Various Topics Raised in Global Mediation Forum

The 15th meeting of the UIA World Forum of Mediation Centers was held March 11-12 in Athens.  About 130 people attended, many of them Greek attorneys, by far the largest assembly in this group’s history.

The meeting took place about a month after the enactment in Greece of a mediation law consistent with the provisions of the European Directive, making it timely for the many Greek lawyers who attended. 

Here are brief reports on some of the panels at the Forum:

Mediation of Labor Disputes:  Linda Forese of Dresser Italia in Florence, Ioannis Nerantzis, and Giorgio Grasso of Gelex in Rome gave a presentation on mediation of labor disputes in a highly unionized environment.  They reported that companies are seeking strategies to avoid lockouts, boycotts, strikes and individual sabotage.  The thrust of the presentation was that, in union settings, services of mediation and reconciliation are valuable (and in some cases such as public employment in several European states obligatory); and, in individual contexts, it is useful to provide for a for employee complaints and inquiries. 

One interesting point in Ms. Forese’s presentation was reference to an Ombudsman in individual employee complaints; until recently, the concept of an organizational Ombudsman was unfamiliar outside the United States.

Change Management:  Aleksandra Weber of Munich and Jane Gunn of Reading offered a presentation on “change management.” Ms. Gunn described the experience of assisting a company’s implementation of a new IT capability over four countries, effecting 10,000 employees.  The process of identifying and acknowledging stakeholders and managing the process in the face of institutional inertia was clearly presented.  The critical roles of consultation, absorption and flexibility were emphasized, as well as the critical difference between dealing with expressed conflict arising from change, and managing change within the organization so as to avoid conflicts arising.  The main principles were inclusion of broad coalitions of stakeholders with an eye to ensuring that they have been heard, and being willing to alter process and, where prudent, outcomes as legitimate concerns may dictate.

Proactive Workplace Mediation:  This panel comprised Marko Irsic of Slovenia and Haris Meidanis of Greece.  Mr. Irsic explained transformative mediation in a workplace setting and spoke to the benefits of “proactive mediation” in improving the workplace and the company’s productivity.  The key is mediation processes that seek to increase mutual understanding and a change in the parties’ views of each other to more healthy and productive bases.  Mr. Meidanis emphasized the benefits of acting upon a situation in order to cause change, rather than reacting to something that has happened in order to “chase” change.  In practice, it supports the reformation of business relationships prior to the point when those relationships begin seriously to deteriorate.

From Mystery to Mastery:  Jane Gunn and Spryos Antonelos discussed what attributes are shared by exceptional mediators.  They suggested three “stages” of mediator development:  First mastering and observing the established and familiar skills; second being aware of what one is doing and why, able to select among skills for particular purposes; and third exploiting one’s own personal abilities to play strengths, follow instincts, and distinguish a particular and singular method of practice from other practitioners.  The end goal, she said, is one of interpreting what is going on in a room and responding appropriately and effectively.

Coaching:  Colin Wall of Hong Kong gave an overview of this topic, which addressed the use of mediator skills in other contexts.  Francois Bogacz introduced Alex Yarolavsy from New York, discussing conflict coaching.  This involved advising clients to form a strategy to overcome a present conflict.  This involves determining the client’s objective in the conflict and assist in generating possible outcomes that satisfy these objectives.  The coach works with only one party and assists that party’s development of negotiating strategies to further that party’s interests.  According to Yarolavsy, it requires a functional knowledge to communicate effectively on the client’s issues; empathy to that party; and analytical skills to piece together the causes and opportunities of the conflict at issues. 

Johanna Kalowski remotely reported on the experience of serving as a standing negotiator/mediator within a bank with respect to diversity conflicts among employees.  Part of the job was to increase the skill levels of managers, allowing them to perceive issues in ways other than clear disputes.  The manager then would become a type of mediator.  This she found herself coaching middle managers on how to enter into these concerns and problems despite their usual reticence towards conflicts. 

Konstantine Katsigiannis addressed diversity management within organizations.  Different elements share a common denominator, and their various views of a shared problem may result in conflict.  A coach is used to enter into this environment, smooth out tensions, and allow best-functioning teams to arise. 

Mediation and Insolvency:  Stefano Pavelic gave an overview of the topic of mediation in a crisis environment, specifically the financial collapse of 2008 and its impact on commercial dealings.  He opined that these disputes are more challenging than most.  It calls for quick skills in distinguishing between positions and interests, especially in negotiations, creation of options, and use of reality testing. 

 Catherine Cotsaki suggested that creditor/debtor conflicts (including household bankruptcy) in Greece lend themselves to resolution by mediation.  Peter Phillips cast doubt on that proposition in a more narrow context based on outcomes of voluntary foreclosure mediations in New Jersey.  Nicole Baladis explained the details of pre-bankruptcy procedures under Greek law.  Mark Appel reported on AAA’s participation in mandatory mortgage foreclosure mediation in Florida and suggested that the foreclosure process is susceptible to abuses (i.e., robo-signers), but that mediation can impose order and process upon a chaotic situation.  However, he reported no better statistical outcomes for Florida than Mr. Phillips had in New Jersey. 

Thierry Garby of Paris noted that, upon threat of default it is the creditor, not the debtor, who has the problem.[1]  He related conciliation and renegotiation processes in the early 1990s when the Paris real estate market collapsed.  Jean-Pierre Sala?n addressed the credit mediation scheme commenced in France in 2008, which features online applications by the debtors, mediator sessions with the borrower to clarify options, and meetings with both parties to determine acceptable alternatives to default/foreclosure of commercial loans.  He reported that 24,000 applications have been received representing €5.3 billion in value.  63% of the sessions conducted have closed with an agreement, and (most importantly) tens of thousands of threatened jobs have been saved.

Cultural Differences and Mediation in China:  Wang Cheng Jie and Cheng Hui gave an impressive presentation on Chinese approaches to mediation.  Wang first noted the flexibility and party autonomy and control that characterize mediation.  Cultural differences among the parties can therefore influence the process itself.  These differences may include language, knowledge, life views, values and customs.  By way of example, Wang said that Western attitudes are positive and direct, accepting conflict as a fact of life.  By contrast, Eastern cultures seek to avoid conflict, prefer harmony, and avoid disputes as abhorrent and abnormal.  That being the case, a Western and Eastern person may choose mediation for different reasons and with different expectations, leading to risk of obstacles in communication and inconsistencies in bargaining behavior. 

Wang continued with his list of differences:  Western expectations are interest-dominated, defending rights.  Eastern expectations are relationship-dominated, seeking a long-term relationship or other long-term interests because, as the saying goes, “Harmony brings wealth.”  These different orientations may lead to misunderstandings and even a lack of trust. 

Put otherwise, Western mediation is “face-to-face” with a joint meeting and personal exchanges of views.  Eastern mediation is “back-to-back” and relies on caucuses and the explanation of interests to the mediator, not to the counterparty.  An appreciation of this difference counsels attention to the process at the outset.  Other differences are seen in choosing mediators.  Western practice is a neutral person who will facilitate the communication.  Eastern preference is for a mediator who is a trusted acquaintance, who will involve himself in the judgment and make wise suggestions for closure.  This, too, suggests that the role and duties of the mediator be jointly understood before the process begins.

Western thinking is linear and chronological, dividing a task into smaller units.  Eastern thinking is comprehensive and will embrace the entire issue without internal priority-making.  Thus, Westerners may consider agreement on selected issues but Eastern negotiators envision one final binding agreement defining the relationship of the parties.  All of these concerns highlight the importance of coordination and attention to the process in cross-cultural mediations.

Colin Wall of Hing Kong pointed out that there are many cultural variations in the ethnically rich and very large country of China.  He also noted that Asian cultures differ: Japanese parties need no overt judgment from the mediator; a hint will usually be enough.  He said that mediation at the Beijing Arbitration Center will be conducted like American mediation, since that staff has been trained by Tom Stipanowich of Pepperdine.  His point was that there is no end to cultural sensitivity, and that slow and patient mediation processes, meandering and gathering information, is the only key to serving the particular disputants at hand.



[1] Garby told the story of Moise, who could not sleep because he owed his neighbor David money the next morning but could not pay.  Annoyed by her husband’s tossing and turning, Moise’s wife went next door to David’s house, roused him from sleep, and said “My husband Moise cannot pay you the money he owes you tomorrow.”  She then returned to bed and said to her husband, “Go to sleep.  Now it’s his problem.”


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