Investor-State Mediation Assessment and Preparation Mark E. Appel Chair IMI Investor-State Mediation Taskforce

IMI Investor-State Taskforce IMI Investor-State Mediation Taskforce Formed from a group of internationally-recognised experts to offer practical guidelines for the use of mediation and for determining competency criteria for mediators: https://imimediation.org/investor-state-mediation-taskforce IMI Investor-State Mediator Competency Criteria: https://imimediation.org/investor-state-mediation-criteria

Mediation Why and When Why Mediate? When to Mediate? Take control of problem and settlement outcome Energise negotiation process Little “downside” in the event of impasse When to Mediate? “Early and Often – during project phase; as an early dispute resolution settlement tool; concurrent with Treaty arbitration and even after arbitration Award

Conflict Management Basics Early Problem Identification Left alone, small problems become large problems Earlier identification maximizes settlement options Active Communication Internally and Externally Up and Down the Chain of Command Cross Agency Conflict Management Policy and Protocol Encourage Early Conflict Management and Dispute Resolution Create Clear Protocols for Problem Engagement Put someone in Charge

Assessing Mediation Basic Facts Summary of key facts, positions taken and claims made Note positions – both On and Off the Record Brief analysis of who has most to gain and lose Status of Dispute

Assessing Mediation Analysis Case Analysis Strategic Analysis Financial Loss Analysis SWOT Analysis (Strengths, Weaknesses, Opportunities, Threats)

Proposing Mediation Basis Points Reference Public Policy Establish and Reference Mediation Protocol Ask ADR Institution to Propose Mediation

Preparing for Mediation Mediation Logistics Mediator Selection – see IMI Criteria for Assessment Programs Qualifying Mediators to be IMI Certified: https://imimediation.org/criteria-for-qualifying-assessment- programs and IMI IS Mediation Competency Criteria www.imimediation.com Participants Pre-Mediation Information Exchange Scheduling Communications – both Internal and External

Preparing for Mediation Mediation Strategy Identify Needs and Interests (yours and theirs) Prioritize Needs and Interests Review in light of Case, Financial, Strategic and SWOT Analysis Establish Range of Outcomes if Negotiation not successful (BATNA, WATNA, PATNA) Assign Participant Roles (Re-)Establish Strategy (Beginning, Middle and End)

Assessment/Preparation IMI’s Case Assessment and Preparation Tool: Olé! Online Dispute Analysis https://imimediation.org/ole Free and downloadable!

Thank You! Mark E. Appel Chair, IMI Investor-State Mediation Taskforce Arbitrator and Mediator ArbDB Chambers 150 Fleet Street London EC4A 2DQ +44 (0)203 514 9020 Mark.Appel@arbdb.com www.arbdb.com