Startups and technology are dynamic and fast-paced environments. Disagreements are inevitable. The need for effective dispute resolution mechanisms is paramount when it comes to intellectual property disputes or conflicts among co-founders. One such mechanism that has gained significant importance is mediation. Mediation, as an alternative dispute resolution (ADR) method, offers a unique set of advantages that make it particularly well-suited for the complexities of the startup and tech landscape, notably in unregulated or underregulated industries.

The Nature of Disputes in the Startup and Tech World:

Startups and technology companies often operate in an environment characterized by innovation, uncertainty, and rapid growth. With high stakes and intense competition, disputes can arise from various sources, such as contractual disagreements, intellectual property disputes, founder disputes, and conflicts with investors or partners. Unlike traditional industries, the intricacies of the startup ecosystem require a nimble and efficient approach to dispute resolution.

The Traditional Alternatives and Their Limitations:

Historically, litigation and arbitration have been the go-to methods for resolving disputes. However, these traditional avenues have significant drawbacks in the startup and tech world. Litigation can be time-consuming, expensive, and public, which may not align with the need for swift resolutions and confidentiality in the tech sector. Arbitration, while more private, can still be costly and lacks the collaborative nature that startups often need to maintain relationships.

The Unique Benefits of Mediation:

1. Speed and Efficiency: Mediation is known for its efficiency. In contrast to the lengthy court processes, mediation allows parties to swiftly address their issues and find mutually agreeable solutions. This is crucial in the fast-moving startup environment where delays can be detrimental.
2. Confidentiality: Startups often deal with sensitive information, and publicizing disputes can harm their reputation or reveal trade secrets. Mediation provides a confidential setting, ensuring that the details of the dispute remain private.
3. Preservation of Relationships: Maintaining positive relationships is essential in the interconnected world of startups and tech. Mediation focuses on collaboration and finding common ground, fostering an environment where parties can preserve their relationships even after a dispute.
4. Customization of Solutions: Mediation allows parties to craft creative and customized solutions that may not be possible in a courtroom. This flexibility is particularly beneficial in the tech industry, where innovative problem-solving is a core value.
5. Cost-Effectiveness: Compared to litigation and arbitration, mediation is often more cost-effective. This is crucial for startups with limited resources, allowing them to allocate their funds more efficiently.
6. Expertise and Industry Knowledge: Mediators with expertise in the startup and tech sector bring a nuanced understanding of industry-specific challenges. This ensures that the resolution process is informed and tailored to the unique aspects of the technology ecosystem.

Co-founder and Intellectual Property Issues:

1. Misalignment of Vision: Co-founders often come together with a shared vision for the startup. However, over time, differences in goals or strategic direction may arise, leading to conflicts. Clear communication and establishing a shared mission early on can help mitigate this risk.
2. Equity Distribution: Deciding on the distribution of equity among co-founders is a critical decision that can impact motivation, commitment, and overall team dynamics. Disputes may arise if expectations regarding equity are not clearly communicated and agreed upon from the outset.
3. Roles and Responsibilities: Ambiguity in defining roles and responsibilities can lead to confusion and conflicts. Establishing a clear delineation of each co-founder's responsibilities and expectations helps prevent disputes over workload and decision-making authority.
4. Exit Strategies: Disagreements about the future direction of the startup or the timing and terms of a potential exit can strain relationships. Co-founders should discuss and align on exit strategies, such as mergers, acquisitions, or IPOs, to avoid disputes down the line.

Intellectual Property Issues:

1. Ownership of IP: Clear documentation of the ownership of intellectual property is crucial. Ambiguities in agreements or a lack of clarity regarding who owns what can result in disputes over the use and commercialization of IP assets.
2. Employee Contributions: Startups often rely on the creativity and innovation of their employees. Disputes may arise if the contributions of co-founders or team members to the creation of intellectual property are not properly acknowledged or compensated.
3. Confidentiality and Non-Disclosure: Protecting confidential information is paramount in the tech industry. Disputes may arise if there are breaches of confidentiality or disagreements over the use of proprietary information. Having robust non-disclosure agreements (NDAs) in place can help prevent such issues.
4. Competing Ventures: Co-founders may engage in side projects or other ventures outside the startup. Conflicts can arise if these activities are perceived as competing with the interests of the startup. Clear guidelines on acceptable outside activities can help prevent such disputes.

Prevention and Mitigation Strategies:

1. Clear Agreements: Drafting clear and comprehensive co-founder agreements, specifying roles, responsibilities, equity distribution, and exit strategies, can help prevent misunderstandings and conflicts.
2. IP Policies and Agreements: Implementing robust IP policies and agreements, including IP assignment agreements for all team members, sets the foundation for a secure and well-protected intellectual property portfolio.
3. Regular Communication: Open and regular communication among co-founders can help address issues early on, preventing them from escalating into major disputes. Regular check-ins and transparent discussions about the company's direction and challenges are crucial.
4. Legal Counsel: Seeking legal advice during the formation of the startup and regularly consulting with legal professionals on IP matters can provide valuable insights and ensure compliance with relevant laws and regulations.
5. Mediation and Dispute Resolution Mechanisms: Including provisions for mediation or alternative dispute resolution mechanisms in agreements can offer a structured process for resolving disputes, promoting collaboration over adversarial approaches.

By proactively addressing co-founder and IP issues through clear agreements, effective communication, and legal safeguards, startups can create a foundation for sustained growth and success while minimizing the risk of disruptive disputes.

ADR Center (https://adrcenter.com/) is the largest and leading mediation provider in continental Europe in the field of mediation services, with extensive training experience gained through the delivery of a sophisticated curriculum of excellence. Established in 1998, ADR Center has become a leading consulting organization specializing in the design and implementation of international projects in the fields of Conflict Management, Alternative Dispute Resolution (ADR) and mediation processes, and is sought for its international expertise in providing technical assistance for creating state-of-the-art mediation training programs. ADR Center takes pride in serving clients like the European Union and European Parliament, the World Bank, the International Finance Corporation (IFC), the International Organization for Migration (IOM) by UN Migration– Switzerland, the United States Agency for International Development (USAID), the European Bank for Reconstruction and Development (EBRD), Government of Dubai, the Council of Europe, etc.

The accumulated experience over the years has led to the development of ADR Center Academy, which is the training division of ADR Center. ADR Center Academy has more than 20,000 hours in the mediation training classroom and has delivered numerous courses in the field of negotiation, mediation, conflict management and dispute resolution. These include the delivery of mediation training and capacity-building workshops in English and Arabic, as certified by the Continuing Legal Professional Development Accreditation of the Legal Affairs Department of the Government of Dubai. To date, more than 15,000 persons from 5 continents have been trained by the ADR Center in line with the highest international mediation and training standards. ADR Center’s International Mediation Training is accredited by the International Mediation Institute (IMI) for meeting their competency criteria for Certified Mediation Training Programs (CMTP). To this end, the ADR Center Academy’s mediation training program is offered in English and Arabic in Dubai, as reflected on the IMI’s website.

To facilitate best the learning needs of interested persons, ADR Center has further developed an online teaching platform that includes videos, manuals, polls, presentations and other information integrated with real-time communication possibilities, as well as with the application of quizzes, tests and other assignments. By having this online platform, ADR Center Academy is providing additional value to participants enrolled in various training programs who have the possibility to engage with the training faculty, fill in pre-course assessment surveys and access materials to be as prepared as possible for the course.

Graduates of previous mediation training programs organized in 2022 and 2023 in Dubai by the ADR Center in partnership with the Legal Affairs Department of the Government of Dubai reflect on their experience throughout ADR Center courses and interaction with the platform by qualifying it as “brilliant”, “fantastic” and “one of the most useful trainings ever attended for its practicality and relevance”. Deploying such a world-class cloud-based learning management system designed specifically for negotiation, mediation, and other programs related to dispute resolution with minimal technical headaches and maximum efficiency offers a new, revolutionary way of teaching mediation that is focused on the comprehensive development of skills while offering asynchronous support.

The online programs offered by the ADR Center for Dubai and the UAE attracted hundreds of participants and generated a lot of interest, extended discussions and a high level of satisfaction. For example, on November 22^nd 2023, a one-hour highly interactive webinar was organized as an “introduction to mediation” to discuss the fundamental elements of mediation and what differentiates this process from other dispute resolution processes in the UAE and the world. The participants also learned more about ADR Center’s approach to mediation training, the main building blocks and a comprehensive training timeline.

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Another two-hour successful webinar, “Introduction to Mediation: The New Federal Law on Mediation”, was held by ADR Center on 8th December 2023 and accredited with 2 CLPD points. The participants found the information shared valuable and helpful for their legal practice because the webinar stimulated creative thinking and paved the way towards possible opportunities associated with the development of ADR and mediation in Dubai and the UAE. This was possible because of the training faculty’s preparation and competence, as well as the participating lawyers’ high level of engagement with comments, questions and opinions, thus reflecting that in Dubai, there is a community of bright lawyers who are passionate about applying mediation and through this – transform the way conflicts are dealt with in the United Arab Emirates (UAE) towards more collaborative and peaceful means.

All of the above is further complemented by the integration of the utmost innovative tools and materials developed by ADR Center that are designed to ensure robust uptake of mediation practices in both public and private settings. Part of these tools include the “Three-Track Methodology in creating an effective mediation ecosystem across 70 variables”, which offers a step-by-step framework that strategically structures and articulates the necessary components for a successful mediation ADR environment.

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Along with it, ADR Center trainings further include practical tools and a comprehensive methodology that guides future mediators through the most relevant skills and tools for each of the particular stages – ADR Center’s 5x5 mediation matrix.  

ADR Center Academy’s upcoming trainings in Dubai:

-    ADR Center International Accredited Mediator Training Dubai (English) - 22-23-29-30 April & 6 May 2024

-    ADR Center International Accredited Mediator Training Dubai (Arabic) - 24-25 April & 1-2-7 May 2024

-    Assessment for IMI Certified mediators – new dates will be announced soon

-    Mediation Advocacy for lawyers workshop - new dates will be announced soon

CLPD points are accredited for each of the courses offered.

Join in today and get access to world-class, cutting-edge training materials that ensure the development of new skills for getting the most out of amicable dispute resolution.

This article was prepared by Mahmoud Arif and Constantin-Adi Gavrilă.

Picture any school in any community in the world, and you are sure to imagine a group of children learning and playing. Whenever there is interaction, there will always be room for conflict. How do children manage conflict? This question is difficult to answer, as the presence of adults in an environment such as a school means a great deal of influence or, better said, interference that shapes the children’s approach to conflict and the resolution of issues. Regardless of cultural or situational variations, the consistent aspect is that children in any setting have the chance to build essential knowledge and skills for real-world problem-solving through various conflict resolution methods. In today’s increasingly diverse and interconnected world, fostering open dialogue and promoting conflict resolution skills are vital, and schools play a crucial role in shaping future generations By creating a culture of resolving conflict through meaningful dialogue, with and without the involvement of mediation, educational institutions can empower students to address differences, cultivate empathy, and build harmonious relationships. This blog post explores schools’ significant role in fostering dialogue and highlights the benefits of creating a culture that embraces mediation through listening and promoting fairness and justice.

What is dialogue without listening?

Effective communication forms the foundation of mediation. It allows us to engage in difficult conversations, go beyond our assumptions and biases, speak without enabling the defensive mechanisms of the listeners and listen in a way that allows us to be influenced by what we hear. Schools that prioritize and encourage open dialogue among students, teachers, administrators and other stakeholders often cultivate the benefits of mature emotional regulation and healthy relationships. It creates an environment where conflict is approached openly and constructively, and early warning mechanisms are in place to prevent conflict from spiraling out. Creating safe and inclusive spaces where students feel comfortable expressing their thoughts, concerns, and perspectives is essential to achieve this. By establishing platforms for dialogue, such as open forums, classroom discussions, conflict-resolution training, or dedicated mediation sessions, schools can promote healthy expression of opinions, thereby reducing the likelihood of conflicts escalating. Emphasizing active listening and respect for diverse viewpoints fosters empathy, understanding, and critical thinking, allowing students to engage constructively in conflict resolution. From our experience, this is best done proactively by offering training before the conflict arises.

Developing Conflict Resolution Skills

While conflicts are inevitable in any social setting, schools can start early and equip students with essential conflict-resolution skills to address differences effectively. Incorporating conflict resolution education into the curriculum helps students understand the nature of conflicts, their underlying causes, how they develop before becoming visible, and appropriate approaches. What would this look like realistically in a school? It is often best to address the topics explicitly by teaching negotiation, mediation, and problem-solving techniques so that we empower students with practical tools for resolving conflicts peacefully. It is important to increase the student’s awareness of the costs of conflict, including the hidden ones that are often very expensive for many that get to be affected. In a way, the conflict can be like a fire spreading dangerously without control and can draw others that would not be initially affected by it. So, these skills extend beyond the school environment and prepare students for the real world and to navigate future challenges in various personal and professional contexts – in other words, to prevent those fires from spreading. To do this, they will need emotional intelligence, empathy, and perspective-taking, all values nurtured by conflict resolution education. This way, students can develop into compassionate and considerate individuals. Once the skills are there, the best opportunities to demonstrate the learning in school are when conflicts arise.

Embracing Restorative Practices

As a mediator, it becomes increasingly difficult to practice what you preach when you are under a lot of emotional pressure from parents and students. Nonetheless, restorative practices offer a proactive approach to addressing conflicts within schools to ensure all parties feel heard without rushing to take action that will silence the tension. By focusing on repairing harm and rebuilding relationships, these practices help create a culture of empathy, accountability, and personal growth. Schools are the convener of this culture, and students who experience justice at a young age can potentially develop into active citizens in the future who pursue careers related to this field. Restorative circles, peer mediation programs, or conferencing techniques enable students to engage in structured conversations where all parties can express their feelings and perspectives in a safe environment. These practices encourage responsibility, promote understanding, and facilitate the development of problem-solving skills. Embracing mediation in schools strengthens social bonds and contributes to creating a supportive community that values dialogue and collaboration.

Teacher and Staff Training

Schools must provide adequate training for teachers and staff to foster dialogue and prevent and mediate conflicts. It would not be very honest of a school to promote mediation amongst students while the adults who work there do not experience the same level of listening and understanding. Educators play a crucial role in modeling positive communication, peaceful approaches to conflict and effective conflict-resolution skills. Professional development programs can equip teachers with the necessary knowledge and strategies to facilitate dialogue, manage conflicts, and guide students toward resolution. There are instances where an adult should get involved. Still, others perhaps call for a peer mediator – another student that will sit down with the parties in a conflict to discuss the facts, the issues, the interests and the way forward. By promoting a culture of continuous learning and growth among educators, schools ensure that mediative practices remain current and effective. Through ongoing training and support, teachers become adept at fostering dialogue, promoting understanding, and creating a nurturing environment where students can develop the skills necessary for mediating conflicts.

In conclusion, schools have not only a real opportunity to foster dialogue and create a culture where conflict calls for mediation before anything else but also a profound responsibility for shaping the future of our world. This responsibility is shared with families and other institutions. But for now, educational institutions can play a pivotal role in shaping students’ abilities to prevent and navigate conflicts constructively by encouraging open dialogue, developing conflict resolution skills, embracing restorative practices, and providing teacher and staff training. Building a culture that values dialogue and conflict resolution benefits individual students and contributes to the overall well-being and harmony of the entire school community. By prioritizing these essential aspects, schools become transformative spaces that empower students to engage in meaningful dialogue, bridge differences, and create a more inclusive and peaceful society. How different would the world be if children learned such practices from a very young age? Finally, picture any school in any community in the world 10, 20, or 30 years from now. What would you like to see regarding effective conflict prevention and resolution?

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Link to article - Kluwer Mediation Blog: https://mediationblog.kluwerarbitration.com/2023/07/14/schools-the-playground-for-learning-mediation/

This article provides an overview of specific situations or challenges that may arise during the mediation process, necessitating the Mediator's use of particular strategies, techniques, and skills. By employing these approaches, the Mediator can effectively address these challenges and steer the mediation process back on track.

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1.    The decision maker not present in the room

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·      Requesting a delegation of powers: the Mediator may prior to the commencement of the process, request the attending parties to provide a delegation of authority, to ensure that such representative is able to make or negotiate decisions during the mediation process. In the absence of the same, and depending on the circumstances and particulars of each matter, the Mediator may suggest to the parties that they postpone the commencement of the mediation until such delegation of authority is obtained or the concerned decision maker can attend in person or be available throughout the process. This would help in setting the stage for a productive process and help lead to enforceable agreements.

·       Proposing that the representative communicates closely with the decisionmaker throughout the session/process: the Mediator may propose setting up real-time communication channels between the representative and the decision maker to facilitate immediate consultations and decisions during the process. This would enhance the efficiency of the process, and ultimately facilitate the signing of the settlement agreement by the authorized representatives.

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2.    Non-genuine participation by one or both parties

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If the Mediator suspects one of the parties is not genuinely participating, he/she should emphasize the advantages of genuine engagement in the process, highlighting the potential for a more satisfactory and sustainable resolution through active involvement. For example, the Mediator could highlight the potential cost savings, time efficiency, confidentiality, flexibility, and party autonomy that mediation offers compared to other dispute resolution methods. The Mediator should emphasize that the parties maintain greater control over the outcome of the process and may preserve their relationship (if that is of interest to the parties)which could be damaged in a litigation or arbitration process.

The Mediator should gently probe the parties’ reasons for their disengagement and address any underlying issues and needs that may be hindering their willingness to genuinely participate, and help them explore creative and mutually beneficial solutions that may not be available in court or arbitration.

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3.    One or both of the lawyers are resisting the process or have interest to take the case to Court

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·       Communicating with the parties separately: if the Mediator believes that the lawyer of one of the parties is just using the process for ticking the box, it is advisable that the Mediator meets with the parties without their lawyers and vice versa. In doing so, the Mediator could check the party's level of commitment and readiness for mediation, and address any concerns or barriers that may prevent them from engaging in the process. The Mediator could also use this opportunity to build rapport and trust with the parties, and to educate them and/or their lawyers about the mediation process and their role init.

·       Managing the lawyers’ role: the Mediator can shed light on the importance of the lawyer's role in the process and in reaching a resolution and encourage them to play an active and constructive role in the process. For instance, the Mediator could ask the lawyers and their clients to prepare a list of their interests and priorities, and to brainstorm some possible options or scenarios that could satisfy both parties. The Mediator could also invite the lawyers to share their legal expertise and advice with the Mediator and the other party, and to assist their clients in evaluating the risks and benefits of various proposals. The Mediator could also acknowledge and appreciate the lawyers’ contribution and cooperation in the mediation process, and emphasize the value of their professional relationship with their clients, and praising them for their valuable work, if appropriate.

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4.    Power Imbalance between the parties

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·      The extent of the Mediator’s involvement: the Mediator should provide the weaker party with resources or information to level the playing field. The Mediator could help the weaker party prepare for mediation by providing them with guidance on how to articulate their interests, needs and goals, and how to evaluate their options and alternatives. This would enhance the weaker party's confidence and competence in the mediation process. However, such resources or information should not favor one party over the other but should rather aim to make the negotiation more balanced and informed.

Additionally, the Mediator could use caucuses or private meetings to explore the parties' motivations, concerns and expectations, and to address any power-related issues that may hinder the communication or cooperation between the parties. This would allow the Mediator to intervene in a subtle and supportive way to balance the power dynamics and to facilitate the dialogue and the problem-solving. The Mediator will then ensure that both parties are participating effectively in the mediation process. However, it is crucial that the Mediator maintains neutrality and impartiality while managing power imbalances.

·       Granting equal opportunities to speak: the Mediator should ensure that both parties are given equal opportunity to speak and contribute. Furthermore, the Mediator could use active listening and paraphrasing techniques to demonstrate that he/she is paying attention and understands the parties' perspectives and emotions, and ensure that the speaking party’s message has been received. This would validate the parties' feelings and views and encourage them to listen to each other as well. Additionally, the Mediator could use open-ended questions and reframing techniques to elicit the parties' interests and needs, and to restate their positions or statements in a more constructive and positive way.

By using these technics, the Mediator will help the parties clarify their issues and focus on the common grounds and the possible solutions. It will also ensure fairness and effectiveness and help build trust in the mediation process. However, the Mediator should always ensure not to be judgmental (i.e. forming or expressing personal opinions or judgments) about what is being said by any of the parties.

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5.    Party’s make premature concession or committing to an unachievable/unrealistic position

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·      Calling for caucus or private meeting: the purpose of which is to discuss the implications of the parties’ concessions or unrealistic positions, and allowing them to vent and express their feelings (or frustrations) openly without the fear of weakening their negotiating position. In addition to allowing the parties to vent, the Mediator can also use the caucus or private meetings to explore the underlying interests, concerns or needs of the parties, and to identify any hidden or non-monetary issues that may be influencing their concessions or unrealistic positions. The Mediator can also use the caucus or private meetings to attempt to find areas of agreement amongst the parties and to help them generate alternative options or scenarios that may be more realistic or acceptable to both sides, as well as to test the parties' willingness and ability to implement them.

·      Conducting a reality testing for the party’s position: this can be done through exploring the practicality and implications of the positions or concessions. In this tactic, the Mediator will use open ended questions to enable the party to understand the unreasonableness of their position. The Mediator may also allow the attorney and client to confer and rethink their position. Such tactics would lead to a more informed decision-making process. In addition to using open-ended questions, the Mediator can also use hypothetical questions by challenging the parties’ assumptions and expectations to help them evaluate the risks and benefits of their offers, positions or concession(s), such as:

-      “How do you think the other party might react if they find your opening offer too extreme, disrespectful or humiliating?”

-       “What might be the consequences if your initial offer is perceived as unreasonable by the other party?”,

-      “What if the other party does not agree with your proposal?”; or

-       “What if the court decide differently?”

The Mediator can also use objective criteria, such as legal standards, market values, expert opinions, or industry norms, to provide a neutral and credible basis for assessing the reasonableness of the party's position or concession, and to encourage them to move towards a more realistic or fair range.  

·       Normalizing the dance: the Mediator should explain to the parties not to (that they can’t)short-circuit the dance, by explaining to them more about the negotiation process and that negotiation involves give and take. Thus, encouraging them to adopt a more reasonable stance. The Mediator could also help the parties save face while making concessions. The Mediator should ensure that the party maintains its dignity and does not feel defeated while making the offer. The Mediator can frame such offer in a way that the decisions being made lead to a beneficial compromise, thus facilitating a more informed decision-making process.

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6.    Internally or externally imposed deadlines

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·      Reminding the parties of relevant deadlines: the Mediator should make the parties aware and remind them of the existence of a deadline or the consequences of not adhering to such deadline.

·      Avoiding the disclosure of hidden or unilateral deadlines: while the Mediator is encouraged to use deadlines as time constraint to urge the parties to settle, the Mediator should be careful not to disclose/reveal a unilateral or hidden deadline that one party confidentially disclosed to the Mediator.

·      Managing power imbalance resulting from unilateral deadlines: when a deadline is relevant to one of the parties and not both, the Mediator should be careful that deadlines do not create power imbalance in the relationship between the parties. Thus, the Mediator’s role in such a scenario is to skilfully manage the power dynamics.

·      Encouraging the parties to set deadlines: if there are no deadlines, it is advisable for the Mediator to encourage the parties to establish such deadlines unilaterally or jointly to enhance the outcomes of the negotiation. The Mediator is advised to do this in a caucus or a private meeting while being careful that such move does not jeopardize the Mediator’s neutrality. Jointly established deadlines are more desirable in this case, as this would create a sense of shared purpose amongst the parties.

·      Breaking a hard position under a strict deadline: if one of the parties maintains a hard position and delays concession under a harsh deadline which may result in serious consequences to costs, some of the strategies that the Mediator should use: (i) notice the pattern and name the tactic in private or in joint session. This would require the Mediator to identify and address the negotiation tactics being used and make the party aware of its behavior and its effects on the negotiation process; (ii) reality testing for the tactic in private. This would involve the Mediator discussing the possible outcomes and realistic expectations with the party showing a hard position or resisting concession; and (iii) help the parties save face while making concessions.

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7.    Intense emotions involved

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·      Acknowledgment of emotions: the Mediator should acknowledge the parties’ emotions by simply recognizing, understanding and respecting their emotions without sympathizing with, judging or minimizing them. This can help the parties feel heard and acknowledged, and reduce defensiveness and hostility. The Mediator should also monitor his/her own emotions and reactions, and avoid being influenced or triggered by the parties' emotions. This can help the Mediator maintain neutrality and professionalism, and prevent escalation of the conflict or losing credibility.

·       Creating rapport with the parties: create a safe environment for the parties to enable them to express their emotions. This would naturally come after the Mediator has built rapport with the parties during the communication and exploration phase, which normally occur during the joint sessions, by using key communication techniques such as body language, reflective listening, active listening, and breaking communication barriers.

Furthermore, the Mediator should establish ground rules and norms for the mediation process, such as confidentiality, respect, and civility, and enforce them consistently and fairly. This can help the parties feel safe and comfortable to share their emotions and perspectives, and prevent disruptive or abusive behaviors.

The Mediator should also use humor, empathy, and positive feedback to create a more relaxed and cooperative atmosphere, and to reinforce the parties' efforts and achievements. This can help the parties feel at ease and motivated to engage in the mediation process, and to build trust and rapport with the Mediator and each other.

·       Separating people from the problem: the Mediator may help the parties direct their emotions towards productive problem solving. The Mediator plays an essential role in depersonalizing a party’s problem, making sure to preserve such party’s dignity. The Mediator should separate people from the problem and try to understand their underlying interests and needs, such as why things are important, what are the key concerns, and why a party wants what it is asking for.

Moreover, the Mediator should assist the parties in reframing their emotions from positions or demands to interests or needs, and to identify and address the underlying sources of their emotions. This can help the parties move from a competitive or adversarial mindset to a collaborative or integrative one.

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8.    Situations where beliefs, values and morals are relevant

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·      Appealing to beliefs: the Mediator could help the parties reach an agreement by appealing to their beliefs, values or morals. The Mediator may also seek to identify and emphasize on the shared beliefs, values or morals of the parties that can serve as a basis for an agreement.

·      Turning the beliefs into interests and needs: the Mediators could help turn such beliefs, values or morals into tangible interests and needs. The Mediator should uncover the underlying interests of the parties that drive the parties’ positions. This normally happens when a party holds strong beliefs which may sometimes cloud its ability to see beyond its own perspective.

·      Changing the parties’ relationship: the Mediator should focus on changing the parties’ relationship and not their beliefs or values. The Mediator’s role would be in this case to encourage discussions that enhance mutual respect and understanding amongst the parties. For instance, the Mediator may focus not only on reaching a mutually acceptable solution but also on transforming the relationship between the parties by; for example, assisting the parties to improve their communication, and understanding and interaction with each other.

·      Mediating across generations or different nationalities or cultures: an effective Mediator should be sensitive to the diverse perspectives that the different participants/parties bring to the table, by avoiding stereotyping participants on this basis. Thus, a Mediator should be culturally competent, and capable of understanding how cultural differences can affect the communication styles, the approaches and perceptions of the parties.

The Mediator should also respect the diversity of the participants. This involves recognizing and valuing the unique insights and viewpoints that each party brings to the mediation.

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9.    Mediator accused of being biased

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·      Inviting the parties to share their perspective and expectations: the Mediator should invite the party who accuses him/her of being biased to share their perspective and expectations of the mediation process and the Mediator's role. The Mediator should listen actively and respectfully to the party's concerns and acknowledge their feelings. The Mediator should also ask the other party to share their views and experiences of the mediation process and the Mediator's role and clarify any misunderstandings about his/her role. The Mediator should aim to create a dialogue between the parties that fosters mutual understanding and trust.

·      Affirming his/her neutrality: after hearing the party’s perspective and clarify any misunderstanding about his/her role, the Mediator should reaffirm his/her neutrality and openly address the specific concerns about his/her bias or fairness by reaffirming his/her commitment to neutrality. The Mediator should explain to the parties that he/she is bound or inclined to follow as they are guided by the set of ethical standards for mediators which may be applicable on him/her and which professional mediators should adhere to. The Mediator can always refer to such ethical principles/standards to explain why they are conducting the mediation in a particular way.

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The above provides a brief overview of some of the many challenges and situations a Mediator may encounter during mediation. The examples and strategies discussed are just a few among many that a Mediator may employ, varying according to the Mediator’s unique style.

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Mediation is transforming dispute resolution in the hospitality industry. The hospitality sector is well-known for its dynamic and complex character, meeting the different requirements and expectations of tourists all over the world. However, the industry faces considerable problems and disagreements, which may have an influence on its image and profitability. In his enlightening book, "The Art of Mediation: The Key to Resolving Disputes in the Hospitality Industry," Mohamed Darwish, a seasoned specialist in company development and legal issues, presents a complete guide to using mediation as an effective alternative to litigation. This study investigates the transformational impact of mediation, provides historical and theological views, and demonstrates how Darwish's skill may change conflict resolution in the hotel industry.

TheEvolution of Hospitality and Dispute Resolution

The notion of hospitality has changed considerably throughout the millennia. Ancient civilizations, like Mesopotamia and Egypt, saw hospitality as a holy responsibility. Mesopotamian laws and Egyptian divine commands produced the first types of hospitality norms, stressing moral and legal responsibilities for visitors. Greek culture developed the notion of "xenia," which emphasized guest protection and respect. The Roman Empire advanced hospitality with sophisticated facilities, establishing early norms for guest treatment.

InJudaism and Christianity, Old Testament teachings stressed the virtue ofhospitality. For example, Abraham's welcome to three visitors in the Book ofGenesis emphasizes the value of gracious hospitality. Similarly, the NewTestament advocates kindness to strangers as a reflection of Christianprinciples, highlighting how such deeds help to develop a loving community.

Al-Wasata(moderation), sulh (reconciliation), and musalaha (amicable resolution) are allexamples of Islamic values that promote hospitality. These concepts areprofoundly ingrained in Islamic culture and serve as a guidepost for fair andrespectful relationships.

ModernChallenges and the Role of Mediation

Thehotel sector of the twenty-first century has several issues, includingoperational complexities, the transition from transactional to relationshipmarketing, and the dual influence of social media. For example, managing guestfeedback and expectations requires a proactive strategy, particularly in an agewhen a single bad review may have a big impact on a hotel's reputation.

Litigationin the hospitality business is increasing, with conflicts involving visitors,travel agencies, and staff. Legal cases such as Best Western International,Inc. v. James Furber and Kenneth Munson v. Del Taco, Inc. demonstrate the highexpense and length of litigation. These disagreements often result inconsiderable legal expenditures and lengthy settlement timelines, emphasizingthe need for alternative dispute resolution (ADR) procedures.

The Benefitsof Mediation

Mediation is a cost-effective and friendly alternative to litigation. It focuses on settling problems via assisted discourse rather than combative processes. Mediation, for example, may resolve both internal issues, such as employee complaints or misunderstandings, and external disagreements, such as owner-operator hotel management agreements.

Darwish highlights the value of mediation in protecting guest relationships, lowering legal expenses, and cultivating a healthy workplace culture. Mediation's flexibility enables individualized solutions that match the requirements of all parties involved, resulting in speedier and more satisfied results than conventional litigation.

Implementing Mediation in the Hospitality Sector

To successfully implement mediation in the hotel business, it is critical to develop clear rules and processes. Darwish calls for specific training to provide hospitality personnel with the skills required for successful mediation. This entails comprehending fundamental concepts like neutrality, impartiality, and secrecy, as well as developing dispute resolution skills.

For example, training may help personnel handle guest concerns in a timely and professional manner, protecting the hotel's image while addressing difficulties quickly. By incorporating mediation strategies into everyday operations, hospitality businesses may increase their conflict resolution skills and overall visitor satisfaction.

Training and Certification

Mohamed Darwish is well-positioned to provide the essential training for hospitality employees, ensuring that they are knowledgeable about mediation tactics specific to the industry. His significant expertise and IMI accreditation establish him as a reputable mediation expert, providing vital insights into the creation and implementation of successful mediation programs. Training programs may cover a wide range of topics, including conflict resolution tactics, mediator selection, and assessment.

Conclusion

Mediation is a valuable tool for resolving conflicts in the hotel business, providing a cost-effective and collaborative approach to conflict resolution. Understanding its historical and cultural origins, as well as establishing effective mediation methods, allows hospitality firms to handle conflicts more quickly and retain their reputations. Mohamed Darwish's mediation knowledge serves as a useful resource for training and establishing effective dispute resolution tactics, eventually improving the hospitality industry's capacity to handle disputes and encourage excellent guest experiences.

Formore information on mediation training and implementation in the hotel sector,or to learn how Mohamed Darwish can help you improve your conflict resolutionprocedures, contact him for professional advice and assistance at m.darwish@darwishadvocates.com.

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As if the Earth stopped spinning, everyone stopped doing everything and most of all, it is important to limit and stop the spread of the virus, to provide medical care for those in need and to research and test a vaccine. All other domains appear to be operating at minimal levels, with activity suspended or significantly reduced. Class hours in schools and universities and almost all professional meetings and events are either cancelled or postponed for an indefinite period. Most importantly, more and more people are infected and dying and communities, countries and economies are suffering, perhaps more than ever in recent history.

This post gives me the opportunity to share three reflections on this situation.

Opportunities for self-reflection

In addition to taking the necessary measures to stop the virus, to solve today’s problems and to prevent and solve tomorrow’s problems, we have the opportunity to reflect on the values and lessons that were reflected during the COVID-19 pandemic. Probably in the last days there have been global talks about hygiene, intimacy or compassion at levels that we have not encountered before. Now, these values and the like are no longer viewed only in the abstract by the general public, but there is a context in which they become concretely relevant to our survival.

Now, from isolation from home, from hospital wards or from wherever we are during these times, having a more or less significant role in managing the crisis, we can think of what is important for each of us, our communities and, why not, for our species. The analysis can be all the more useful as our actions should be oriented towards protecting these values with priority.

Are we ready for what will happen next?

We and those around us say that we can hardly wait for the situation to resolve and for things to return to normal. We must be careful, though. Once we get out of the houses and the virus will be isolated, we will face a new wave of challenges.

For example, I understand that courts in Romania are already scheduling cases registered in this period for the fall of 2020. This is just an example of an effect on the efficiency of judicial procedures and courts. If we think about this effect from the perspective of the fact that since before COVID-19, reducing the time needed to judge cases was already one of the objectives of the judicial reform strategy, we better understand the dimension of the problem.

Another example is the impact of the situation on the economy and on the relationships between employees and employers. Already there are news about protests organized by unions to promote the interests of employees that are affected by the situation. It is also expected that the private sector will experience an increase in commercial disputes arising from delays in the execution of existing contracts.

The list of risks and vulnerabilities that start with illness, unemployment, bankruptcy and lost profits is long, unfortunately, but no doubt, in all cases management strategies are needed.

The natural strategic approach is collaboration

It is said that in the face of danger, natural instincts are more competition or avoidance and less compassion or collaboration. This behavioural approach would be based on the theory according to which the perception of one’s own security and the instinct of conservation prevail. Even if ignorance was not lacking in some cases and effective public policies were delayed in some jurisdictions, however, the COVID-19 experience has shown us in many cases that humanity can successfully participate in a global collaborative exercise.

If we are seen from the point of view of our personality, each person is unique. From a cultural point of view, every person is different. But COVID-19 reminded us that, from the point of view of what is important to us as humans, we are all the same. When humanity has been endangered, it seems like, more than ever, we have realized that we have the same interests (i.e. health, security) and we need to cooperate, regardless of religion, political views or the resources at hand.

Mediation can play a positive role

Some of the effects that such global crisis situations create are instability, uncertainty and panic; these, in turn, can become conflict generating factors. Mediation can play a positive role in both preventing and amicably resolving these conflicts. How? Since dispute resolution can also take place in the online environment (ODR or Online Dispute Resolution), now more than ever, mediation can be a viable solution.

The goals of using mediation can be many and can refer, for example, to the management of existing disputes, to decision-making processes about next steps or to the design and implementation of dialogue and communication processes meant to ensure the transfer of the correct information from one source to another, following ground rules agreed by the stakeholders.

The technology offers remote communication tools that have been used successfully for many years. Now, however, not only the government meetings or the crisis-management groups are organized by video conferencing. The same solution is used successfully by educational institutions or the private sector.

A simple example inspired from the media relates to the communication capacity of the institutions. Whether we’re talking about a person in isolation, people queuing at the country’s border on their way home, or patients who are in the process of being screened, everyone needs information and everyone stays and waits for hours and days, in many cases, feeling forgotten. The protests and disputes created are inherent. At the same time, institutions have limited capacities to communicate or for implementing rules and policies. Mediators can be useful both in terms of prevention and management of these situations involving several stakeholders and their various interests. The establishment of accountability mechanisms by development banks and the creation of mediation functions of these mechanisms to respond to the social and environmental concerns raised by communities are just one example in this regard.

Did we learn our lessons?

Every generation has reason to believe that is living in a period of historical challenges. Whether it is wars, pandemics or natural disasters, humanity has been tried during many periods of crisis. The biggest surprise about these crises is that we are still surprised when they occur. Looking back only to the last century, each experience of this nature provides a rich source of relevant information from the perspective of conflict prevention, management or amicable resolution. The question is how much do we learn from this experience?

Let us have hope, faith and the ability to assimilate the lessons that the experience of the last weeks and months has offered us about what is most important to us.

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In the backstage of all that mesmerizing glitter and the luxurious glamour of the fashion industry, conflicts have always been there. Till date, no one can forget the notorious rivalry that burst in the early 1920, between the famous Coco Chanel and the avant-garde surrealist Elsa Schiaparelli; their elegant strifes and glamourous tensions remodeled fashion history. Whether on the runways or even behind the curtains, conflicts were always present in the world of fashion and creation. Amidst the glitter of haute couture, the sparkling universe of creation and the charm of glamourous beauty, an innovative and sophisticated solution transcending the traditional avenues of dispute resolution occurred. This innovative bespoke process is no other than mediation.

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The idea of mediation is along-standing concept; however, its implementation as a conflict resolution alternative is relatively new, especially in the fashion world. Nonetheless, mediation proved to be not just a simple trend but a well-established process. One of the iconic cases that embodies and symbolizes the power of mediation in the fashion industry is the dispute between Christian Louboutin and Yves Saint Laurent over the use of red soles on high-heeled shoes.

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It all started back in 2011, when Christian Louboutin, a shoe designer renowned for his iconic, red-soled shoes, filed a lawsuit against the well-known brand Yves Saint Laurent, claiming a trademark infringement. The feud between these two fashion titans captivated the industry. The legal battle between these fashion figures threatened to blacken the reputations of both brands and disrupt the fragile and graceful equilibrium of the fashion world. Instead of allowing the dispute to escalate further through lengthy and public litigation, both parties chose mediation in order to find together a solution for their dispute. After a constructive dialogue facilitated by a neutral mediator, Christian Louboutin and Yves Saint Laurent reached a settlement agreement back in 2012.

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This landmark agreement was clear evidence that mediation is an effective process resolving complex and intricate disputes combining “legal drama” and haute couture finesse. Mediation is then seen as the promising “couturier” designing a refined bespoke garment or a “sumisura” dress !

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In the light of this alluring case, let's explore how mediation, through its delicate tools, can elevate elegance in resolving conflicts within the fashion industry.

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1. Confidentiality Couture: Confidentiality and Discretion are the cornerstones of haute couture and fashion designs. And just like this exclusive world of luxury, confidentiality reigns supreme as well in mediation providing a safe and private podium for parties to communicate and resolve their differences away from the public eye. Picture a high-profile dispute between fashion icons over intellectual property rights. Mediation offers a discreet resolution platform, safeguarding the reputation of the brand and the integrity of involved parties, while preserving the mystique and image of the brand in the fashion world.

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2. Efficiency in Elegance: Fashion is about trends, and trends are in a perpetual motion of designing, re-styling, and transforming. Time is of the essence in this arena, even when it comes to conflict resolution. In the fast-trend fashion world, mediation is considered the quintessence of efficiency due to its well-designed, structure-tailored, and swift process. Imagine a scenario where a luxury brand finds itself in a contractual dispute with one of its major suppliers due to delivery delays. Through mediation, conflicts are addressed promptly, allowing involved parties to refocus their energies on what truly matters, the creation of exquisite designs and impeccable bespoke craftsmanship.

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3. Preserving Relationships: Like a talented seamstress sewing a fine “su misura” garment, mediation delicately weaves a tapestry of understanding, facilitated communication, and cooperation, preserving relationships between stakeholders. Take for instance, the scenario of a luxury fashion house involved in a dispute with its esteemed designer over some creative divergences or other differences. Rather than resorting to adversarial and public litigation, mediation offers a platform for open and private dialogue woven in mutual respect, ensuring that the partnership remains intact, and both parties continue to flourish creatively. We all remember the famous lawsuit between John Galliano and Maison Dior back in 2011, when the latter discharged Galliano after fifteen years of exquisite collaboration with huge media clashes. Mediation could have been the “fil d’Ariane” (Ariane’s thread) that would have carefully stitched this flourishing creative relationship and preserved the mythic image of the brand!

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4. Innovative and tailored Solutions: Mediation, just like fashion, offers a new-fashioned bespoke solution tailored to the unique needs and interests of each party. Whether it's a disagreement over a licensing agreement, a breach of contract, or a dispute regarding the ownership of a certain design, mediation adapts to the sophistication of each case, ensuring a customized resolution that resonates with all parties involved. By prioritizing flexibility and individuality, mediation allows stakeholders to find common ground and fashionable solutions that are as unique and distinctive as the garments they create.

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In fact, mediation offers innovative solutions beyond the traditional litigation. Consider a simple trademark infringement dispute between luxury retailers, mediation gives parties the opportunity to think outside the box, exploring creative solutions such as cross-promotional campaigns or collaborative design ventures, thereby fostering a spirit of innovation and cooperation within the industry.

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The dispute between Gucci and Guess over trademark infringement is a fitted example of how mediation helps parties get to customized tailored solutions.

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In fact, back in 2009, Gucci filed a lawsuit against Guess, alleging that Guess had been selling products that imitated Gucci's trademarks and designs, leading to consumer confusion and dilution of Gucci's brand. The legal battle lasted for several years, with both parties engaged in complex litigation proceedings and tabloid headlines. However, in 2012, the two fashion giants opted to resolve their dispute amicably via mediation. Through  the transformative process of mediation, Gucci and Guess were able to tailor a bespoke settlement agreement that included financial compensation and a licensing arrangement, allowing Guess to continue selling certain products without infringing on Gucci's trademarks. The Gucci-Guess case demonstrates how mediation can effectively address complex disputes within the fashion industry, offering a time efficient, bespoke-constructive, and harmonious collaborative approach to resolving conflicts while preserving the integrity and reputation of the brands involved.

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Through the previous paragraphs, we delved into the benefits of mediation resolving fashion disputes via cases that were in fact submitted to mediation. Yet, the irrefragable proof that mediation does have a considerable input in fashion industry conflict resolution, is in the simulated implementation of this transformative process to an ongoing lawsuit causing a turmoil in the world of fashion and luxury brands industry.

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When we think of a contemporary voguish fashion dispute, we likely can’t think but none of the notorious Birkin Bag affair or what I shall refer to as “the Birkin Bag Gate”.

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What is the “Birkin Bag Gate” about?

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Revered for its impeccable craftsmanship, luxurious items and timeless elegance, the French house of Hermès has been, for decades, a synonym of elite, prestige, and exclusivity. Many luxurious items of the brand are considered as worldwide-coveted, especially the “urban legend” Birkin bag. The Birkin bag is one of the most sought-after items at Hermès. Every worldwide fashion aficionado wishes to own a Birkin due to its unique design but mostly due to its symbol of A-list status.

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In the mid of March 2024, the famous luxury retailer, Hermès has found itself at the center of a legal controversy in the United States, after a federal class-action lawsuit filed against it in San Francisco by two individuals. The fashion luxury industry was shocked by the newspapers headlines revealing an accusation of discriminatory practice, market manipulation and antitrust law violation.

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The Claimants alleged that Hermès has been engaged in discriminatory acts by only selling its famous Birkin Bags to an elite group of customers who have already spent exorbitant amounts on other items in their boutiques. According to the complaint, access to this most coveted bag is limited to the brand's wealthiest clients. This restriction, which seems to prioritize big spenders, has raised concerns about fairness and equal access to the brand's products. Therefore, the main accusation revolves around an antitrust violation since this “practice” could be seen as a market manipulation and a discrimination against ordinary customers by requiring them to purchase other luxury products before being eligible to buy the Birkin Bag (1).

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Considering this “Birkin Bag Gate”, what if, instead of this federal class-action lawsuit, parties decided to solve their dispute in a more timely and amicable manner?

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What if they turned to mediation?

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And if so, what will be the main benefits of mediation in this case and specifically to Hermès?

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Hermès, known for its quality craftsmanship and its heritage in the fashion luxury world, could see its reputation tarnished by the publicity of long litigation proceedings, newspapers headlines and all these allegations accusing the renowned company of establishing a sort of discriminatory elitism and inequality in the fashion industry.

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With its constructive tools and transformative techniques, mediation can potentially help the parties solve their dispute by providing them with an open communication platform where they can have a constructive dialogue, allowing them to express their motives, concerns, differences; identify their interests, and explore their options through a facilitated and negotiated dialogue. Mediation will help the parties explore solutions within a cooperative confidential atmosphere, beyond the confines of public legal proceedings and mitigating potential reputational damages.

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The confidential aspect of mediation will hold back a possible reputation tarnish, avoid reputational damages, and clarifying the motives behind their internal policies or marketing strategies that are often created by renowned brands such as Hermès, to maintain the prestigious brand’s name and preserve its history.

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Mediation can, therefore, with its swift, flexible-constructive process and with its confidential forum, pave the way for a mutually beneficial resolution of the Birkin Bag controversy especially by avoiding the time expense and uncertainty associated with prolonged public litigation proceedings. As mentioned earlier in the Gucci- Guess dispute, mediation can help parties to prioritize flexibility and individuality, allowing stakeholders to find common ground and tailor bespoke solutions that are as unique and distinctive as the Birkin Bag.

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This simulated case study demonstrates that if parties chose mediation, they could effectively address their fashionably intricate dispute in a more constructive and collaborative approach, preserving the integrity and reputation of the brand involved, such as the house of Hermès, tailoring and designing “su misura” solutions while respecting mutual interests, market rules and equality law.

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In conclusion, mediation is undoubtedly the ultimate tool for resolving conflicts amicably with grace and style leading to a sophisticated, bespoke solution.

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So, next time if a conflict arises in the world of fashion, mediation is not just a solution, but it’s a statement, an expression of elegance and refinement that transcends borders and boundaries, uniting disputants in pursuing a confidential excellence, sartorial solution creativity, and haute couture well balanced relationship!

This blog was written by Petra Drgoňová (Lawyer & International Accredited Mediator) and Constantin Adi Gavrilă.

Gender equality, the state of men and women having equal rights, responsibilities and opportunities, represents a vital prerequisite for a peaceful, prosperous and sustainable world. The relevance of gender equality has been recognized by major societal actors across numerous areas of life, such as in governance, where, for example, women’s presence shifts more attention to legal protection, social welfare, and the transparency of government and business, but also in conflict resolution.

Mediation, as a peaceful method of alternative conflict resolution (ADR), involves various parties and diverse stakeholders working collaboratively, dealing with various complexities and perspectives that must be considered, often completely opposite from each other. An increasing body of research shows that the involvement of women in conflict prevention, management, and resolution, whether in mediating and negotiating roles or through grassroots efforts (related to minor disputes arising in the daily life of communities), is essential for attaining lasting agreements.

Why is that? One reason is that women’s involvement in conflict resolution processes promotes the more effective engagement of different community members in collaborative efforts, contributing to a more comprehensive understanding of the deep-rooted causes of conflict that informs the best options for possible actions. Furthermore, higher gender equality and more effective gender representation in mediation inform more sustainable dispute resolution processes and outcomes, leading to a lower propensity for the emergence of conflict in the first place. For example, women can describe how conflicts impact the households, families, children, and vulnerable members of the community with language and perspectives that are often fundamentally different from others brought into dialogue processes.

The extent of benefits linked to women’s participation in mediation within all phases has been acknowledged by several international organizations, notably the United Nations, which recognized the necessary role of women in peacemaking in the Security Council Resolution 1325 on Women, Peace and Security, adopted in 2000. Since then, the UN has called for greater involvement of women in conflict mediation processes and all peacemaking activities.

For instance, a lot of work in this respect has also been done by UN Women who puts a lot of effort into supporting more effective participation of women at all levels of conflict resolution, especially by working closely with civil society organizations, other UN agencies and Member States. Via this cooperation, it aims to enhance gender equality in peace processes through different activities, such as by gathering know-how and documenting good practices, strengthening women’s civil society organizations to help them advocate for women’s rights in peace processes, and encouraging the development of regional networks of women mediators. The OSCE (Organization for Security and Co-operation in Europe) has also actively promoted gender equality. In this regard, it is important to note its Action Plan for the Promotion of Gender Equality, adopted back in 2004, which highlighted the relevance of women’s participation in conflict prevention, crisis management and post-conflict reconstruction.

Despite many efforts made over the last two decades, gender equality in ADR, mediation and formal peace processes has still not been achieved, and women remain either underrepresented in conflict resolution or excluded from decision-making altogether. For instance, between 1992 and 2019, women constituted only about 13 percent of negotiators, 6 percent of mediators, and 6 percent of signatories in major peace processes globally. Despite some progress made, on average, seven out of ten peace processes did not include women mediators or women signatories at all. In 2021, the involvement of women in UN-led peace processes (either as negotiators or delegates) represented 19 percent, while only 8 out of 25 globally reached peace agreements that year (32 percent) included provisions referencing women.

Some of the causes of women’s low participation in mediation and peacebuilding

The following factors can be considered as the common challenges impeding the attainment of adequate participation of women in conflict resolution procedures:
– cultural stereotypes and patriarchal justifications – they are often used by the parties who argue for women’s exclusion from peace talks, which subsequently leads to the marginalization of women in community dialogues and minimization of the overall acknowledgment of their needs in the conflict,
– a lack of trained women mediators with local availability to take part in dispute resolution processes,
– a lack of mediators’ capacity to ensure meaningful participation by women in the mediation process.

A deeper effort to understand cultural frameworks as opposed to changing them

Let’s look at the cultural stereotypes for a moment and try to get a better understanding. One important point that must be made is that women play various roles within families and societies across cultures. However, in some cultures, in the context of dispute resolution, while only men speak up publicly and represent their families and communities in ADR and peace processes, women play a similarly important role, if not more important, within their families and communities working behind the scenes as grandmothers, mothers, sisters, daughters or partners. Values like honor and face-saving may be mentioned here as standing at the foundation of the cultural patterns.

So, while it is relevant to note that promoting the inclusion of women in peace processes and community mediation efforts is a widely supported goal that is seen as essential for gender equality and sustainable peace worldwide, one needs to understand some of the thinking behind the cultural resistance, particularly in non-Western communities, without necessarily endorsing these viewpoints:
– Some argue that women’s participation in dispute resolution processes, particularly ones with public dimensions, could potentially lead to the dilution or erosion of traditional cultural values and practices within certain communities. They fear that increased interaction with Western ideas and values might result in a loss of distinct local identity.
– Certain societies may have deeply entrenched conservative views regarding gender roles and women’s participation in public affairs. Opponents might contend that pushing for women’s involvement could provoke backlash or resistance from these elements, potentially exacerbating conflict rather than facilitating peace.
– Some might also argue that women’s active engagement in ADR, mediation and peace processes could disrupt traditional family structures and dynamics. This disruption could be seen as destabilizing, challenging the established hierarchy and roles within the family unit.
– Critics may suggest that in some cases, efforts to include women in community mediation and peace processes may be tokenistic, where women are included merely to fulfill international expectations rather than because they possess the necessary qualifications or experience. This could lead to the perception that women are being used as pawns in a larger geopolitical game.
– Skeptics might also argue that external pressure to include women in peace processes could be counterproductive. In some cases, allowing local communities to make these decisions themselves might be more effective without external interference.

Therefore, all viewpoints should be understood and addressed by stakeholders in ways that are perceived to be gentle, open, and honest so that the international practices would meet the traditional cultural values. This way, modern and traditional values would be harmonized for an increased understanding among people who otherwise may be trying to influence each other for the sake of external factors like set principles or international frameworks.

How to achieve a higher representation of women in conflict resolution

According to the UN Guidance on Gender and Inclusive Mediation Strategies, it is especially relevant to:
– set up and implement legal frameworks (both on national and regional levels) to promote the effective participation of women in the peaceful settlement of disputes, especially in conflict mediation processes,
– encourage parties to increase women’s political participation through measures such as quotas where relevant,
– develop solid strategies regarding gender equality and mediation to increase the meaningful inclusion of women in formal peace negotiations, especially at the senior level, while considering the interests of all conflict parties and other relevant stakeholders (both men and women).

In developing mediation process strategies to attain gender equality, it is crucial to ensure the participation of women across all phases of the mediation procedure. The preparatory phase shall include a comprehensive stakeholder analysis identifying any challenges to the inclusion of women in the mediation process (such as cultural norms in a given environment), as well as developing a mediation team with an equal representation of women. The mediation phase shall involve consultations with women and civil society to take into consideration their needs and concerns, the provision of technical support and capacity building to parties to facilitate women’s involvement in peace talks, as well as the identification of constraints that may restrict women from participating in a mediation process (such as financial or travel issues). It is also important to ensure the use of gender-neutral language in the mediation process and its outcome documents, thereby avoiding using masculine forms when referencing both men and women. Within the post-agreement phase, it is essential to ensure women’s representation in implementation processes and monitoring mechanisms and encourage dialogue to strengthen local ownership of the issue, maintain women’s engagement in the dispute, and secure adequate funding to support the abovementioned points.

Conclusion

Despite many efforts made to enhance gender equality in conflict resolution, women’s participation in mediation and peacemaking processes over the last two decades has increased only gradually, and their current involvement is far from sufficient, which shows that much more needs to be done internationally, as well as at national and local level.

The ongoing lack of women’s meaningful involvement in mediation and peace processes presents a critical challenge to global goals related to more effective conflict resolution. It is, therefore, necessary for relevant international organizations and countries to cooperate even more intensively to ensure an increased understanding of traditional community values and, in this context, an increased involvement of women in conflict resolution processes. This would assist the long-term sustainability of mediation agreements and consequently attain higher levels of peace and stability in the world.

References

Conflict prevention and resolution. (n.d.). UN Women – Headquarters. https://www.unwomen.org/en/what-we-do/peace-and-security/conflict-prevention-and-resolution
Facts and figures: Women, peace, and security. (n.d.). UN Women – Headquarters. https://www.unwomen.org/en/what-we-do/peace-and-security/facts-and-figures
Guidance Note on Gender-Inclusive Dispute Resolution | CAO Data Hub. (n.d.). https://www.cao-ombudsman.org/resources/guidance-note-gender-inclusive-dispute-resolution
Including women at the peace table produces better outcomes. (n.d.). Council on Foreign Relations. https://www.cfr.org/womens-participation-in-peace-processes/
Organization for Security and Co-operation in Europe (OSCE). (n.d.). Inclusion of Women and Effective Peace Processes. A Toolkit. https://www.osce.org/files/f/documents/0/5/440735.pdf
Thematic Paper: Gender Equality in Grassroots Mediation | United Nations Development Programme. (n.d.). UNDP. https://www.undp.org/vietnam/publications/thematic-paper-gender-equality-grassroots-mediation

Link to article - Kluwer Mediation Blog: https://mediationblog.kluwerarbitration.com/2023/09/14/the-need-for-enhanced-gender-equality-in-adr-or-how-to-get-more-women-around-a-mediaton-table/

I wonder how many countries have public institutions that usually use mediation services to resolve disputes in which they are parties. I am not referring primarily to disputes between investors and states, but to any dispute where a public institution is a party that eventually reaches litigation with high financial costs, even and in situations where it is evident that the solution will be negative. Why? Because the legislation is such that the negotiation and conclusion of agreements are more associated with the idea of corruption rather than with risk management and creative, win-win solutions. Even if the benefits of mediation are recognized and much acclaimed by policymakers, it seems that the legislation is adopted instead for citizens and the private sector, with few exceptions, the disputes with public institutions not being taken into account. There seems to be something missing.

Adoption of the legal framework for mediation

Many countries have created a legal framework for mediation to ensure the quality of mediation services and institutions responsible for managing mediator accreditation systems. With a few exceptions (i.e. Italy), the legal framework in most countries is oriented more towards the “supply” side and less towards the “demand” side, but this is not the main topic of this post (obviously, the comments are good -come on this topic as well).

The main reasons stated by policymakers in adopting mediation legislation are promoting a culture of dialogue, decongesting the role of courts, and shifting the focus from the number of cases resolved to the quality of solutions adopted. In general, the potential benefits of mediation are appreciated by the public sector, as related to the high possibility of settling the dispute more efficiently with less financial costs and time resources compared to other means of resolution, such as arbitration or the traditional court litigation.

The reasons why mediation is not on the “menu” of public disputes

However, if we look closely, it seems that mediation is not used by public institutions in many countries, even if its benefits are recognized. For example, the Romanian Parliament adopted the mediation legislation in 2006 because from January 1st 2007, Romania became a European Union Member State, and many conditions for accession had to be met. Meanwhile, it is challenging to identify situations where the public sector uses mediation. There is not an explicit, coherent, and favourable public policy.

The reduced use of mediation by the public sector may also discourage citizens and the private sector. But what are the reasons why mediation is not among the preferred dispute resolution methods by central and local public institutions in many countries? A discussion of these reasons would help understand how governments and public institutions may be encouraged to mediate. I open the conversation with three possible causes, which I briefly describe below – the fear of corruption, the financial audit of public institutions and the unfavourable legal framework.

Corruption

For mediation to be accepted by the public sector, a lot of integrity and transparency is needed. We need to remember that mediation happens in a confidential setting, which runs counter to the transparency necessary for the public sector. Moreover, in countries where the Corruption Perceptions Index (CPI) has a low value, as is the case of Romania compared with the other Member States of the European Union, without a favourable legal framework and an express mandate from the institution it represents, the civil servant will avoid at all costs the participation in “closed door” discussions to eliminate the risk of being accused of acts of corruption. Often, to avoid taking responsibility for deciding on using mediation, the civil servant prefers to be bound by the court, even if this practice is done at the expense of those who pay taxes.

Public financial audit

But not only the fear of corruption can be a contributing factor to the reduced use of mediation by public institutions. The fear of not being investigated by the authorities responsible for the financial audit of institutions and civil servants may be another factor that, again, in the absence of a coherent and favourable legal framework for mediation, generates a phenomenon of non-responsibility in decision-making on dispute resolution. This way, the courts take these decisions binding on all parties involved, the real loser being the taxpayer, as this process carries court taxes and other litigation costs.

Policies that establish that the courts have authority

Perhaps one of the most important reasons for the minimal number of public disputes resolved through mediation is the lack of a favourable policy and a legal framework to encourage public institutions to use mediation services. We are referring to the facts that the public sector does not usually initiate or accept mediation and do not include a mediation clause in public contracts. Often, the amicable settlement clause in these contracts is mostly a theoretical possibility. As an example of good practice, we mention here the opt-out model successfully implemented for several years in Italy, creating a mediation culture for the public sector. Last but not least, effective public policies start from the establishment of effective mechanisms for data collection and monitoring of mediation quality.

Conclusion

Indeed, much can be said about this subject. Certainly, the adoption of laws does not create realities. Instead of adopting laws focused mainly on the “development of the mediation offer”, it would be helpful to lay the necessary foundations for encouraging the use of mediation, primarily by the public sector, which, through its attitude, will send a powerful signal to citizens and the private sector. Finally, effective mediation promotion will occur when governments significantly improve the conditions for mediating disputes to which public institutions are parties.

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Link to article - Kluwer Mediation Blog: https://mediationblog.kluwerarbitration.com/2021/06/14/effective-mediation-promotion-use-of-mediation-by-public-institutions/

Introduction:

The Modern legal system in the UAE was developed in the last 25 years of the 21^st Century. It was initially modell ed on the French Civil Code System, but later developed its own legal principles and structures. The U.A.E legal system, like most continental European civil code systems, is based on a Civil Code that covers: Personal rights, Contract law, Obligations, and Elements of tort law.

 
In addition, there are specific codes dealing with other areas of law, such as the Commercial Code, which complements the Civil Code in certain areas of commercial law, and the Code of Civil Procedures. These Codes deal mainly with private law but there are also elements of public law. Large commercial disputes tend to be settled through Arbitration, following implementation of the Arbitration Law (Federal Law No. 6 of 2018). However, the settlement of large commercial disputes through court litigation remains common. Family courts also adopted some dispute resolution methods, but they are not effective up till now.  

Interest in mediation has recently grown. However, mediation remains in the U.A.E until 2021 subject to contractual agreement, and not formally regulated by legislation.

 
In 2021, the U.A.E made its first move to adopt Mediation for the Settlement of civil and commercial disputes.Federal Law No. (6) of 2021 on Mediation was issued in UAE and amending some provisions of Federal Law No. (17) of 2016 Establishing Conciliation and ReconciliationCenters in Civil and Commercial Disputes. Finally in 2023, Federal Law No. (40)of 2023 on Mediation was issued in UAE with the aim of unifying all rules and principles of Mediation in one code, that we can call ‘LAW OF MEDIATION’. The new federal law combines the rules of judicial mediation, privet mediation, and how Conciliation and Reconciliation Centers work in Civil and CommercialDisputes all together in one code.

Mediation process is a cooperative dispute resolution process in which an impartial third person facilitates communication between the parties to help them reach a mutually acceptable resolution that is better than their alternatives. Federal law stipulates that the judicial departments or authorities shall prepare lists for the registration of mediators from among those registered in the list of experts at the Ministry of Justice or in the local judicial authorities.

Mediators can be selected from among the retired members of the judiciary and lawyers registered in the rolls of practicing and non-practicing lawyers who have practiced the profession for a period of not less than five years prior to registration in the roll of non-practicing lawyers, and other highly qualified and international experts in the legal field and in the field of business and known for their experience, integrity and impartiality determined by a decision of the Council or the President ofThe judicial authority, as the case may be, the conditions, procedures and periods of registration and renewal of the lists of mediators, their selection and cancellation.

According to the federal law courts will offer various process options and presume some sort of ADR tools that will help in most cases. Lawyers and parties are given the opportunity to select their own process under the supervision of the judges.

So, judges in courts now according to the federal law of mediation have a great responsibility to control the process of judicial mediation and to encourage parties to settle their disputes by mediation and response to concerns or objections raised by lawyers and parties as well.

Most of the judges in need to enhance their skill to increase Courts ability to resolve cases using mediation Judges at courts should provide services where unique features of cases are given priority attention on order to promote great public satisfaction. That leads to suggesting some ideas about the content of the training courses that will provide judges with what they really need in the coming days and enhance their skills.

This paper will deal with the composition of the main resolution methods in UAE courts and their classification, and how to provide of the judges with fundamental training in mediation which is different from the traditional way to deliver justice, and guidelines that is readily usable to promote great public satisfaction in mediation.

Section I: Structure of the Courts:

The courts in UAE are organized in three levels to achieve full extent of justice, the UAE adopts three levels of courts for litigation purposes. This system enables effected party to challenge the case and present more evidence within the provisions of the law. The courts' degrees in the UAE are:

• Court of First Instance (federal and local)

• Court of Appeal (federal and local)

• Federal Supreme Court (at the federal level) and the Court of Cassation at the local level of the emirates which have independent judicial departments.

If the ruling of the Court of First Instance is not satisfactory, it can be challenged before the Court of Appeal and then the Court of Cassation according to the provisions of Federal Law No. 42 of 2022 concerning the Civil Procedural Law.

Court of First Instance:

Court of First Instance is the first degree of litigation and has the jurisdiction to hear all civil, commercial, administrative, labour, and personal status lawsuits. Its jurisdiction includes examining statement of claims, authentication of documents, all urgent matters related to disputes among the people and safeguarding their rights. It is also in charge of enforcing judicial execution deeds, as well as executions by deputation or reference.

Court of Appeal:

Court of Appeal is the second degree of litigation which entitles the litigant affected by the Court of First Instance to appeal his/her case before a higher court in accordance with the provisions of the civil and criminal procedural laws effective in the UAE.

Only the convicted may appeal the court judgement. Thus, appeal is not possible to anyone who accepts the ruling explicitly or implicitly.

The time limit to challenge a ruling starts from the day following its issuance unless the law provides otherwise. The time limit for appeal shall be (30) days unless otherwise provided by the law, and (10) days in urgent cases. The failure to observe the time limits of appeal in the judgements results in the extinguishment of the right of appeal.

Court of Cassation

Court of cassation is the higher judicial body (Appellate Court) with power to try cases contested by the Court of Appeals. It supervises the interpretation of laws and its proper enforcement. At this court, litigants may appeal only on points of law alone, such as violation of law or on erroneous application or interpretation.The appeal must be filed within (30) days of the judgement of the Court ofAppeal if the value claimed in the action exceeds AED 500,000 or cannot be evaluated. All decisions of Court of Cassation are final and binding and are not subject to appeal.

Personal status court (family court -Sharia)

Personal status court handles all family cases related to matters such as marriage, divorce, alimony, guardianship, custody and visitation, proof of maturity, proof of lineage and inheritance. Federal Law No. 28 of 2005 applies to personal status cases. Article 1 of the Law provides that the Law shall apply to all UAE nationals except non-Muslims in which case they shall be governed by special rules relating to their specific creed or sect.

TheFamily Guidance Section usually handles personal status cases free of charge before they are referred to trial at the Court of First Instance. If both parties fail to reach an amicable agreement, the dispute will be referred to the Court of First Instance after the payment of the court fee, if applicable.

Civil courts

Civil courts handle the cases related to the financial rights of individuals and legal entities such as government departments, companies, and institutions. The cases can be related to disputes about validity, implementation, cancellation or termination of contracts, intellectual properties, lands, and mortgages.

Commercial courts

Commercialcourts handle commercial contracts and commitments, banking processes, commercial papers, bankruptcy, and its reconciliation issues. Federal Law No. 50 of 2022 regarding commercial transactions regulates types of cases related to above issues.

Criminal courts

These courts handle criminal cases initiated by the federal or local prosecution in each emirate.

Section II: Main dispute resolution methods:

Large commercial disputes in civil and commercial matters are heard before the First Instance Court. The relevant branch of the First Instance Court is that with local jurisdiction over the place of the defendant's domicile. The following notes relate to procedures applicable in the First Instance Court and the Court of Appeal.

Rights of audience/requirements: lawyers in UAE are progressively licensed to attend before various levels of courts, from the Small Claims Court up to theFirst Instance Court, the Court of Appeal and finally the Court of Cassation. However, it still takes a lawyer years of practice from registering as a trainee lawyer to obtain rights of audience before the Court of Cassation.

Confidentiality: Court proceedings are public. However, only the parties and their lawyers can access court files.

Pre-action conduct: Courts do not impose any rules on the parties in relation to pre-action conduct. However, abuse of judicial process can be grounds for a compensation claim.

Starting proceedings: In contractual or commercial claims, the plaintiff (using a court process server)must first serve notice on the defendant, giving an opportunity to comply with the claim.

Notice to the defendant and defence: If the defendant does not comply within the time given in the notice, the claimant can start an action by registering a statement of claim with the court clerk. A court process server then serves the statement on the defendant.

If the defendant is abroad (not domiciled in UAE), service is through diplomatic channels, and is affected by submitting the notice to the Public Prosecution.

Subsequent stages: After the defendant receives the statement of claim, the case progresses with adjournments, to allow the parties to submit their arguments (mainly through written memoranda and dockets of documents). There is no requirement that the defendant files a defence on receiving a statement of claim. The process of submitting a defence is regulated by court hearings, during which the judge invites the defendant to submit its statement of defence.

Oral pleadings before the First Instance Court are generally quite brief. Adjournments generally range from a few weeks to several months.

The court usually refers complex accounting and most technical issues to an expert or a panel of experts, who are typically employees of the federal Ministry ofJustice or judicial authorities. First instance proceedings usually take two to three weeks. Appeals are considered as findings of fact can be changed and even new experts appointed and could take up to two weeks or more. In commercial and civil matters, a further appeal may be made on errors of law to the Court ofCassation.

Finalremedies

At the full trial stage all remedies are available, including:

· Monetary compensation

· Specific performance

· Declarations

Damages are generally compensatory, but the court may, in rare cases, impose penalties for non-compliance with court orders.

Evidence

Disclosure:  Discovery in the common law sense (that is general and enabling the parties to go on "fishing expeditions") is not available. However, any party can request the court to order disclosure of a specific document, provided that:

· The document is identified in reasonable detail.

· The requesting party shows that it is material and relevant.

Privileged documents

Privilege is not recognized in UAE. General discovery is not allowed, and the parties cannot go on fishing expeditions. Internal confidential documents are therefore protected to a certain extent, as the opposite party may be unable to access these documents.

Other non-disclosure situations: Confidential documents between a party and a third party are not ordered for disclosure, unless the requesting party shows that they are material and relevant.

Oral evidence: Witnesses of fact must appear in court and are generally questioned by the court and can also be questioned by counsel.

Right to cross-examine: Both parties' counsel can ask witnesses some questions but not to the extent of examination-in-chief and cross-examination. The Courts generally do not allow extensive examination.

Appointment procedure: Experts are appointed by the court at its own discretion, or at a party's request. However, parties can also submit expert evidence. Court-appointed experts are normally appointed from a roster of experts at the Ministry of Justice.However, in certain cases where special expertise is required, experts can be appointed from universities and other institutions.

Role of experts: Experts appointed by the court are independent of the parties and are accountable to the court. However, when parties submit their own expert evidence, the experts can represent that party's interests.

Right of reply: Experts' findings of fact and reports can be challenged, and the court can refer issues back to the same experts or re-assign them to different experts. However, the parties cannot directly cross-examine the expert.

Fees: The expert fees for referral requested by one of the parties are usually paid by the requesting party (the court determines this in its preliminary judgment appointing the expert). Fees for experts appointed at the court's initiative must usually be divided equally between the parties. If a party fails to make the payment, the other party can make the full payment after first obtaining the court's permission.

Appeals

The rules concerning appeals of first instance judgments in large commercial disputes,

Appeals from the First Instance Court are to the Court of Appeal. The relevant branch of the Court of Appeal depends on the defendant's domicile. Further appeals can be made before the Court ofCassation.

Grounds for appeal

Appeals to theCourt of Appeal can be based on alleged errors of fact or law (the incorrectapplication of law or inadequate reasoning). Further appeals to the Court of Cassation are possible on alleged errors of law. A Court ofAppeal's judgment may be appealed before the Court of Cassation within 30 daysof the Court of Appeal's decision.Oral pleadings before the Court of Appeal aregenerally very brief. In appeals to the Court of Cassation, the parties havegreater flexibility for more extensive oral pleadings.

Appeals fromFirst Instance Judgments are in effect new trials (that is, all issues of fact can be reconsidered, although no new claims are allowed) and usually take from one to month. Appeals to the Court of Cassation take much longer, unless a stay of execution request is made (to stay execution of a Court of Appeal decision),which is generally heard within a month.

Classactions

Class actions are recognized in collective relationships such as collective labour agreements. Labor law provides procedures for settlement of collective labour disputes between employers and all employees or a group of employees. Other than labour disputes there is no mechanism for class actions.

Enforcement of a local judgment

A writ of execution is obtained from an execution judge, and the judgment is enforced through court bailiffs. Numerous methods are available to delay execution, including a contestation case (which stops execution for a few months) and third-party recovery claims in relation to attached assets.

Cross-border litigation

Local courts respect and apply valid choice of law provisions. However, mandatory statutory provisions of UAE law (as part of public policy) cannot be contracted out of, even if a foreign law is chosen. For example:

· The right of a commercial agent to receive compensation for unjustified termination or non-renewal of the agency cannot be derogated from.

· UAE law has mandatory application in relation to technology transfer agreements.

UAE courts have mandatory jurisdiction in all claims (except for those relating to real property abroad) against citizens and foreign persons domiciled in UAE. In addition, courts have jurisdiction in claims relating to property in UAE or contracts that are implemented in the territory. Courts will decline to review cases where the parties have agreed to resort to arbitration. This is unless the arbitration provision is waived or deemed to be waived if the defendant has not raised this issue before dealing with the merits. Foreign proceedings and documents can generally be validly served by formal notice through a court process server.

Generally, sworn statements can be made by a witness in before a notary public (a governmental official with authority to certify statements and contracts).Whether the sworn statements are admissible in foreign proceedings depends on the courts in the foreign jurisdiction. In practice, sworn statements given before a consular office at the embassy of the country where the case is being heard can also be acceptable.

Enforcement of a foreign judgment

UAE is not a party to the 1965 HCCH Convention on the Service Abroad of Judicial and ExtrajudicialDocuments in Civil and Commercial Matters. There are several bilateral treaties between UAE and some countries and multilateral treaties that relate to judicial enforcement.

Generally, the enforcement of a foreign court judgment would require:

· Valid jurisdiction by the court issuing the award.

· Reciprocity

Unless there isa treaty that allows for direct enforcement, a court case must be initiated to obtain a judgment for enforcement.

 
Finally, these are the Main principles of dispute resolution methods process in UAE.

Before filing a case, whether it is a civil, labour, or personal status, the UAE's court system facilitates alternative methods of dispute resolution through committees, which include:

· commercial disputes resolution committees

· family guidance committees

· mediation and conciliation centres     

· labour dispute resolution committees.

These committees aim to solve disputes amicably and reduce the burden of judicial fees. If an amicable settlement is not possible, the litigating party can apply for a 'No objection' letter from the relevant mediation committee/centre and submit a statement of claim to the relevant court. Then, the case is filed to be seen by the judge in the respective Court of First Instance.

Conciliation and Reconciliation Centres established early to settle Civil and Commercial Disputes remains not effective enough except in family cases.

Section III: Alternative dispute resolution:

Arbitration:

Arbitration in the UAE is reliable and efficient method for resolving conflicts in many cases.InMay 2018, the UAE issued Federal Law No. 6 of 2018 on Arbitration. The arbitration law applies on:

• any arbitration conducted in the UAE, unless the parties agree that another law should govern the arbitration, provided it is not in conflict with the public order of the state.

• any international commercial arbitration conducted abroad if the parties chose this law to govern such arbitration.

• any arbitration arising from a dispute in respect of a legal relationship, whether contractual or not, governed by UAE law, unless it is excluded by a special provision.

In addition to Federal Law No. 6 of 2018 on Arbitration, arbitration is also governed by Federal Law No. 42 of 2022 concerning the Civil Procedural Law.

In the UAE, the legal and financial landscape is divided between two types of zones:

The“onshore” zone:it covers most of the UAE’s territory and is subject to the federal laws and regulations of the UAE government. Within this zone, businesses and individuals are governed by the UAE Civil Code, the UAE Commercial Companies Law, and other federal laws applicable to various aspects of business, trade, and activities conducted in these areas.

The“offshore” zones, or “free” zones: They are established as independent jurisdictions with their own legal and regulatory frameworks. They operate under separate laws, often based on common law principles, and have specialized courts to adjudicate matters within their jurisdictions. The DIFC, founded in 2004, operates as a financial free zone with its legal foundation established by Federal Law 35/2004 and Dubai Law 9/2004. The ADGM, established in 2015 in Abu Dhabi, functions as an autonomous financial free zone with its own set of laws, including a Court of First Instance and a Court of Appeal, based on common law principles.

Agreements to arbitrate disputes are governed by different laws, depending on the seat of arbitration:

• The governing law for disputes seated onshore in the UAE is Federal Law No. 6 of 2018 concerning Arbitration (UAE Arbitration Law).

• Concerning disputes for which the seat of arbitration is the DIFC, they are subject to the DIFC Arbitration Law No. 1 of 2008 (DIFC Arbitration Law);

• The ADGM Arbitration Regulations 2015 (ADGM Arbitration Law), which are based on the UNCITRAL Model Law, apply to arbitrations where the seat of the arbitration is the Abu Dhabi Global Market.

Regardless of the location of the seat of arbitration, these laws can also apply to arbitration disputes if the parties explicitly decide to designate them in their arbitration agreement as applicable laws. Arbitration is prevalent in construction disputes, oil and gas, shipping, and hotel management contracts. Major public private projects usually provide for several stages ofADR, including mandatory negotiations and arbitration.

Mediation:

Apart from arbitration, which is fairly developed and is subject to the Arbitration law, mediation remains subject to contractual agreement, and is not formally regulated by legislation until 2021.

In 2021, the UAE legislator made his first move to adopt officially Mediation for the Settlement of civil and commercial disputes.Federal Law No. (6) of 2021 on Mediation was issued in UAE and amending some provisions of Federal Law No. (17) of 2016 Establishing Conciliation andReconciliation Centres in Civil and Commercial Disputes.

Finally in 2023, Federal Law No. (40) of 2023 on Mediation was issued in UAE with the aim of unifying all rules and principles of Mediation in one code, that we can call‘LAW of MEDIATION’. The new federal law combines the rules of judicial mediation, privet mediation, and how Conciliation and Reconciliation Centres work in Civil and Commercial Disputes all together in one code.

The UAE mediation law provides for two types of mediation: Judicial mediation. Competent courts can refer disputes to mediation at any stage, provided the parties consent, and non-judicial mediation. Parties with a mediation agreement may directly resort to a mediation and conciliation centre before commencing court or arbitration proceedings. The courts will prevent either party from commencing court or arbitration proceedings unless the mediation agreement is invalid or impossible to implement.

The mediation law implements international best practices likely to encourage mediation in commercial disputes. These include the protection of “without prejudice” discussions in mediations, freedom to select and appoint a private mediator, and a registration regime to ensure suitably qualified mediators.

Proposals for Judges and how to enhance their skills:

Mediators should have strong mediation process skills and the temperament and training to listen well, facilitate communication across party lines and assist the parties with settlement negotiations. Judges of the court are responsible for mediation programs and asa result they need special training to be able to manage (ADR) program administrator as the key tasks are not ordinary judicial functions.

Training will provide judges with an introduction to the topic of Mediation as a new tool ofAlternative Dispute Resolution (ADR) and must be designed to give participants basic knowledge of the terms and definitions specific to Mediation, the need for Mediation in U.A.E, types of MEDIATION processes and their applications.

The content of the training course must provide Judges with a foundation to build upon, to use it in their professional lives, and provides a basic overview of MEDIATION that will be useful to policy makers who are interested in creating MEDIATION resources in their jurisdiction. MEDIATION derives its fundamental assumptions and practices from the interrelated fields of conflict resolution, negotiation, and communication. Thus, a good mediator, early evaluator, or is not only one who is knowledgeable about conflict resolution, but also one who is trained in negotiation and communication. Participants will therefore also be provided with a foundation in negotiation and communication skills, which will prepare them to participate in MEDIATION processes. Due to time considerations, the participants will be provided with basic information about these processes but will be trained uniquely in the process of mediation.

The workshop is to take place over a period of two days, with approximately six hours of training scheduled per day. The general focus of each day of the course is as follows: Day 1: Conflict resolution and conflict management. Day 2: Negotiation and communication skills with special emphasis on mediation phases Participants will be invited to put the knowledge learned during the course into practice.  They will participate in simulations in which they will play the role of mediator in a real-life dispute. These simulations serve a dual purpose: (1) to ensure the internalization of the skills learned during the workshop, and (2) to allow the instructor to view each participant’s mediation style and offer individual and constructive feedback.

TRAINING OBJECTIVES:

1.     To Reflect seriously on the mediation process to increase mediation and settlement conference confidence and effectiveness.

2.     To Learn the language of negotiation, mediation, and settlement conferences so that all these processes can be placed in a practical, conceptual framework.

3.     To understand continuing contributions from the fields of business, communication, psychology and law and their application to negotiation, mediation, and settlement conferences.

4.     To develop more effective personal negotiation skills within the context of mediation and settlement conference dynamics through practice exercises and case studies.

5.     To identify strategies in dispute resolution and apply them to actual cases.

By the end of the training, judges will:

1.     Have familiarity with Mediation terms and definitions;

2.     Understand conflict and how to resolve it;

3.     Understand basic negotiation skills;

4.     Be able to conduct mediation.

5.     Enhance their skills in negotiation skills.

These are some ideas of how to provide judges with fundamental training that is readily usable to achieve their goal and promote great public satisfaction. Over the years each (ADR) process has been successfully used for a wide range of civil and commercial cases around the world. Although all of them are still used in some places, mediation has become the clear “winner” as the most likely ADR process to be widely institutionalized in the courts and to be chosen by attorneys and parties for all kinds of civil disputes. I hope this will be the situation in U.A.E in the coming Future.

This presentation was published on 22 June 2018 by the International Association of Lawyers (UIA), regarding a School Mediation project, implemented in Lebanon in 2010 by the “Centre Professionnel de Médiation” – Professional Mediation Centre (CPM)-USJ, the first center for mediation in Lebanon and the Middle East established in October 2006 within Saint Joseph University (USJ) in Beirut¹.

The presentation is divided into four sections:

I. We start with the Project implementation section by answering the following questions:
What is this Project about, and why was it implemented? How was such implementation planned and executed, and how is peer mediation practiced?

II. Then we take a look at its evolution among other projects, particularly its growth, the challenges it faces, and the activities developed throughout the Project.

III. And then, we go through the outcomes of this Project in relation to various actors and at various levels.

IV. Finally, we consider how the furtherance of this Project will be in line with the Project’s initial objectives.

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I- IMPLEMENTATION

A. What is the CPM School Mediation project about and why was it implemented?

The Project is about educating students to use non-violent communication and to become peer mediators. In this regard, the Center defines School Mediation as: “Mediation by young people, for young people, and between young people." The challenges of the Lebanese context with its social, cultural, religious and political pluralism and diversity, and societal needs for peace and stability, are at the core of the incentive to setup such a project. A field study carried out in 2009 by the Founder and Director of the Center Mrs. Johanna Hawari led to the birth in 2010 of “Mediation in Schools” Project.
The project aims at developing both Peace Education and Youth Citizenship.

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B. How was this Project implemented?

Various elements come into play and participate together in the effective implementation of this Project.

1. A Qualified team at the Center composed of specialized Trainers to train in School Mediation; an Educational Committee in charge of the Project pedagogy, organization and operation; and a Project Coordinator who monitors the Project implementation and progression follow-up with the related schools.
   

2. A targeted audience: The Project is aimed at various beneficiaries, and more particularly public and private schools on the overall Lebanese territory and in the entire Middle East; and specifically, school students aged from 9 to 17, and more generally, all school community actors.
   Since all impact project implementation and development, the Center provides awareness sessions in line with the Project and covering themes of nonviolent communication and conflict management tools for parents, schoolteachers and administrative staff.

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C. Training Programs:

The Center provides in both French and Arabic languages a training program adapted to the age of the student trainees, based mainly on practical exercises and scenarios. The training program is divided into 2 modules:

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1. 10 hours of non-violent communication and mediation training covering four main themes:

• Positive Self-knowledge and knowledge of others by educating students to perceive themselves and others positively; name and express emotions and needs and link them together; facilitate self-expression; and get a better understanding of others’ point of view.
• Conflict and its causes: Students are taught to expand their vision of the conflict, identify its causes, such as preconceptions, rumors, verbal and non-verbal violence, and bullying; and analyze the conflict for:
• Conflict prevention by practicing communication tools and techniques such as Active Listening, Empathy and Non-Violent Communication language.
• Overview of the mediator role and mediation process and stages
  
  ‍Further to this part of the training, the students answer a questionnaire and indicate their desire to follow an additional 8 hours of training to become peer mediators. Among them, a group of 15-17 students will be selected.

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2. 8 hours training in the practice of mediation during which students deepen and practice the role of the mediator and mediation process and stages.
   
   At the end of this training, students become trained peer mediators allowed to intervene in a conflict to help their peers to manage and resolve their disputes amicably.

The CPM Center delivers to them a Certificate of Training in School Mediation; a Badge indicating their status and worn by these students when they circulate alternately between their peers on school playground according to a calendar agreed upon; and an Engagement for them to sign, mentioning their commitment to act as peer mediators, to be available to mediate when asked to, and to follow continuous training in mediation.

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D. Peer Mediation - Practice: How does it work?

The structure and the rules and process to follow during the practice of peer mediation were set up by the Center in coordination with the schools and peer mediators.

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The Structure of Peer Mediation practice is as follows:

1. Who can suggest peer mediation?
   Any student, teacher, or school staff can suggest peer mediation to conflicting students. Peer mediators can also propose mediation to their peers.

2.  Who can mediate?
   Those who can mediate are peer mediators who accomplished training in the practice of mediation and who respect the engagement they signed and act accordingly. Two peer mediators can be provided through co-mediation.‍
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3. What can be mediated?
   Peer mediators are competent to mediate:
   
   (i) Small disputes such as misunderstandings, objects of insubstantial value, gossip, friendship problems, and exclusions, knowing that each school decides, in coordination with the Center, what types of conflicts peer mediators can mediate.
   - Are outside the competence of peer mediators and indicated to the students as such during the training and must be reported to persons in charge at school, the situations involving severe physical violence, a danger to the students or the school community (including drugs, alcohol, thefts, sexual assault…), extreme power imbalance, bully/victim problems causing great suffering.
   
   (ii) Disputes that occur between peers of the same age or younger.
   - Are outside the competence of student mediators and indicated to the students as such during the training, elder age’s conflictual situations, disagreements between students and teachers, and between parents.

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4. Where and when can mediation take place?
   The Center recommends that the school find a particular room for the peer mediators to mediate. Mediation takes place during breaks and never during class time.

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5. Which documents should be filled in by peer mediators following the peer mediation?
   At the end of the peer mediation, a sample report delivered by the Center mentioning the number of disputants, their gender, the subject of dispute, the issue of mediation, and the name of the peer mediators is filled in and signed by these mediators and sent back to the Project coordinator at the Center.

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a. Rules: The rules applied in Peer Mediation can be defined as follows:

• Peer Mediators act in their role of mediators by being impartial and respectful of each of the disputants, by being respectful of the confidentiality of the declarations made during the mediation process, and by helping the disputants to find a mutually agreed solution by facilitating communication between them.
• Mediation is voluntary (freedom to both disputants to choose/withdraw from mediation at any time; and to reach or not a solution); Mediation is confidential; Mediation requires respect for all disputants and mediators (non- interruption of the person speaking and refraining from aggressing this person).

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b. Process: The process applied in peer mediation can be described as follows:

• Peer Co-mediators meet with disputants, introduce themselves, and explain the role of mediators, the rules of mediation, and then ask the disputants if all the explanation is clear before starting mediation.
• The disputants introduce themselves; each tells his/her version of the story; mediators reformulate positively and objectively their saying and make sure each party listened and understood the other party's version.
• Subsequently, mediators summarize the situation, identify with the disputants the feelings and underlined needs, get the ok of the disputants on their summary, and search with them on any possible solutions.
• A brainstorming session begins, followed by testing of solutions with the disputants and helping them decide which is best for them.
• Peer co-mediators verify the verbal consent of the disputants for the chosen solution and thank each of the parties for their presence, trust and contribution to the mediation process.
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II- EVOLUTION

How did this Project evolve?

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A. Growth Statistics:

According to the statistics processed by the Professional Mediation Center:

1. There has been a growth in the number of schools which became partners to the Project, going from one school partner in 2010 to 30 school partners in 2018. Currently, the Center is receiving more requests from Lebanese schools to join the Project and is extending towards implementing a School Mediation project for the Middle East region.
2. There has also been an increase in the number of students trained for mediation who followed the 10 hours of non-violent communication and mediation training provided by the Center. From 97 students in 2010, they reached a 1583 figure in 2018, totaling up till this year 7380 students. As regards students who became peer mediators, their number was 10 in 2010 and rose up to 351 in 2018, reaching in 2018 a total of 1199 peer mediators.

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B. Challenges:

The practice of mediation by peer mediators and the involvement of the school community in the Project face a number of challenges:

1. Regarding the practice of mediation by peer mediators, challenges are related to the need of peer mediators to be recognized by their peers in their mission.
   
   Indeed, peer mediators need recognition and support from the other students to help them evolve in their practice, considering that a number of peer mediators expressed their frustration because of some lack of visibility and recognition from their peers. Some peer mediators suggested to increase awareness sessions in schools.

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2. Regarding the involvement of the school community in this Project, challenges are related to:
   
   (i) The schools’ principals’ enthusiasm to embrace this Project as theirs and to acknowledge that this Project needs time to deliver expected results, and therefore, to persevere in this project managing the challenges of time and of ongoing project financial funding to ensure its sustainability.
   (ii) The school community consciousness that changing the mentality from the usual approach to violence confrontation to a non-violent collaborative way of settling conflict and to mediation requires time and a long- time commitment from all school communities, and that peer mediation is not the only solution to violence but is one among other methods to reduce violence at schools.

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C. Activities:

These challenges drove the Center towards performing activities with the school partners.

These activities aim at meeting the needs of schools and students, deepening the mediation process within school community and fulfilling in depth the objectives of the Project.

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1. Day of Peace:
   
   Every year since 2012 a Day of Peace is organized by the Center and all school partners in the Project are invited to encourage peer mediators to participate.
   During this day, fun activities with mediation themes take place, which make it possible for peer mediators from various backgrounds to create links through discussing mediation topics and experience sharing.
   At the end of the Day of Peace, in line with the Project’s objectives and as a symbolic gesture, students:

• inscribe their name in a stone in plastic, and put it in a mold where they together form the cedar of Lebanon, a sign of identification, collaboration, and citizenship
  
• bind a colored ribbon to the "Ribbon of Peace", launched in 2013 by the Center, a real human chain connecting all those who pledge to work for the construction of peace in Lebanon. By doing so, peer mediators bind themselves to one another in this mission to be peacemakers.

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2. Mediation Week:
   
   Moreover, as of academic year 2016/2017, the Center started a ‘Mediation Week’ activities in schools.
   For one week, peer mediators raise the awareness of their peers in terms of mediation through entertainment games and fun activities so as to create attraction around mediation and reduce a kind of confinement that peer mediators sometimes face. This initiative was a real success.

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3. Annual follow-up sessions
   
   On the other hand, as of academic year 2016/2017, the Center organizes three annual follow-up sessions to the peer mediators, of 2 hours each. These sessions cover a summary of learned concepts, field experiences, and mediation role-play exercises.

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III- OUTCOMES

What are the outcomes of this Project on the Students who followed the training, on the School Community, on Mediation, and finally on Society at large?

Based on an evaluation report performed in 2017 by Ms. Lamia Hitti, a trainer at the CPM-USJ for seven public schools, and on a survey carried out by the Center in 2015 with the peer mediators of 12 private schools, numerous Project outcomes emerged:

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A. For Students:

1. Acquisition of a know-how in non-violent communication and mediation in terms of:

• Rules for healthy relations and daily life skills that can be used beyond schools, such as Active Listening, Empathy and usage of Non-Violent Communication language that 86% of peer mediators declared having already practiced at school or home, and 55% of them found that this approach improved their relationship with others.
• Consolidation of ethical and moral values and identification of right from wrong behaviors (i.e., respect, listening, non-interruption vs. violent communication, exclusion, bullying).
• Problem-solving techniques to understand and practice resolving a conflict in a collaborative non-violent way by seeking to find common ground between the parties, generating and evaluating alternative solutions to the conflict, and securing a win-win solution.

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2. Promotion of Well-being:

• Nonviolent communication and mediation training touch down deep in the human soul and transform it. This is reflected by the testimonials of students who followed these training, whereas according to the report mentioned above, 75% of them perceived a change of attitude and well-being following the training such as:
• Better self-control, as a significant number of students see themselves “more patient, less stressed, less impulsive, less judgmental, better listeners, having more acceptance and respect for others and a positive attitude in life”.
• Strengthening of self-confidence and leadership, as peer mediation gives students the opportunity to become actors responsible for the decisions they make towards a problem according to the rules and values of mediation, and therefore, to become more involved in the school community.
  

B. For School Community:

The outcomes perceived and received by the trained students necessarily impact the school community where students evolve. It was noted:

• An improvement in school climate, according to the report mentioned above, with a decrease in verbal and non- verbal violence, as well as a positive change in the attitude of some students;
• leading up to the prevention of conflict escalation with the negative consequences that this might have on the school community, as well as a reduction in time spent to resolve minor disputes and an increasing focus on learning for some students, which reflects positively on their grades.

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C. For Mediation

Education to mediation contributes to facilitate access to mediation and secure its proper application and expansion:

1. Knowledge and practice of mediation as of the youngest age facilitate access to mediation and proper application. Indeed, training students from their youngest age to practice the role of mediator and use the tools of mediators gives rise to a new generation knowledgeable of mediation, and who thinks straightforwardly of mediation as a conflict resolution process and strategy.
2. These young people can therefore easily carry and spread mediation properly and smoothly within society, and pass it forward to the next generation, thus contributing to its expansion.

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D. For Society

Karl Menninger said:  "What is done to children, they will do to society."

Indeed, educating young students to non-violent communication and mediation can be the pillar of a society in which youth embrace the culture of peace and nonviolent communication and become peace-building citizens.

This human and humanistic process conveyed by youth constitute a real hope for the spreading of a spirit of humanism between people in societies overwhelmed by violence, as well as for peacebuilding and stability.

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IV. FURTHERANCE

In line with what was presented above, and in order to fulfill the School Mediation Project's objectives, the furtherance of such Project requires:

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1. A strengthening of the Project by a significant involvement of the Schools’ Principals, as well as of parents and school staff, who can also benefit from this involvement in their everyday life.
2. A reinforcement of the student’s capacities by providing continuous training and consolidation of acquired concepts.
3. That educating to mediation becomes an integral part of the school curricula within schools;
4. That it becomes, in the long run, a project adopted by society and driving to a positive transformation in the region by preventing and amicably resolving conflicts; restoring and building undermined or destroyed relationships; and consolidating peace, democracy, and the culture of living together.

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Currently, the Project is in constant development, and the importance of educating to mediation has been felt on many Society levels, which led to the introduction of mediation in 2014 into the academic curricula as an optional course for all students of Saint Joseph University (USJ) in Beirut, and the organization by the Center since 2015 and in 2016 of Mediation Competitions between the Saint Joseph University faculties, and since 2017 of Interuniversity Mediation Competitions.

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Many achievements, hopefully to be soon completed by this educated youth.



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¹   Zeina KESROUANI is an Attorney at Law at the Beirut Bar Association, a Mediator and Trainer in Mediation, former Chief of the mediation section at the legal aid committee at the Beirut Bar Association, and a Member of the Lebanese Executive Committee of the International Association of Lawyers (UIA).

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In many Arab communities, when disputes arise, itis common for the parties involved to seek the guidance of a respected elder, community leader, or religious figure to help mediate and resolve the conflict. This tradition of early mediation is deeply rooted in the Arabian culture, where preserving harmony and maintaining relationships are paramount. The modern aspect of mediation involves a neutral third party who facilitates discussions between the disputing parties, helping them to reach a mutually acceptable resolution. In this context, mediation is not just a conflict resolution tool, but it is a means of upholding social cohesion and fostering mutual respect. While the concept of mediation is ancient, modern practices have evolved to include professional community mediators who bring a structured approach to the process. These mediators work alongside traditional figures in the community, providing expertise while respecting cultural norms.

Imagine a close-knit neighborhood in an ancient Arab town, where two families find themselves in conflict over a centuries-old olive tree that stands between their homes. One family is concerned that the tree’s roots are damaging their water pipes, while the other family views the tree as a sacred symbol of their heritage, deeply intertwined with their identity and history. The families initially consider seeking the advice of a community elder, but recognizing the complexities involved, they decide to engage a professional community mediator. Through this mediation, facilitated by someone who understands both the cultural significance of the issue and the technical aspects of the dispute, the families reach an accord. They agree to reinforce the pipes without uprooting the tree, preserving both the integrity of the property and the cultural significance of the olive tree. The mediation not only resolves the issue but also strengthens the bond between the families, leading to a shared commitment to preserving their neighborhood’s rich cultural heritage.

This olive tree scenario reflects the delicate balance between tradition and modernity that is often encountered in communities across the region. Disputes like these - whether they involve neighbors, family members, local communities or businesses - can challenge the harmony that is highly valued in society.

Community mediation addresses a wide range of disputes that can arise in daily life, offering a culturally sensitive approach to resolving conflicts, fostering dialogue and mutual respect while preserving the social fabric and saving the “Olive tree”.

Neighborhood conflicts, such as disagreements over property boundaries, noise, or the use of shared spaces, can quickly escalate if left unaddressed. Big family disputes, particularly those involving land ownership or exploitation, inheritance, marriage require careful handling to maintain family unity and honor. Schools and educational institutions also benefit from mediation, where conflicts between students, parents, and teachers can be resolved in a manner that upholds the dignity of all parties involved. Additionally, small businesses, often family-run, can use mediation to settle disputes that might otherwise damage relationships or reputations.

The advantages of community mediation are particularly significant in this context. It provides a cost-effective alternative to the often expensive and prolonged legal process. The confidentiality of mediation is crucial in a culture where maintaining one’s reputation and social standing is of utmost importance. Since the process is voluntary, it encourages cooperation and ensures that all parties are invested in the outcome. This collaborative approach aligns with the communal values that are deeply rooted in society and therefore protects the sacred “Olive tree”.

One of the most important aspects of community mediation is its ability to preserve relationships. Unlike court battles, which often result in winners and losers, mediation seeks to find common ground, which is essential in maintaining social harmony. This approach not only resolves the immediate conflict but also strengthens the bonds between individuals and families, contributing to the overall stability of the community and preserving the roots of the “Olive tree”.

Returning to our example, the resolution of the olive tree dispute through mediation illustrates the tangible value of this approach. The local communities and families not only found a practical solution but also deepened their respect for each other's cultural values. This outcome demonstrates how mediation can transform potential conflicts into opportunities for greater understanding and cooperation, fostering a sense of unity within the community.

Community mediation is a powerful tool for building stronger, more harmonious communities across the regions. By addressing conflicts with empathy, respect, and an appreciation for cultural values, mediation helps communities overcome challenges and emerge stronger. Amid ongoing disputes over resources, property, and access to services, mediation offers a peaceful alternative to escalation, providing communities with the chance to resolve issues without further deepening divisions. The tangible benefits of community mediation, from avoiding battles to preserving relationships in the midst of strife, are invaluable.

As our societies continue to navigate the complexities of modern life, the role of mediation in fostering peace and understanding will only become more important. In a region marked by the scars of conflict, fostering peace through mediation becomes an essential step towards rebuilding trust, unity and peace. In Lebanon for instance, where the effects of conflict and war conditions continue to devastate the social fabric, the role of mediation is not just important—it is urgent.

When disputes arise consider community mediation-not just as a solution but as an opportunity to heal the wounds that continue to affect our region, an opportunity to build a more connected and cohesive society around the “Olive Tree”.

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The author is co-founder of ADR Center, a European ADR provider based in Rome. He is a scientific-expert member of the mediation working group of the Council of Europe’s European Commission for the Efficiency of Justice, best known as the CEPEJ (seehttp://bit.ly/2D0UAhi). He discussed that work in his recentAlternativesfeature, “A New European Parliament Mediation Resolution Calls on Member States and the EC to Promote More Use,” 36Alternatives19 (February 2018) (available athttp://bit.ly/2F1Se1Z).

Since the mid-1990s, an animated debate has been carried out among practitioners, academics and lawmakers about the most effective approach to increase the embrace of mediation in a given jurisdiction, especially outside the United States.

This debate usually has been polarized between two alternatives: First, develop the culture of mediation by promoting the process’s advantages, and training mediators and lawyers, in order to create a spontaneous demand for mediations. Alternatively, other moves seek to introduce various legislative reforms to incentivize the reliance on mediation for litigants, and regulate the market in order to decrease the number of cases filed in court.

The debate soon evolved to the pros and cons of voluntary versus mandatory mediation. The vast majority of academics and practitioners objected that mandatory mediation was a contradiction in terms, and above all, a barrier to access to justice and against most nation’s constitutions.

Hundreds of conferences and articles have been dedicated to find the “magic formula” to increase the number of mediations.

As a result, most European jurisdictions have introduced new laws in the past two decades based mainly on the voluntary recourse to mediation, with some incentives for litigants, and an accreditation scheme for mediators to ensure high-quality mediation services standards.

Millions of dollars and Euros have been spent by governments, international donors and private institutions on projects and awareness campaigns to “achieve the balanced relationship between judicial proceedings and mediation” as stated in Article 1 of the 2008 EU Mediation Directive, known formally as the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (available at http://bit.ly/2ovxA4G).

With few exceptions, however, this approach failed; all available statistics in Europe report that mediation on average is used in less than one percent of the cases in court. This means out of 100 court cases, on average only one litigation is resolved by a third neutral mediator.

AN ITALIAN MODEL

Four years ago, a pilot provision was introduced in Italy within a wider legislative reform of a previous law on mediation for civil and commercial disputes. This provision–limited in time and scope and contained in just one paragraph–was able to generate alone more mediations than judicial proceedings in the disputes in which the process was applied. See “European Union Urged to Refocus Its Mediation Efforts on a Different Kind of Mandatory ADR,” 33 Alternatives 70 (May 2015)(available at http://bit.ly/2Cqx5AG).

Despite the complexity of the entire law (Legislative Decree Nr. 28 of 2010 reformed in 2013), this article aims to explain in simple terms the so-called Italian Mediation Model, the different results after four years of application, and the lessons learned.

We have noticed most commentators and mediator colleagues wrongfully refer to the Italian model as “mandatory mediation.” It is not. Under the Italian Mediation Model, there are three main ways for recourse to mediation:

1. Recourse by Voluntary Agreement of the Parties or by a Contract Clause. For any legal dispute, parties are always able to agree to go to an accredited mediation provider under the rules of the law. Litigants can benefit from fiscal advantages and tax credits for the mediation fees. If lawyers assist the parties and sign the mediation agreement, it will automatically become an enforceable document. When a commercial contract or a statute includes a mediation clause, parties must attempt to mediate before they can arbitrate or file a dispute in court. If no attempt to mediate is made, the judge or arbiter can, by his or her own motion or upon motion by a party, allow the parties a period of 15 days to file a request for mediation. This type of recourse is the so-called voluntary mediation, regulated by the law with accredited mediators, present in most European jurisdictions.
2. Recourse Ordered by a Judge. For any pending case in any trial court, or in a court of appeals, judges at their discretion can order the parties to attempt mediation after assessing the nature of the case, the stage of the trial, and the parties’ conduct. If ordered to mediation, the parties must file a request for within 15 days with a mediation provider. A judge is able to refer a case to mediation at any time before the closing arguments, or if a hearing is not expected, before oral discussion of the pleadings. In these cases, mediation is a condition for prosecution of the case in court that should be attempted between hearings without any delay in the duration of the judicial proceeding.
3. Recourse by Voluntary Agreement During a Required Initial Mediation Session. In limited civil and commercial matters—including joint real estate ownership; real estate generally; division of assets; inheritances; family businesses agreements; real property leases including rental apartments, business, and commercial; bailments; medical malpractice liability; damages from libel; and damages from insurance, banking and financial contracts—which account for only about 10% of all civil and commercial disputes, the Italian Mediation Model requires the plaintiff to first file a mediation request with a provider and attend an initial mediation session before recourse to the courts may be granted. The initial mediation session must be held within 30 days of the filing and in the presence of an accredited mediator and a lawyer. At this stage, a small administrative filing fee is requested–40 Euros for claims below a value of 250,000 Euros, and 80 Euros above. There is no obligation to pay more, unless the parties decide to voluntarily proceed with the full mediation procedure. In the initial session, the mediator explains to all parties and lawyers the process and its benefits for their case. The duration of this first meeting is can vary up to the mediator’s discretion and the parties wish. If one party does not attend this initial session, the judge will sanction that party in subsequent judicial proceedings. If during the initial session, one party decides not to proceed with mediation, then the party has fulfilled the mediation requirement and is able to “opt-out” and file the case in a court. There is no obligation to pay any additional fees. If the parties decide to proceed with mediation, the fees are determined by the case value and the process should last no more than 90 days.

DIFFERENT RESULTS

Four years after this law was introduced, in 2017 the combination of all three types of recourses produced about 200,000 total mediations. To better understand the approaches that worked, we need to break down that number of mediations and closely analyze it with the three types of recourses described, which shows three different sets of results—and three different levels of success.

1. Recourse by Voluntary Agreement of the Parties or by a Contract Clause. Out of 200,000 mediations, only about 20,000, were initiated in 2017 by the parties’ agreement to attempt to mediate when the dispute arose, or due to a contract clause. When initiated, these types of mediation reached a success rate of 60%. If we divide the number of “voluntary mediations” by the two million yearly filings of civil and commercial cases in the Italian courts where the recourse of mediation is completely voluntary, the average ratio is less than 1%. In these disputes matters that count over 90% of all disputes in Italy (eg. breach of contracts, extra contractual damages, partnership dissolutions, etc…), there has not been a recorded substantial decrease of incoming cases in court from 2013.
2. Recourse Ordered by a Judge. Out of 200,000 mediations, only 1,900 of mediations were initiated by an order of a judge. Compared to about three million civil cases pending in the Italian courts, the ratio is less than 0.1%. So out of each 1,000 pending cases in court, only one judge ordered the litigants to attempt a mediation process. It is evident that there has not been a substantial decrease in pending cases due to mediation from judge referrals. It’s clear that Italian judges should be trained more to use their power to refer parties to mediation.
3. Recourse by Voluntary Agreement during a Required Initial Mediation Session. An incredible 90% of mediations–about 180,000–were initiated due to the first required mediation attempt in the total matters mentioned above. The average success rate was almost 50% when the parties voluntarily agreed to initiate the full process during the initial meeting. If the number of these Type 3 mediations is divided by the 140,000 yearly incoming civil and commercial cases in dispute matters where the first meeting is mandatory, the ratio is more than 100%. This information verifies for the first time in Europe that Italy has more mediations than cases in court—at least in this category. Additionally, since 2013, with Type 3 dispute matters, a substantial decrease was recorded of cases filed in court. (There were 30% decreases in disputes over joint ownership of real estate; a 40% drop in disputes over rental apartments, and a 60% plunge in adverse possession disputes.) And it is worth noting that the European Court of Justice ruled that this Italian provision on the mandatory first meeting is fully compatible with the law.

LESSONS LEARNED

With all due respect to the opinions and theories on the right approach to substantially increasing the number of mediations in a jurisdiction after many years of trial and errors, it is time to analyze objectively the verified results of different approaches in order to evaluate what worked and what failed.

The Italian statistics from the past four years give a clear illustration of drastically different results from the three different types of recourse to mediation currently in place. The contrasting results occur within the same jurisdiction–with the same citizens, lawyers, judges–and prove the number of mediations is not dependent on the “culture” or quality of mediators, but the most effective legislative mediation in place.

Statistics show that currently, the Type 3 model, “Recourse by Voluntary Agreement during a Required Initial Mediation Session” is the only effective model that can generate enough mediations in a period of two or three years for an entire jurisdiction.

This first meeting works well with five important conditions:

1. The relevant parties of the dispute should be present in person; if the lawyer is without the client there is little chance to proceed to the full mediation process;
2. The session should be administered by an experienced and well-trained mediator;
3. The session should be held in a short period of time since the filing of the request and the fee should be minimal in order of not be considered a barrier to the access to justice;
4. The parties when present can decide to easily “opt-out” without sanctions or voluntary continue the process; and
5. Substantial sanctions should be given in the case of an absent party during the subsequent judicial proceeding.

After witnessing thousands of first mandatory mediations, this author can attest to the effectiveness of having all decision makers in the dispute together in order to decide if they want to opt-out and go to court or continue with the full mediation process.

After talking with the parties and their lawyers about the advantages of mediation for their case, in a joint or separate meetings, in more than 50% of the cases I am able to convince the parties to give mediation a chance.

Without having all parties in front of the mediator, present at the same time, and around the same table, it would be impossible to reach so many agreements to initiate a mediation process, as the statistics prove.

In conclusion, the Required Initial Mediation Session, with an easy opt-out, has been proven to generate a substantial number of mediations in a given jurisdiction in two or three years, providing the best advantages of mandatory and voluntary mediation without their disadvantages.

The Required Initial Mediation Session can be introduced step-by-step, within a legislative reform or in court-connected mediation program, with the relevant adaptations to local needs, in different jurisdictions as Greece and Turkey have recently done with a great success. See Leonardo D’Urso, “How Turkey Went from Virtually Zero to 30,828 Mediations in Just One Month,” Mediate.com (Feb. 22) (available at http://bit.ly/2GRW2DB).

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Saint Joseph University Dubai, branch campus of Saint Joseph University of Beirut, is launching mid-February a mediation training program in collaboration with its Professional Mediation Center of Beirut (CPM).The CPM has been founded in 2005 and has since built its expertise as a mediation training center, a mediation services provider and an active center promoting mediation through projects and research in the Arab world. To date, the CPM has trained more than 900 mediators.

The training program in Dubai consists of 60 hours of training, mostly comprised of practical exercises to help the participants master the mediation tools and techniques.It is composed of 5 modules tackling the mediation principles, commercial mediation, family mediation, mediation law and communication tools; and 5 practical workshops to coach the participants in their practice of mediation techniques.

The training will be delivered in Arabic by renowned mediation experts and practitioners.

Grab this chance to participate in one-of-a-kind training that will change your way to look at conflicts and will have a meaningful impact on your development professionally and personally.

More details in the brochure attached: https://mcusercontent.com/b40381901001ac88a2c7da5c6/files/ada6f7af-bba0-ff26-eefb-d20187a9ea07/Brochure_Mediation_training.pdf

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Introduction

If you find yourself in the midst of a legal dispute, you might feel confident that taking the matter to court is the best option, especially when you have a strong case. After all, who wouldn’t want to see justice served swiftly and decisively? And why show any vulnerability when holding all the cards? However, before you proceed with a lawsuit, it’s essential to consider alternative dispute resolution methods such as mediation. In fact, statistics show that nearly 70-80% of mediated cases result in a settlement, highlighting the effectiveness of this approach. These are cases where a settlement was not achieved before the mediation.

You might be surprised to learn that mediation offers many advantages, even when your case appears unbeatable. For example, a dispute between Apple and Samsung was successfully settled in 2012, and the outcome was favourable for both parties. These real-life examples demonstrate the potential benefits of embracing mediation, even in complex and contentious legal disputes.

In this blog, we’ll explore why mediation makes sense for legal cases, simple or complex, and how it can help maximize outcomes for both parties. By understanding the various practical benefits of mediation, such as cost savings, time efficiency, and potential for relationship preservation, you can make a much more informed decision about the best course of action for your particular situation. After all, reaching the best possible solution is better than any other solution, including winning or a weak settlement.

Why mediate, especially when you have a strong case?

1. Cost-Effectiveness and Time Efficiency

As Benjamin Franklin wrote in his essay “Advice to a Young Tradesman,” time is money – a principle that holds true when it comes to legal disputes. Legal proceedings can be expensive and time-consuming. The costs can quickly add up between court fees, expert fees, and the time spent in litigation. Mediation, on the other hand, is typically much more cost-effective, as it often involves fewer meetings and requires less time. By opting for mediation, you can resolve the dispute more efficiently and save considerable money.

Mediation is typically faster than both litigation and arbitration, as it focuses on a collaborative approach where both parties work together to resolve the dispute. Unless it is a very complex dispute with multiple parties and issues, the mediation sessions can last anywhere from a few hours to a few days, and most disputes are resolved within a single session.

On the other hand, litigation is generally the slowest method of dispute resolution. There are various processes involved in litigation, including filing a lawsuit, the entire discovery process, and going to court for a trial. These processes can take a long time, from several months to even several years, mainly depending on the case’s complexity, the busyness of the courts, and, more importantly, the parties’ convenience. Similarly, arbitration is often faster than litigation but may still take longer than mediation. The process usually involves a panel of one or three arbitrators who listen to both parties and make a binding decision. The time frame for arbitration varies greatly depending on the complexity of the case and the availability of the arbitrators, but it typically takes several months to over a year.
Please note that these time frames are general approximations and can vary depending on factors such as jurisdiction, the specific dispute, and the parties involved. In comparison, a 70-80% chance to settle within days, and move on is certainly an option to be considered.

2. Collecting Your Hard-Earned Money: A Challenging Reality

Even when a judge rules in your favor, there is no guarantee that you will receive the money owed to you promptly – if ever. Winning a judgment is just the first step in the process; enforcing it and actually collecting the funds can be an entirely different challenge. Are you prepared to take on this risk and potentially face further frustration after investing significant time, effort, and resources into the legal dispute?

It’s important to consider whether the defendant may be unable or unwilling to pay the awarded sum, even after a court ruling. Sometimes, they may attempt to hide assets, declare bankruptcy, or ignore the judgment. This could lead to additional legal battles and enforcement efforts, prolonging the process and increasing expenses.
On the other side, mediation settlement agreements are implemented voluntarily in the vast majority of cases. The reason for this is simple. They are based on the parties’ willingness and usually include the timelines, terms, conditions, safeguards and guarantees agreed upon and considered necessary by the parties. By recognizing the potential challenges and weighing them against the advantages of mediation, you can make a more informed decision about the best path forward for your specific situation.

3. Reduced Stress and Emotional Toll

The adversarial nature of litigation can be incredibly stressful for everyone involved. With its more collaborative and solution-focused approach, mediation often reduces the emotional toll on both parties. By choosing mediation, you can maintain a more balanced and less stressful atmosphere, leading to more productive discussions and a better overall experience. Furthermore, mediation allows the parties to meet separately with the mediator when joint meetings are not productive anymore, and the tension rises. This creates an environment where the emotional costs of conflict, often hidden and considered by parties when it is too late, are minimized to the extent that parties appreciate the process and the chance to have a “different” conversation in the presence of a professional mediator.

4. Preserving Relationships

Legal disputes can be emotionally draining and may strain or even sever relationships between the parties involved. Litigation bring conflicts to a resolution, a legal binding solution, but do not end them. The impact on the relationship between the parties is generally negative, given all the public blame and shame. Mediation, by contrast, fosters open communication and collaboration, making it possible to resolve disagreements while preserving relationships. This is especially important when the disputing parties have ongoing personal or business connections. By working together to find a resolution, all parties can walk away with a sense of closure and the potential for a more positive relationship moving forward.

For instance, consider the case of divorce mediation. This process can be particularly helpful and beneficial for families when resolving emotional and familial conflict, as it can decrease the negative effects that divorce may have on children and other family members. By engaging in mediation, divorcing couples can communicate openly and work together to find a solution that best serves their family’s needs, ultimately leading to a healthier post-divorce dynamic.

Similarly, imagine two business partners facing a disagreement over profit allocation, threatening their long-standing friendship and partnership. By opting for mediation instead of going to court, they can express their concerns, understand each other’s perspectives, and find a compromise. Through this collaborative process, they not only resolve their financial dispute but also address underlying communication issues, ultimately preserving and strengthening their personal and business relationship for the future. In both cases, mediation proves to be a valuable tool for maintaining and nurturing relationships during difficult times.

5. Confidentiality and Privacy

Court proceedings are public, meaning that sensitive information may become a matter of public record. This can be damaging to both parties’ reputations and may lead to unwanted publicity. Mediation, on the other hand, is private and confidential. The discussions and agreements made during mediation are private, allowing you to protect your reputation and maintain your privacy. Confidentiality is generally formalized, and parties usually sign an agreement to mediate, including provisions that create the “safe space” necessary for open and honest communications. This space allows parties to disclose information without being concerned that what is shared will be used against them in subsequent proceedings.

For instance, consider a case where a high-profile company is involved in a legal dispute with a former employee over allegations of unfair dismissal. If this case goes to court, details of the dispute could become public knowledge, leading to negative publicity and a potential loss of trust from investors, customers, and other stakeholders. This loss of trust could ultimately impact the company’s bottom line, as customers may choose to take their business elsewhere, and investors might reconsider their investments.

In another example, two business partners embroiled in a contentious disagreement over intellectual property rights could face severe reputational damage if their dispute is aired publicly in court. This could lead to losing credibility within their industry, making it difficult to form future partnerships or attract new clients.

By choosing mediation, these parties can work through their disagreements in a confidential setting, allowing them to address sensitive issues without the risk of public exposure. This can help preserve their reputations, protect their relationships with stakeholders, and ultimately safeguard their businesses’ bottom lines.

6. Control Over the Resolution

When you take a case to court, you put the outcome in the hands of a judge or jury. In mediation, however, both parties have an opportunity to negotiate and reach an agreement that suits their needs. This collaborative approach allows for creative solutions that may not be possible in a courtroom setting. You can tailor the outcome to address the specific issues at hand, leading to a resolution that better satisfies both parties. A Romanian saying is, “An unfair settlement is better than a fair judgement.“. This saying goes back to the parties’ control over both the mediation process and its outcomes. Not only is any party free to walk away from mediation at any time, but that freedom is extended over any procedural or substantive aspect, including the resolution. This is a great strategy for managing the risk of losing.

7. Higher Compliance Rates

Since both parties have a hand in crafting the resolution during mediation, there is often a higher rate of compliance with the agreed-upon terms. When a judge imposes a decision, one party may feel resentful or dissatisfied, leading to non-compliance or further disputes. Mediation can increase the likelihood of a lasting resolution that both parties willingly adhere to. This is highly related to the needed procedural satisfaction for voluntary implementation of the mediation settlement agreement. Values like respect, dignity, fairness and humanity are central and lead to high compliance rates.

Conclusion

While relying on the legal system as the primary dispute resolution approach to resolve a dispute may be tempting, especially when you have a strong case, mediation offers numerous benefits that make it a compelling alternative. Mediation can lead to more satisfying outcomes for everyone involved, from cost savings and time efficiency to preserving relationships and maintaining privacy.

If you find yourself in a legal dispute with a seemingly strong case, and direct communications and negotiations don’t seem to work, take a moment to consider the advantages of mediation before proceeding with a lawsuit. By opting for this collaborative approach, you can maximize outcomes, save time and money, and maintain control over the resolution. By keeping an open mind and embracing the benefits of mediation, you may find that it not only leads to a more satisfying resolution, but also fosters a better understanding between parties and paves the way for a more positive future. In the end, mediation has the potential to transform a seemingly daunting legal conflict into a constructive and mutually beneficial experience. So, before diving headfirst into litigation, give mediation the consideration it deserves – you might be pleasantly surprised by the results. And if it doesn’t work, litigation will still be there as a natural next step. But remember, it does work in 70-80% of the cases, and this is not a percentage to be ignored.


Link to article - Kluwer Mediation Blog: https://mediationblog.kluwerarbitration.com/2023/06/14/mediation-vs-litigation-the-advantages-of-settling-out-of-court/

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