European Business Mediation

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European Business Mediation

• Mag. Hirschmugl-Fuchs Monika, CMC
• eingetragene Mediatorin

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Personal
Approach to Business Mediation

• study of business economics.
• tourism, banking, training, management project
  developement
• business consulting -CMC
• business mediation approved mediator
• Sustainable developement
• Corporate Social Responsibility

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AGENDA European business mediation

• Definitions for our common understanding
• Legal Background
• Key questions concerning obstacles
• Challenges
• Examples

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Definitions for our common understanding

• Arbitration Trial - Mediation
• Business Mediation - Cross Border Mediation
• Mediation Clause
• Mediation contract
• Agreements

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Definitions for our common understanding

• Trial
• Judicial resolution of disputes
• One winner one or more loser
• Long lasting procedure
• High costs
• You cannot choose the judge
• The decision is binding
• Passiv role of the conflict partners
• Future is determined by the judge

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Definitions for our common understanding

• Arbitration
• Alternative Dispute Resolution
• A third party seeks to facilitate a resolution
• Conflict parties may contract the arbitration
  court
• Arbriator imposes a resoultion
• Parties may make written submissions, provide
  evidence or present their positions at a hearing
• Decision is usually binding
• Further cooperation is possible

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Definitions for our common understanding

• Mediation
• extrajudicial
• All are winners
• quick
• low costs
• Tailored to the needs of the parties
• The decision is binding (Attention)
• Preserves an amicable sustainable relationship
• Parties develop the solution

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Definitions for our common understanding

• Mediation in disputes
• An assisted decision -making process
• Takes the form of a facilitated negotiation
• The mediator guides the parties through the
  process
• Nor decision making process, nor advisory process
• Facilitative process with much flexity allowing
  diversity

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Definitions for our common understanding

• Mediation in transactional negotiations
• Negotiating a long-term commitment
• Stating a business (EEIC, consortium)
• Negotiations with multiple parties of appoint
• Keep on track,
• fair hearing,
• balancing forces
• Adequate adressing of all agenda items
• Civic partivipation

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Definitions for our common understanding

• Business Mediation
• Conflicts in companies
• Team conflicts
• Management conflicts
• between two or more companies
• Financial conflicts
• Conflicts on defects, delays
• Cooperation conflicts
• Between companies and end-consumer

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Definitions for our common understanding

• Cross Border Business Mediation
• Business Conflicts resulting in cross-border
  transactions and disputes
• In 20th century mostly arbitration procedures
• Effective legal framework
• Enforceability of arbitral awards
• In 21th century mediation becomes the new
  alternative procedure
• Implemented by international commercial
  arbitration institutions

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Definitions for our common understanding

• Mediation Clause
• Included in the contracts of the parties
• Obliges the parties to mediation procedure
• Different sanctions in the case of noncompliance
• Mediation contract
• Terms and conditions of the mediation
• Mediation agreements
• Resulting from mediation process

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Definitions for our common understanding

• Cross Border Business Mediation
• Business Conflicts resulting in cross-border
  transactions and disputes
• In 20th century mostly arbitration procedures
• Effective legal framework
• Enforceability of arbitral awards
• In 21th century mediation becomes the new
  alternative procedure
• Implemented by international commercial
  arbitration institutions

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Legal Background

• The European Context
• Directive 2008/52/EC
• European Code of Conduct
• National Law before 21 May 2011
• Zivilrechts-Mediations-Gesetz (Austria)

additional information fyi...
http//ec.europa.eu/civiljustice/adr/adr_ec_en.htm
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Definitions for our common understanding

• Cross Border Business Mediation
• Business Conflicts resulting in cross-border
  transactions and disputes
• In 20th century mostly arbitration procedures
• Effective legal framework
• Enforceability of arbitral awards
• In 21th century mediation becomes the new
  alternative procedure
• Implemented by international commercial
  arbitration institutions

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3 Key questions concerning obstacles

• Mediation is still a bit like climate change
  Everybody talks about it, but nobody seems
  willing to do something with it.
• Key questions concerning obstacles
• Is there an Obligation for mediation?
• Will the limitation periods for initiating
  procedures in the court be suspended?
• Will the information exchanged remain
  confidential?

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3 Key questions concerning obstacles

• Mediation is still a bit like climate change
  Everybody talks about it, but nobody seems
  willing to do something with it.
• Obligation for mediation
• Mediation process is by definition consensual
• Mediation clauses make the discussion of
  sanctions possible
• Courts are more and more to implement mediation
  proceedings before claiming

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3 Key questions concerning obstacles

• Mediation is still a bit like climate change
  Everybody talks about it, but nobody seems
  willing to do something with it.
• limitation periods
• In certain EU member states recourse to mediation
  suspend limitation periods.
• Limited to mediation procedures cinducted by
  approved mediators
• Mediation process has to comply with specific
  requirements
• EU DIRECTIVE - running of any period is
  suspended from the date when parties agree to use
  mediation

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3 Key questions concerning obstacles

• Mediation is still a bit like climate change
  Everybody talks about it, but nobody seems
  willing to do something with it.
• Confidential infomation
• Binding confidentiality obligation is a must
• These informations are not for evidence in any
  subsequent court or arbitration
• Different rules in different countries how to
  adress the issue (Mediation Directive)

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3 Key questions concerning obstacles

• Recommendations
• Before starting a mediation process signing a
  mediation contract adressing
• The possibility of terminating the process
• The suspension of limitation periods
• Confidentiality obligations of the parties and
  the mediator
• Checking whether any limitation periods apply and
  whether the relevant jurisdiction will recognize
  the mediation process
• If the rights to file a claim at a later stage
  could be restricted initiating judicial action as
  a precaution
• Open communication
• Starting the process with an approved mediator
• Written agreements are easier enforceable (if the
  agreement is possible under the Law of the Member
  State where the request is made.

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Challenges in Cross-Border Mediation

• Premediation in Cross Border Conflicts
• All efforts taken to elaborate in a process of
  arranging with those who were potentially
  concerned
• Wether
• With whom
• About which conflict
• With what objective there ist to be a mediation
• All preparation for putting the mediation in
  practice.

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Challenges in Cross-Border Mediation

• Premediation in Cross Border Conflicts
• All efforts taken to elaborate in a process of
  arranging with those who were potentially
  concerned
• Wether
• With whom
• About which conflict
• With what objective there ist to be a mediation
• All preparation for putting the mediation in
  practice.

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Challenges in Cross-Border Mediation

• Premediation in Cross Border Conflicts II
• Unity of values and logic (parties and mediators)
• Building the Co-Mediation Team
• Logic of proceeding
• Place for Mediation
• Fees
• Mediation Contract
• Tools for premediation
• Workshop or series of private sessions to
  identify the Participative Diagnosis
• Shuttle Negotiation (Scenarios, BATNA WATNA
  (Best/Worst alternative to a negotiated
  agreement)

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Challenges in Cross-Border Mediation

• Technical Experts
• Prejudice against some nations
• Who will be accepted
• How to use the expertise
• Expert for the process technical expert
• They give the expertise, but do not set the
  decision

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Challenges in Cross-Border Mediation

• The handling of language(s)
• Building a bridge between speakers of diverse
  languages
• The role of interpreters
• Consecutive interpretation (not simultanious)
• Some knowledge of the language are too little
• Expert language is mostly understood by the
  parties

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Challenges in Cross-Border Mediation

• Stakeholders in the CB Mediation Process
• Persons or groups of persons, who will win or
  lose something, depending on the outcome of the
  conflictor of the conflict resolution
• Employees, clients, distributor, officials of
  government, personal relationsship, friends,
• Who are not in any way included in the mediation
  will pursue their interests outside the
  mediation.
• Intercultural Differences

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Exampels

• Commercial activities
• EU-Projects
• Environmental or social development projects
• Conflicts about ressources
• .

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If there remain Questions

• miraconsult e.U.
• Mag. Monika Hirschmugl-Fuchs, CMC, eingetragene
  Mediatorin
• Grüne Gasse 12, A- 8501 Lieboch
• Tel [phone] , Fax 03136 / 62005
• Email monika.hirschmugl-fuchs_at_miraconsult.atwww
  .miraconsult.at