Conference on Dispute Resolution In International Science And Technology Collaboration Hon. Alice D. Sullivan (Ret.)

What is Mediation “A process” not “a meeting” Definitions –Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. –Problem solving negotiation –Facilitated legal negotiation

Goals of Mediation Interest Based –Priorities - Create Value –Not position based Enlarge The Pie More Choices Than Court/Legal Determination Identify and Meet Underlying Interests –Repairing/Restoring the relationship –More business to be done? Self-Determined Resolution of Parties –Voluntary, un-coerced

Enforcement Written terms are a contract Can become an Arbitrator’s Award –Stockholm Chamber of Commerce Request to confirm the settlement agreement in an arbitral award –WIPO Rules Consent Award - Article 65 WIPO Arbitration Rules –International enforcement NY Convention on the Recognition and Enforcement of Arbitral Awards (Treaty)

Role of the Mediator Neutral / Impartial –What is neutrality in a cross-border dispute? UNCITRAL: Third country China: One from each country; joint resolution Geography: Location of the mediation Facilitator: In Charge of the Process Improve Communication Promote Voluntary Decision Making

Selecting The Mediator By The Parties By An Organization (WIPO)

Standards of Conduct Disclosure / Rules –“A relationship that might create the appearance of bias” Pre-Hearing: Ex Parte –The Shape of the Table –Who / When / Where / What Issues

Qualifications Process Expertise or Subject Matter Expertise Experience, Training, Certification, Panels, Language, Cost, Location Interpersonal Skills: Communicator –Establish trust with the Parties, between the Parties –Empathetic listener –Quick learner –Creative –Risk taker –Tenacity

Stages of Mediation Introduction –By Mediator Confidentiality All decision-makers present? Set tone –By Parties Opening statement Issues –Identify / Clarify / Analyze Interests –Identified Shared / Compatible / Conflicting

Stages of Mediation Generate alternatives –Separate inventing from evaluating –Synergy of ideas Evaluate –Establish legitimacy –What’s fair? Develop Fairness Criteria

Stages of Mediation Commitment –Realistic terms –Durable Satisfies interests Legitimate –Elegant simplicity –Written agreement –Enforceable

What Mediation Looks Like

9:00 a.m. M M = Mediator Room A

M M = Mediator Room A 11:00 a.m. Room B

M M = Mediator Room A Room B 1:00 p.m.

M M = Mediator Room A 4:00 p.m.

Finished Document 6:00 p.m.

Role of the Parties Attend With/Without Counsel Assert / Explain –Documents / Charts / Diagrams Active Listening –Listening to understand vs. Listening to respond –Walking in their moccasins Generate Options Evaluate Options Decision Makers –Prepare for a future without litigation

Role of Counsel Prepare the Client(s) –Interest / Priorities / Feelings Prepare the Mediator –Briefs / Pre-mediation Conference Generate Options and Evaluate Advise Clients Prepare Documents

Impasse UNCITRAL –Make proposals for settlement at any stage of the conciliation –AAA –Article 13(a) and (b) WIPO Mediation Rules Mediator’s Proposal –If / When Investigator - ExpertsOslo Chamber of Commerce –“The Mediator, in cooperation with the Parties, shall see to it that an Agreement is made.”

Settlement Documents Term Sheet –e.g.: License fees for how long; –Escalating payment structure Formal Agreement Fill in the Blanks

Why Mediate? Reduce uncertainty Preserve relationship Confidential –Rules e.g. Article 14 to 17 WIPO Mediation Rules –Contract –Court Cost effective Efficient