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What ADR/mediation procedures and techniques could be used for corporate governance disputes and conflicts? Lukasz Rozdeiczer Adjunct Professor of Law,

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Presentation on theme: "What ADR/mediation procedures and techniques could be used for corporate governance disputes and conflicts? Lukasz Rozdeiczer Adjunct Professor of Law,"— Presentation transcript:

1 What ADR/mediation procedures and techniques could be used for corporate governance disputes and conflicts? Lukasz Rozdeiczer Adjunct Professor of Law, Georgetown University Law Center Paris February 12, 2007

2 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris2 MediationArbitration Dispute Resolution Continuum Negotiation Liti gation ADR Binding (rights)Non-binding (interests) & confidential Time and Resources Party control, flexibility

3 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris3 Procedures to choose from: (Negotiation) (Negotiation) Facilitation Facilitation Mediation(s) Mediation(s) Conciliation Conciliation Ombuds Ombuds Consensus building Consensus building Fact-finding Fact-finding Evaluation(s) Evaluation(s) Mini-trial Mini-trial Med-arb Med-arb Non-binding Arbitration Non-binding Arbitration (Arbitration) (Arbitration) non-binding, facilitative non-binding, facilitative binding, evaluative binding, evaluative

4 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris4 Mediation Facilitated negotiation. Facilitated negotiation. A flexible process conducted confidentially in which a neutral person assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution (CEDR). A flexible process conducted confidentially in which a neutral person assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution (CEDR).

5 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris5 Conciliation Many meanings = VERY confusing. Many meanings = VERY confusing. Don’t use it, if you don’t have to, or Don’t use it, if you don’t have to, or Make sure you define it. Make sure you define it.

6 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris6 Ombuds Organizational dispute resolution tool. The ombudsperson is appointed by a corporation or other institution to investigate complaints within the institution and either prevent disputes or facilitate their resolution. Organizational dispute resolution tool. The ombudsperson is appointed by a corporation or other institution to investigate complaints within the institution and either prevent disputes or facilitate their resolution.

7 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris7 Consensus building A facilitated conversation of many stakeholders seeking Unanimous Agreement; A facilitated conversation of many stakeholders seeking Unanimous Agreement; Involving a Good Faith Effort to meet the Interests of all Stakeholders; Involving a Good Faith Effort to meet the Interests of all Stakeholders; Settling for overwhelming majority. Settling for overwhelming majority.

8 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris8 Fact-finding A process by which facts relevant to a controversy are determined in a binding or advisory form. May take a number of forms: A process by which facts relevant to a controversy are determined in a binding or advisory form. May take a number of forms: (i) in neutral fact-finding, the parties appoint a neutral third party to give their opitnion on factual, technical, scientific or legal question; (i) in neutral fact-finding, the parties appoint a neutral third party to give their opitnion on factual, technical, scientific or legal question; (ii) in expert fact-finding, the parties privately employ neutrals to render expert opinions; and (ii) in expert fact-finding, the parties privately employ neutrals to render expert opinions; and (iii) in joint fact-finding, the parties designate representatives to work together to develop responses to factual questions. (iii) in joint fact-finding, the parties designate representatives to work together to develop responses to factual questions.

9 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris9 Mini-Trial A Mini—trial is a private, consensual process where the representatives for each party (and their attorneys) make a brief presentation of the case as if at a trial. The presentations are observed and „mendated” by a neutral advisor and by representatives (usually high—level business executives) from each side who have authority and settle the dispute. A Mini—trial is a private, consensual process where the representatives for each party (and their attorneys) make a brief presentation of the case as if at a trial. The presentations are observed and „mendated” by a neutral advisor and by representatives (usually high—level business executives) from each side who have authority and settle the dispute.

10 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris10 Med-Arb Med-Arb, or Mediation-Arbitration: An example of multi-step ADR, parties agree to mediate their dispute with the understanding that any issues not settled by mediation will be resolved by arbitration, using the same individual to act as both mediator and arbitrator. Med-Arb, or Mediation-Arbitration: An example of multi-step ADR, parties agree to mediate their dispute with the understanding that any issues not settled by mediation will be resolved by arbitration, using the same individual to act as both mediator and arbitrator. Variations: Co-Med-Arb, Arb-Med Variations: Co-Med-Arb, Arb-Med

11 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris11 Non-binding Arbitration Isn’t that the most evaluative mediation? Isn’t that the most evaluative mediation? Can a mediator do that? Can a mediator do that?

12 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris12 Procedures to choose from: (Negotiation) (Negotiation) Facilitation Facilitation Mediation(s) Mediation(s) Conciliation Conciliation Ombuds Ombuds Consensus building Consensus building Fact-finding Fact-finding Evaluation(s) Evaluation(s) Mini-trial Mini-trial Med-arb Med-arb Non-binding Arbitration Non-binding Arbitration (Arbitration) (Arbitration) non-binding, facilitative non-binding, facilitative binding, evaluative binding, evaluative

13 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris13 Assume mediation

14 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris14 Dispute resolution clause Clause or ad hoc? Clause or ad hoc? Contracts Contracts Company constitution Company constitution Board rules Board rules One process or multi-tiered. One process or multi-tiered. Negotiation/Mediation/Arbitration Negotiation/Mediation/Arbitration Choose a process or a nutral? Choose a process or a nutral?

15 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris15 What type of mediation? Facilitative/Evaluative Facilitative/Evaluative Transformative/problem solving Transformative/problem solving Court related/out of court Court related/out of court Narrow/Broad problem definition Narrow/Broad problem definition (legal, business, relational, community) Other related procedures Other related procedures

16 Feb. 12, 2007 Lukasz Rozdeiczer Global Corporate Governance Forum, Paris16 Choose techniques or a mediator? External neutral („professional” mediator and his/her style). External neutral („professional” mediator and his/her style). Internal neutral (e.g. ombuds, internal dispute resolution system). Internal neutral (e.g. ombuds, internal dispute resolution system). Peer mediator. Peer mediator. Disputants’ superior. Disputants’ superior.


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