2. International mediation: challenges for counsel and mediators September 2006 Eileen Carroll Lawyer Deputy CEO, CEDR Karl Mackie Lawyer & Psychologist CEO, CEDR www.cedr.co.uk

3. 15 September 2006 An introduction to CEDR Staff – 40 Consultants – 60 Case referrals – over 11,000 Neutrals – over 130 Delivered ADR Workshops in over 25 different countries Consultancy work in Croatia,Pakistan, Russia, Slovakia etc Projects with EU, World Bank, NATO, UNCITRAL

4. Cultural impact – the big picture People and culture vs globalisation ('flat earth') Legal, corporate & economic systems Arbitration and litigation as alternatives Ethics and corporate governance Styles of decision-making and negotiation Language, beliefs, needs, identity

5. International/cross border challenges Getting information Getting to decision makers Presenting to right people Ideological and cultural diversity Risk of corruption Forum and timing costs

6. Recent trends in entry into mediation Multi-track approach Sophisticated lawyers Sophisticated decision makers Role of courts Contract and corporate policies OECD / World Bank / UNCITRAL

7. Why it works in international arena Structured agenda Commitment / engagement Balance of information Patience and skills of mediator Enlightened self interest Deadline injects reality

8. Case study: International infrastructure Finance agreement / New York Plant / Guatemala Warranties / Dutch suppliers Insurance / Guatemala / London Personnel / 40

9. Logistics - case study: Japanese / European Arbitration context Cultural mismatch Language Documentation Respect and honour vs commercial drivers

10. The mediation - case study: Intellectual property: USA/European Identifying the issues Pre-mediation negotiations Managing expectations Presentation impact Using the mediator Impasse Drafting and enforcement Follow-up

11. Form & flexibility – the mediation framework FORM MEDIATION FLEXIBILITY Confidentiality Independent Mediation agreement Law of the mediation Legal presentation Disciplined process structure Discipline of deadline Agreed binding outcome Dynamic balance Managed by neutral Executive participation Commercial dialogue of common sense Imaginative solutions Financial analysis Balance of risk and reward Principal to principal contact Case and business overview combined Agreed workable outcome

12. The mediation framework “There is in our work as mediators, when it is going well, a peculiarly American blend of learned structure and conventions, and improvisation strongly supported by talent and intuition. It is jazz: There are a few orthodoxies and a lot of ad hoc ensemble invention.” (Howard Bellman,US Environmental/Labour Mediator)

13. Mediation as a ‘cultural’ bridge NEGOTIATIONDISPUTEMEDIATION BRIDGE Mismatch – expectations, cultural, personality, needs Clash and/or non- communication Step back to appraise, clarify, re- assess Organisation or lawyer aspiration gap Adversarial positions Reality-test, reassess options and commercial interests Difficult conversations Proactive conversations Oil the wheels and re-engage gears/leveraged momentum

14. Mediation as a ‘cultural’ bridge – cont. NEGOTIATIONDISPUTEMEDIATION BRIDGE ImpasseLegal Action / Other Damage Form & Flexibility – binding legal result or true insight Immediate face-off, or distance Hostile distance and agency Given time, space & common platform to bridge gap

15. International Mediation – The Art of Diplomacy 2 nd Edition “…first rate… the kind of groundwork publication that is necessary to the institutionalisation of mediation and other interest-based dispute resolution into professional and business cultures.” Hans U. Stucki, Lawyer Chicago, USA

16. Centre for Effective Dispute Resolution CEDR International Dispute Resolution Centre 70 Fleet Street London EC4Y 1EU Tel: +44 (0) 20 7536 6000 Fax: +44 (0) 20 7536 6001 www.cedr.co.uk CEDR gratefully acknowledges the support of its members