mandated that, for certain types of contractual disputes, including banking and financial contracts, parties must first attempt mediation as a condition precedent to filing a lawsuit in Court
Ruling: This law mandating mediation as a preliminary step to litigation did not violate the principle of effective judicial protection as long as you meet the six requirements of Alassini

Question 16

Confidentiality in litigation

Answer 16

Litigation is public and accessible to everyone - no confidentiality.

Question 17

Confidentiality in arbitration

Answer 17

Court parties have to agree that the arbitration proceedings will be confidential, otherwise it can be public.

Question 18

Confidentiality in mediation

Answer 18

Mediation is always confidential, and a good mediation agreement always contains a confidentiality clause (which also binds the mediator(s))
Note: you cannot ask the mediator to testify in Court, BUT in the Netherlands, a mediator will have to speak out if the judge insists because the judge is not bound by the mediation agreement and under Dutch law, a witness must answer questions and testify. In reality, in the Netherlands, judges do recognise the special status of mediation so they will not insist on the mediator to reveal topics, but they may ask behind doors if they can speak about it in open court and if not, why not

Question 19

What are the two mediation styles

Answer 19

Evaluative style
Problem-focused style

Question 20

Evaluative style of mediation

Answer 20

• Used commonly in the U.S.
  More interested in the substance of the conflict
• Focus is on agreeing on that substance
• Evaluative style type of sessions starts off with mediator and parties in the same room, then both parties go to a separate room and mediators goes between the two parties, and acts as a messenger
• In such a setting, mediator is much more active and much more than a facilitator
• Mediator here can also suggest solutions

Question 21

Problem-focused style of mediation

Answer 21

European-style
Session with both parties present, and their lawyers, and the mediator(s)
Most cases are led by one mediator, and in some cases there is a co-mediator
They convene in one room and the mediator leads the discussions
The parties begin their stories and gradually they discuss what is their issue and then what kind of solutions could be available to solve those problems
The ‘problem-focused’ EU style mediator wants to increase mutual understanding of those parties
The focus of the mediator here is the underlying interest - i.e., what drives them/what helps them
Here they just facilitate discussions but don’t give their own solutions/opinions

Question 22

What is the Harvard theory of negotiation?

Answer 22

It is interest-based, so two steps:
1. separate the people from the problem.
2. focus on interests, not on positions
- box of oranges/people’s need for certain parts of the orange
3. invent options for mutual gain
4. use objective criteria