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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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 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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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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