Part I of this\u00a0post summarized reports from Spain, South Africa, Bahrain, Pakistan and the Balkans.\u00a0 This second and concluding part presents reports from Argentina, the United States and Europe broadly.<\/p>\n
Sebastian C. Rodrigo <\/a>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.\u00a0 He admitted, however, that the mediation process itself is not ideal; questions of expertise arise, particularly in certain areas of practice.\u00a0 The mediators are very poorly paid, which means there is little economic incentive to excel in the practice.\u00a0 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.\u00a0 (For example, in the United States 98% of cases settle in the sense that they are not tried.\u00a0 Is it then anything to brag about that only 80% of mediated cases settle within 30 days of the mediation?)<\/p>\n Mark Appel of ICDR<\/a> presented a provocative discussion of mass claims, and their susceptibility to ADR processes.\u00a0\u00a0Mass claims\u00a0are occurances in which a single causal event — a natural disaster, an airplane crash, a release of poison, etc. —\u00a0results in\u00a0harm to a great many people.\u00a0 He discussed the consequences of Hurricane Katrina, which effected tens of thousands of homeowners and renters in Mississippi and Louisiana in 2005.\u00a0\u00a0Appel 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.\u00a0 The active intervention of the states required insurers to advise their policyholders of the opportunity for mediation of claims.\u00a0 (A challenge in itself, tracking down homeless holders of homeowner policies!)\u00a0 Insurers were required to have an authorized representative participate in these mediations, and to pay the costs of the process.\u00a0 Policyholders had a 3-day “backout” period if they regretted agreements they made at the mediation.\u00a0 Claims were “batched” and online and computerized catagorization systems were implemented.\u00a0 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.\u00a0 In Mississippi 82% of these mediations were successful.\u00a0\u00a0 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.<\/p>\n Kathy Bryan <\/a>of the CPR Institute reviewed the rise of commercial ADR in the United States and in so doing posed challenges as to whether\u00a0ADR’s success of the US in the 1980s and 1990s can be replicated in other countries in the present legal and economic environment.\u00a0 She noted certain critical developments from 20 years ago, such as the CPR Corporate Pledge <\/a>to which so many corporations responded, and the development of rigorous academic theory.\u00a0 She suggested that client demand provoked such developments as sector-specific ADR protocols (like CPR’s insurance<\/a> and franchise<\/a> initiatives).\u00a0 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.<\/p>\n The final speaker on the program, Avi Schneebalg<\/a>, practices and teaches in Belgium.\u00a0 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.\u00a0 With characteristic panache<\/a>, he derided all other institutions without this requirement, likening them to “medical schools that teach surgery but not medicine.”\u00a0 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,\u00a0with no perceptible impact.\u00a0 By contrast, in Netherlands there is no law and there is a great deal of ADR activity.\u00a0 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.\u00a0 (Avi’s e-mail address is aschneebalg@skynet.be<\/a>.\u00a0 I believe the champagne is still unclaimed.)<\/p>\n","protected":false},"excerpt":{"rendered":" The second installment of a report on a panel at the Madrid IBA Conference on developments and initiatives in commercial mediation around the world.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,36,13,24],"tags":[25,10,12],"class_list":["post-300","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-europe","category-international","category-systems-design","tag-adr-institutions","tag-conflict-management","tag-culture"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/300","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=300"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/300\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=300"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=300"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=300"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}