1. Success fees Structuring mediation fees
Prague 2013
Patrick Van Leynseele – Brussels
Roberta Regazzoni – Milan
Zbysek Kordac – Prague
Robert Cholenský - Brno 1

2. Introduction of the topic
Basic principles:
Independence
Neutrality (as to outcome and nature of solution)
If any, it is the parties’ solution and decision : influenced by multiple factors inherent to interests and needs of the parties.
Not be governed exclusively by legal rules

3. Consequence: no personal financial interest in the outcome, e. g
Consequence: no personal financial interest in the outcome, e.g. no higher fee in case of success /contingency fee.
Many codes of ethics contain that rule.
Many legislations: mediator’s fees + calculation to be spelled out in the mediation agreement
Many existing rules of ethics allow only hourly fees or flat fees by half-day or by the day; Prohibit higher fees in case of success
E.g.: Czech Mediation Act 202/2012, sections 3(4) and 5(2)(d); Belgian code of civil procedure, art. 1731§2,6°

4. Should we lobby to change the ban?
Issue:
Prohibition
Too Broad?
Contrat: la convention d’arbitrage est l’accord par lequel deux ou plusieurs personnes physiques ou morales conviennent de soumettre les différends déjà nés ou à naître découlant d’une relation juridique déterminée, à un ou plusieurs arbitres (G. Keutgen et G.-A. Dal, L’arbitrage en droit belge et international, t. 1, n° 42)
Autonomie: 2 aspects
la clause compromissoire est un contrat juridiquement distinct de la convention de fond: le sort du contrat principal n’est pas lié à celui de la clause d’arbitrage. Conséquences: possibilité de les soumettre à des lois différentes ET en cas de résolution du C. principal, la clause compromissoire demeure valable (1697, 2 CJ). Idem si le C. Principal n’a pu entrer en vigueur. Mais quid en cas d’inexistence du contrat principal?
 l’arbitre a le pouvoir d’examiner sa propre compétence
Should we lobby to change the ban?

5. After all, this is what parties appointed him for!
Fundamental rule: mediator not to be influenced by fact that he would get that higher pay in case of success
On its face: could be the case if success fee provided: affects his neutrality
Practice shows parties do not necessarily object to contingency fees or success fees
Parties may find mediator’s fees too low in comparison to the value they attribute to the mediator’s intervention
Parties expect the mediator to truly go out of his way as mediator; use all his talents to try to reach settlement
If successful, willing to reward mediator more than if he tries - even hard - but to no avail
After all, this is what parties appointed him for!
Oralité des débats = la règle mais dérogation écrite possible
Huis-clos = la règle

6. Questions remain – issues to be kept in mind
Should contingency fees, or way to calculate them, always be determined beforehand, in mediation agreement? Can/should it be done later, e.g. when and if agreement has been reached?
What is "success"? Is existence of settlement enough? Should success be measured by a factor that constituted an element of the dispute (possibly viewed differently by each party)?
Should some types of “success fees”, or ways to calculate them, be prohibited altogether?
Who is to determine amount/level of success fees if not spelled out entirely in the mediation agreement?
Who pays/shares the success fees? Success fee paid by one party only? (risk to be considered as “greasing money” or sign of infringement on mediator’s neutrality?

7. Guiding Principles
Mediator may not be biased by the outcome of his intervention
Not for mediator but for the parties to determine the acceptability, the nature and the “level” of the solution
Conditions of the mediator’s intervention must be clear, transparent and agreed with from the start
Ban on “plaintiff’s lawyer-like” contingency fees

8. Existing rules - Evolution
Traditional rule:
- Ban on success fees (e.g version of AAA-ABA- SPIDR Model Standards): success fees discouraged in commentaries: (fees must be reasonable and information provided at the outset)
- Most Mediation rules and rules of ethics of mediation Institutes

9. CPR Model Rule of Professional Conduct for Mediators, 2002
Ban removed and double ethical duty :
Rule “Fairness and Integrity of the Process
(i) Duty to assess possible conflicts arising out of use of fee arrangements, and whether appearance or actuality of partiality prohibits its use under the Rules’ principle of impartiality
(ii) Mediator required to disclose to parties possible consequences of the fee arrangements proposed.

10. Amended AAA-ABA-SPIDR Model Standards 2005
Standard VIII (A) and (B) "Fees and other charges“:
Same principles of mediator’s duties integrated: (i) duty to provide complete information and (ii) duty not to provide for fees in a manner impairing the mediator’s impartiality.
Interesting: Reporter’s Notes to new Model Standard only states the following reasons for amending the former prohibition : antitrust concerns raised by flat prohibition on certain fee arrangements (includes ban on success fees) and concerns raised by the practice of unequal sharing of the mediator's fees among the parties.

11. EUROPEAN CODE OF CONDUCT FOR MEDIATORS
Limited to duty for the mediators to always provide complete information as to the mode of remuneration they intend to apply.
Rules 1.3: “Where not already provided, mediators must always supply the parties with complete information as to the mode of remuneration which they intend to apply. They must not agree to act in a mediation before the principles of their remuneration have been accepted by all parties concerned.”
I.e.: no prohibition of fees linked to outcome of mediation process. Contract freedom prevails.

12. Some Mediation Institutions
E.g.:
International Maritime Conciliation and Mediation Panel:
“success fee” equal to 100% of the total fee sum
due in the event of a settlement of the dispute
whether or not such settlement is honored by the parties

13. Success Fees Structuring Mediation Fees
UIA World Forum of Mediation Centres – Prague, June

14. In Italy «free lance» mediation is almost unknown.
It is mostly provided by entities enrolled in a Ministry of Justice special list (mediation providers).
This is the the way the Italian legislator decided the mediation should be offered in order to benefit of a number of advantages (- Interruption of the period of limitation; - suspension of the status of repose; - immediate enforceability of agreement; - proceedings concerning the mediation are tax-free, the mediation fees give rise to tax credits).
The parties who reach an agreement pay the mediation provider an increase up to 25% of the mediation fee (set forth by the mediation law).

15. The recent regulation of mediation in Italy states a minimum and a maximum mediation fee the provider can charge depending on the economic value of the dispute.
Law envisages an increase up to 25% of the mediation fee in case of success of the mediation (=agreement).
It does not specify how the increase should be allocated.

16. Mediation Fees (VAT included)– Milan Chamber of Arbitration
Value of dispute
Mediation costs
Success increase (25%)
Up to € 1.000
48,40
+19,66
from € 1.001,00 to € 5.000,00
104,87
+39,33
from € 5.001,00 to € ,00
193,60
+72,60
from € ,00 to € ,00
290,40
+108,90
from € ,00 to € ,00
484,000
+181,50
from € ,00 to € ,00
806,67
+302,50
from € ,00 to € ,00
1.210,00
+605,00
from € ,00 to € ,00
2.299,00
+1.149,50
from € ,00 to € ,00
3.146,00
+1.573,00
over € ,00
5.566,00
+2.783,00

17. The Mediation Service of Milan adopted a mixed reward system:
up to a certain amount of disputed economic value, the fee for a mediator consists of a lump-sum
over that amount, there’s a fixed fee + an hourly fee up to a maximum.
The success fee as stated forth by the law goes to the centre but the centre does not pay the mediator more in case an agreement is reached.
– what we actually noticed is that quite often parties who reach an agreement do not formalize it during the meeting in order not to pay the success fee -

18. DIRECTIVE 2013/.../EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on alternative dispute resolution for consumer disputes and amending Regulation (EC) o 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)
Art. 6, lett. d) (Expertise, independence and impartiality): «Member States shall ensure that the natural persons in charge of ADR possess the necessary expertise and are independent and impartial. This shall be guaranteed by ensuring that such persons: (…) are remunerated in a way that is not linked to the outcome of the procedure”

19. Thank you Sottotitolo Roberta Regazzoni Roberta.regazzoni@mi.camcom.it
Mediation service
Milan Chamber of Arbitration
Milan Chamber of Commerce

20. Success Fees for Mediators?
NO, THANK YOU

21. Why not? Succes fees will compromise mediator‘s neutrality
Succes fees have generally no tradition in Europe
Success fees may prevent mediator using some of the techniques
Succes fees will make it less likely that parties settle (mess with BATNA-WATNA)

22. Thank you for your attention.

23. Route to Satisfied Clients and Rewarding Mediation Practice
Mediator Success Fees
Route to Satisfied Clients and Rewarding Mediation Practice
UIA World Forum of Mediation Centres
from June 06 to 08, 2013, Prague, Czech Republic
Robert Cholensky
cholensky.cz

24. Success Fee Pros Success fee promotes mediation in good faith
Success fee has no effect on the mediator impartiality
Success fee promotes mediators key functions in assisting the parties
Success fee helps the parties to get a mediator that shares their goal to settle
cholensky.cz

25. Success Fee Pros continued
Success fee allows for fair and transparent compensation of the mediator
The longer it takes the better it pays vs. The better it helps the better it pays
Success fee promotes party autonomy
Success fees are under the control of lawyers
cholensky.cz

26. Thank you for your attention!
Robert Cholensky
cholensky.cz

27. What does the audience think? - Debate
Prague 2013 27

28. What do the members of the panel really think?
Prague 2013 28

29. Proposed Principles
Parties must agree on success or contingency fees from the outset – Agreement and transparency
Mediators’ fees are due under the mediation agreement. Parties should determine whether they agree to a scheme of remuneration that depends upon a successful outcome (freedom of contract)
Any other rule would conflict with statutory provisions (fee arrangements must be established at the outset) 
At very least: mediation agreement should contain the range and limits of the success fee and the way it ought to be calculated.

30. Proposed Principles
2. Mediator must ensure that parties are aware of and understand the possible implications of success fees : duty to assess and discuss with parties possible consequences of such fee arrangements, including the appearance or actual loss of independence or neutrality Parties must be guided by mediator in becoming aware of the issues raised by the fee structure proposed : full transparency on the issue. Parties must be put in a position in which they are able to give quality, explicit and informed consent to the fee structure. Mediator’s candid comments on the fee structure enhance his credibility as a neutral and independent third party. His credibility will be undermined if, during the mediation process, there is an appearance of bias that the parties may feel is influenced by the fee structure if they were not fully informed beforehand.

31. Proposed Principles
3. (i) PROHIBITED: “Percentage of settlement”: mediator’s fee determined by percentage of settlement amount. It creates an interest for the mediator to push for the highest amount possible. Only appropriate for plaintiff’s lawyer; not for a neutral mediator. (ii) ALLOWED: Pure “success fee”: Mediator’s fee = higher percentage, increased hourly fee or fixed amount, contingent only on parties reaching a settlement, whatever its nature or contours. (iii) ALLOWED: “Percentage of costs saved”: additional fee = percentage of the estimated cost savings as compared to judicial process. (iv) ALLOWED: “Percentage of value created”: mediator’s additional fee = percentage of “additional value” created through the mediation process, i.e. value of the “increased pie”.

32. Proposed Principles 3.
Models (ii) – (iv) may create bias (or appearance of bias)
towards settlement (mediator no longer fully neutral as to whether the dispute reaches settlement or not)
or in the conduct of the process (mediator is no longer fully neutral as to the type of settlement reached).
However, does not undermine the mediator’s core function: remaining neutral and independent towards each party.
Mediator’s own interest is aligned with that of the parties, which is to join forces and work together in order to reach a settlement

33. Proposed Principles 3.
Models (iii) and (iv): it may be difficult to define “costs saved” or “value created” at the outset (details of the disputes and of parties’ situation not known to the mediator yet)
Sufficient to define principle in mediation agreement (statutory requirement)
Leave it to parties and mediator to define during or at the end of the mediation process, the amounts to which the agreed percentage must be applied
That leaves a margin of uncertainty but provides flexibility, which the parties and the mediator ought to be able to discuss when the mediation process has yielded a settlement
In other words: mediation agreement may be limited to providing a framework for the calculation of the success fee, and the parties and the mediator should be allowed to determine its precise amount together once the dispute among the parties has been settled
Mediation institutes to define limits of reasonableness (increased percentages or amounts)

34. Proposed Action for UIA
Change UIA Code of Conduct:
Art. 4: Delete prohibition in principle
Make footnote 5 (with limues and four conditions) the rule by putting it in as new Art. 4

35. Success fees Structuring mediation fees
Prague 2013
Many thanks for your attention
Patrick Van Leynseele – Brussels
Roberta Regazzoni – Milan
Zbysek Kordac – Prague
Robert Cholenský - Brno 35