Conflict Resolution|Mediation

Should Mediators Be Expert in the Field of the Dispute?

This final post from the Madrid IBA Conference concerns a panel of corporate users who were asked whether subject-matter competence was an important factor in selection of a mediator.

Matthew Rushton, of UK’s Mediator Magazine, presented the results of a survey inquiring whether corporate users preferred a mediator who was knowledgable in their industry.  The respondents came from 20 different countries.  One result was a concern that “expert” mediators might be too narrow of focus, too easy to draw conclusions and opinions, and taking unwarranted and unwelcome dominance in the mediation in the hope to demonstrating their own expertise.  By contrast, with a “non-expert” mediator, too much time might be wasted bringing the neutral up to speed, and the non-expert might be too easily led to a “wrong” factual conclusion.  The survey concluded that, while utter ignorance seldom added value, users preferred a mediator who could quickly grasp the facts of a matter and proceed to solicit authoritative and informed solutions.  Users expressed few regrets whether or not they selected an “expert” mediator.

Wolf von Kumberg, European Legal Director for Northrop Grumman, noted that his is an engineering company, and disputes tend to arise from technical or IT projects.  Yet he does not seek out mediators with engineering or IT backgrounds.  Rather, he looks for a bundle of mediation-related skill sets and past experience in complex multiparty disputes.  Rarely, a dispute will arise based on an interpretation of specifications in a contract, and in such a case an engineering background may be helpful.  But by far the most salient attribute for a successful mediation, he said, was the trust that the parties placed in the mediator.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.”

On the other hand, Godofredo Mendes Vianna of Brazil deals largely withcargo: airlines and shipowners — who are going through some very bad times right now.  The culture of maritime practice, in his opinion, is an essential attribute for the understanding and resolution of these disputes, and he has used industry experts for years.  It is important to him that he employ good negotiators with high mediation skills, but who know the practices and the expectations of the maritime industry intimately.

Andrew Sellers is Head of UK and European Technology for HISCOX in London, and does not expect that attorneys would know computer code or international specs.  He does, however, expect them to understand their clients’ problems and to be responsive to their needs for commercial solutions, and he reported severe dissatisfaction on this score.  He strongly prefers “generalist” mediators, who can humanize engineering problems and conduct sessions in a manner to solicit human solutions to them.  In his area of work, professional relationships are immensely important and he puts a high premium on problems not rupturing an otherwise beneficial relationship with another business on which his company relies.  All deals should be mediated, he added, because all commercial problems should be commercially resolved.  If only the bar understood that, he concluded.

The final speaker was the affable Jean Claude Najar, General Counsel France for General Electric Comany.  GE has been in the worldwide forefront of commercial ADR for ten years and it came as no surprise for Jean Claude to remind us that GE makes many, many products — from electric turbines to light bulbs to jet engines to insurance policies — and that it puts mediation clauses into as many contracts as it can.  Does he use experts as mediators?  In construction perhaps; perhaps in disputes arising from sophisticated financial products.  “Otherwise what I’m looking for is a decent human being.”

Amen!!  (And for a toungue-in-cheek take on Jean Claude’s main criterion, click here.)

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