NEW INTERNATIONAL PRACTICE COLUMN: Citing the EU Mediation Directive, a Brussels Group Develops Training (April 19).
April 19, 2010
By BRADY COLLINS
The author is events coordinator and internal manager of the Association for International Arbitration, a nonprofit group of individual arbitrators and mediators in Brussels.
Since the financial crisis, the instability of several European Union member states has caused commercial conflicts to erupt, making companies weary of forming new, viable enterprises.
Europe’s courts have been ill-equipped to handle this because of the ensuing high litigation costs and overwhelming volume of cases. To help stymie this, the EU Commission agreed to a directive in 2008 to encourage the use of mediation as a cost-effective and quicker alternative in cross-border disputes.
Member states must implement the directive before June, which already has sparked a call for a new breed of European mediators. The resulting faction will permit more cooperative and long term commercial relationships across Europe, and a reevaluation of the way businesses manage conflict and deal with an adverse economic climate. Mediation--the most flexible, sensitive, and diplomatic form of alternative dispute resolution--provides the necessary mortar for stable European market, and will revolutionize the future of global commerce.
A mediator is an impartial third party to a dispute who acts as a catalyst in promoting collaborative, negotiated agreement that disputants arrive to on their own. The mediator's role simply is to help reevaluate the dispute’s cause, while allowing parties the freedom to find a mutually satisfactory solution. This method of aligning incentives by “expanding the pie,” allows the mediator to create value instead of merely allocating it based on liability.
From the disputants’ perspective, the agreement to mediate expresses a desire to continue a business relationship that will meet both sets of interests and promote efficiency. Merely “getting to the table” is an allegorical olive branch, and a neutral environment where one can candidly extend an arm. Studies by major arbitration institutes have reported that more than 60% of mediated conflicts are resolved.
The philosophy of mediation has its historical roots in collectivist healing and social psychology. In early societies, the services of community mediators were sought for a range of disagreements, be it between spouses, land owners, or businesses.
While today's private mediators do not hold the same authority, many of the cooperative, adaptable aspects of mediation are favorable in modern conflicts, where the future of the relationship is valued more than distributive justice. A proper third-party mediator is receptive, allowing him or her to properly untangle delicate intercultural impasses and manage politico-economic issues. This makes mediation widely applicable to cross-border disputes carrying a multitude of elements linked to global commerce.
Nowhere else in the world do issues of mobility, multiculturalism, and regional politics demand a medium for resolving international disputes than in Europe. In order to increase the number of international mediations that take place in accordance with the EU directive, the Association for International Arbitration, a Brussels-based nonprofit, has created a mediation training course that educates students how to mediate under the auspices of the directive.
The “European Mediation Training Scheme for Practitioners of Justice,” or EMTPJ, has been supported by the EU Commission. As more legal practitioners are trained in the necessary rules and regulations, ADR institutions may expand their mediation centers pursuant to the directive by granting EMTPJ-trained mediators accreditation.
For countries outside the EU--especially those vying for admission into a strong culture of international mediation–proficiency in the area is a means of learning the difficulties and necessities, and dealing with the issues inherent, in European integration and economic cooperation.
So while the field of private mediation may have U.S. roots, its EU development is sure to pave the future of international alternative dispute resolution.
In addition to mediation theory, the EMTPJ course will cover issue areas such as EU Ethics on Mediation; Theory and Practice of Contract Law in Europe, and International Mediation. The practical section requires a more active role by participants, as they are coached on their people skills, process skills, and management skills.
The goal, with a variety of subjects and lecturers from different legal backgrounds, has been to create a training scheme that is both multifaceted and pedagogically sound. While students will subject themselves to a rigorous curriculum, the 14 days of classes have been arranged to build upon one another. Upon completion, attendees brains will have been rewired to see conflict as opportunity and national borders as obstacles to overcome.
While migrants and factors of production pass the EU's borders with stunning rapidity, so too will dispute resolution practitioners, preparedly serving the European citizenry.
The course will be held from Aug. 2 to Aug. 14 at the University of Warwick, in Coventry, U.K.
As important as the directive and preparation for its installation is for the conflict resolution community and, now, the entire EU, nevertheless, this is only the beginning. In addition to the financial crisis and the intricacies of globalization, new green sector industries will continue to test our perception of what constitutes commercial malpractice.
Cross-border mediation plays an unequivocal role in allowing competitive companies to manage conflict in untested waters without hindering important new research and investment opportunities. After all, conflict is bad business. The speed that technology affords human interaction has shown companies, financial institutions, and investors that antagonistic relations are inefficient.
In this sense, the traditional societies where mediation began may be seen as a microcosm for our global community. While in a courtroom the stage has already been set for opposition, allowing for mediated, cooperative justice brings the prospect of a wiser judicial sphere–and from conflict can sprout endurance, innovation, and prosperity.
For more information and contacts, please visit www.emtpj.eu.
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The CPR Institute has done extensive work on the EU directive, via ad hoc efforts and with the CPR European Advisory Committee. For full details, including CPR's comments on the directive itself, go here.