This final post from the Madrid IBA Conference concerns a panel of\u00a0corporate users\u00a0who were\u00a0asked whether subject-matter competence was an important factor in selection of a mediator.<\/p>\n
Matthew Rushton, of UK’s Mediator Magazine<\/a>, presented the results of a survey<\/a>\u00a0inquiring\u00a0whether corporate users\u00a0preferred a mediator who was knowledgable in their industry.\u00a0 The respondents came from 20 different countries.\u00a0 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.\u00a0 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\u00a0a “wrong” factual conclusion.\u00a0 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.\u00a0 Users expressed few regrets whether or not they selected an\u00a0“expert”\u00a0mediator.<\/p>\n Wolf von Kumberg, European Legal Director for Northrop Grumman<\/a>, noted that his is an engineering company, and disputes tend to arise from technical or IT projects.\u00a0 Yet he does not seek out mediators with engineering or IT backgrounds.\u00a0 Rather, he looks for a bundle of mediation-related skill sets and past experience in complex multiparty disputes.\u00a0 Rarely, a dispute will arise based on an interpretation of specifications in a contract, and in such a\u00a0case an engineering background\u00a0may be\u00a0helpful.\u00a0 But by far the most salient attribute for a successful mediation, he said, was the trust that the parties placed in the mediator.<\/p>\n Patrick Deane of Nestl\u00e9<\/a> is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers\u00a0and consumers in every part of the globe.\u00a0 His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.\u00a0 He noted that commercial disputes — even financial ones — are seldom dry, but\u00a0instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.\u00a0\u00a0The 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.\u00a0 “A lack of industry expertise has never caused a failure of the mediation process.”<\/p>\n On the other hand, Godofredo Mendes Vianna <\/a>of Brazil deals largely withcargo: airlines and shipowners — who are going through some very bad times right now.\u00a0 The culture of maritime practice, in his opinion, is an essential attribute for the understanding and resolution\u00a0of these disputes, and he has used industry experts for years.\u00a0 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.<\/p>\n Andrew Sellers is Head of UK and European Technology for HISCOX <\/a>in London, and does not expect that attorneys would\u00a0know computer code or international specs.\u00a0 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.\u00a0 He strongly prefers “generalist” mediators, who can humanize\u00a0engineering problems and conduct sessions in a manner to solicit human solutions to them.\u00a0 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.\u00a0 All deals should be mediated, he added, because all commercial problems should be commercially resolved.\u00a0 If only the bar understood that, he concluded.<\/p>\n The final speaker was the affable Jean Claude Najar,\u00a0General Counsel France for General Electric Comany.\u00a0 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 <\/a>— from electric\u00a0turbines to light bulbs to jet engines to insurance policies — and that it puts mediation clauses into as many contracts as it can.\u00a0 Does he use experts as mediators?\u00a0 In construction perhaps; perhaps in disputes arising from sophisticated financial products.\u00a0 “Otherwise what I’m looking for is a decent human being.”<\/p>\n