Survey Shows Strong Support For Mediation Growth in Europe (ADR World)

Wed, Dec 1, 2004

By: Justin Kelly

ADR WorldA survey of top European business and legal leaders indicates strong support for more use of mediation in both international and domestic commercial disputes and more training of lawyers and managers in mediation skills and uses.

Thomas J. Stipanowich, president and CEO of the New York-based CPR Institute, said his organization's survey also indicated that the impetus for increasing mediation should come from the corporate and legal communities rather than from the courts or governments.

When asked who could best promote commercial mediation 60 percent of respondents said orporations, 25 percent said lawyers, while only 7 percent said courts, he said.

As for the single most important factor in promoting commercial mediation, 36 percent of respondents said corporate and legal community leadership, and 34 percent said "more information and education on the business benefits of commercial mediation."

Survey participants understood that "corporate counsel are in the driver's seat and if they believe mediation would serve them, then their lawyers would pay attention," Stipanowich said.

The CPR Survey on European Business Mediation was conducted at CPR's European Business Mediation Congress in late October in the Hague, Netherlands. Attendees at the conference were primarily corporate and legal counsel from some of the largest European based multi-nationals, lawyers, top judicial officials and some U.S.-based corporate counsel.

Stipanowich said the group was convened to discuss ways to promote and increase mediation use and the best ways to accomplish its greater integration into everyday business practice.

According to Stipanowich, one of the most encouraging signs was the overwhelmingly positive response from corporate counsel and business leaders that corporations should adopt formal policies on mediation in all appropriate situations, including contractual provisions.

The survey showed that 86 percent of attendees were in support of corporations adopting a formal policy on mediation use, with only 7 percent opposed.

Wider use of mediation in commercial disputes also was seen as a device to stimulate greater economic activity, with 32 percent responding that it would have a "substantial positive impact," and 58 percent saying that any impact would be positive. Only 10 percent said it would have no impact at all.

Since the United Kingdom began supporting mediation to a greater extent beginning about five years ago there has been a "sea change in mediation use," and it is beginning to increase as well on the continent as more courts institute mediation pilot programs. There are ongoing mediation pilot programs in Italy, Belgium, and the Netherlands, Stipanowich said.

When asked how important court promotion of commercial mediation would be 17 percent said it is vital, 56 percent it would be important and helpful, and 19 percent said there is little need.

As mediation use increases, there is greater need for more training of lawyers and corporate counsel in its use and application, Stipanowich said.

According to the survey, 81 percent of respondents said corporations should invest in training lawyers and managers in negotiation and mediation skills, with only 10 percent indicating little need for training. Ninety percent of respondents said law firms could distinguish themselves by investing in negotiation and mediation training.

Stipanowich said attendees indicated that training would assist lawyers with serving as counselors and advocates of mediation. It also would serve to educate lawyers about mediation uses and help companies be more active in promoting and using mediation, he added.

The biggest split in attitude about an issue among attendees was whether government should get involved in regulating mediation, Stipanowich said.

Twenty percent were opposed to any regulation of commercial mediation, 37 percent favored national regulation of mediators, and 43 percent favored uniform professional standards across Europe for commercial mediation.

However, attendees did indicate that recent European Commission activities to promote mediation could be a "motivating factor for business to explore greater mediation use," Stipanowich said.

The European Commission last month issued a policy directive to require countries to adopt policies promoting the greater use of mediation in civil and commercial disputes.

While attendees were supportive of the policy directive, they advocated that commercial ADR should be done on its own merits and not intermingled with other civil matters, Stipanowich said.

In addition, attendees indicated that as policy directives on ADR are developed it is "important to have business have a voice in the directives on ADR" and a "need to have respect for the autonomy in certain approaches" to commercial mediation, Stipanowich said.

One method of promoting mediation that does not appear in the survey but which attendees were in support of is the usefulness of corporations sharing commercial mediation success stories, Stipanowich said. Success stories serve as real world examples of how mediation can benefit business and its application to a wide variety of commercial disputes, he added.

Responses from attendees shows there is "momentum in favor of greater mediation use," he concluded.

Attendees at the congress included Lord Woolf of Barnes, Lord Chief Justice of England and Wales, Judge Pieter Kooijmans of the International Court of Justice, Judge Marcello Marinari of the Milan Court of Appeals, A. H. van Delden of the Netherlands Council for the Judiciary, and Henrik Nielsen of the European Commission.

Corporate representatives came from Johnson & Johnson, General Electric, AIG Europe, British American Tobacco, British Nuclear Fuels, Nestle S.A, Georgia-Pacific Corporation, Equitas Ltd., Siemens AG, Fiat S.p.A., ConocoPhillips, Shell International,Basic Element Company, Northrop Grumman Corp., and Marsh, Inc. Copyright 2004 ADRWorld.com, reprinted with permission. Visit www.adrworld.com for coverage of the latest developments in alternative dispute resolution.

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