Conflict Resolution|Europe|International|systems design

International Projects and Initiatives: Part II

Part I of this post summarized reports from Spain, South Africa, Bahrain, Pakistan and the Balkans.  This second and concluding part presents reports from Argentina, the United States and Europe broadly.

Sebastian C. Rodrigo of Argentina reported that the practice of mediation has been regulated in his country since 1996, and that parties must show that they have attempted to mediate prior to being set on the trial calendar.  He admitted, however, that the mediation process itself is not ideal; questions of expertise arise, particularly in certain areas of practice.  The mediators are very poorly paid, which means there is little economic incentive to excel in the practice.  He estimates about 40% of mediated matters are resolved — a percentage far lower than commercial mediations in the United States and the UK, and one that (in any context) is susceptible to questions of causation.  (For example, in the United States 98% of cases settle in the sense that they are not tried.  Is it then anything to brag about that only 80% of mediated cases settle within 30 days of the mediation?)

Mark Appel of ICDR presented a provocative discussion of mass claims, and their susceptibility to ADR processes.  Mass claims are occurances in which a single causal event — a natural disaster, an airplane crash, a release of poison, etc. — results in harm to a great many people.  He discussed the consequences of Hurricane Katrina, which effected tens of thousands of homeowners and renters in Mississippi and Louisiana in 2005.  Appel described how the insurance industry, the state courts, federal and state governments, the legal community and the ADR professional community all responded to devise claims resolution systems.  The active intervention of the states required insurers to advise their policyholders of the opportunity for mediation of claims.  (A challenge in itself, tracking down homeless holders of homeowner policies!)  Insurers were required to have an authorized representative participate in these mediations, and to pay the costs of the process.  Policyholders had a 3-day “backout” period if they regretted agreements they made at the mediation.  Claims were “batched” and online and computerized catagorization systems were implemented.  Conducted at a rate of as many as four mediations per day, about 12,000 mediations were held in the state of Louisiana, 74% of which were successful.  In Mississippi 82% of these mediations were successful.   The conclusion: mediation works to manage high-volume mass claims if technical sophistication, required authority, public sector intervention, high skill levels, and evaluative methods are brought to bear.

Kathy Bryan of the CPR Institute reviewed the rise of commercial ADR in the United States and in so doing posed challenges as to whether ADR’s success of the US in the 1980s and 1990s can be replicated in other countries in the present legal and economic environment.  She noted certain critical developments from 20 years ago, such as the CPR Corporate Pledge to which so many corporations responded, and the development of rigorous academic theory.  She suggested that client demand provoked such developments as sector-specific ADR protocols (like CPR’s insurance and franchise initiatives).  Among the elements needed to sustain a commercial ADR environment, she said, were enforceable agreements to mediate; enforceable agreements arising from mediated settlements; a pool of skilled, credible and trusted mediators; local centers that are respected by their users and constituents; and a robust academic contribution.

The final speaker on the program, Avi Schneebalg, practices and teaches in Belgium.  He noted that the law school at the University of Antwerp is the only one he knows that requires formal instruction in negotiation and mediation as a prerequisite to a legal degree.  With characteristic panache, he derided all other institutions without this requirement, likening them to “medical schools that teach surgery but not medicine.”  He questioned the effectiveness of laws and regulations in prompting commercial mediation, noting that such laws have existed in France, Belgium and Austria authorizing judges to direct cases to mediation and/or regulating the quality of mediators, with no perceptible impact.  By contrast, in Netherlands there is no law and there is a great deal of ADR activity.  He confessed a condundrum and generously offered a bottle of good champagne to any person who could explain to him why judges across Europe do not send litigants to mediation.  (Avi’s e-mail address is aschneebalg@skynet.be.  I believe the champagne is still unclaimed.)

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