more interactive respectful activity www.miraconsult.at 1 European Business Mediation Mag. Hirschmugl-Fuchs Monika, CMC eingetragene Mediatorin

more interactive respectful activity www.miraconsult.at 2 Personal Approach to Business Mediation study of business economics. tourism, banking, training, management project developement business consulting -CMC business mediation – approved mediator Sustainable developement Corporate Social Responsibility

more interactive respectful activity www.miraconsult.at 3 AGENDA – European business mediation Definitions – for our common understanding Legal Background Key questions concerning obstacles Challenges Examples

more interactive respectful activity www.miraconsult.at 4 Definitions – for our common understanding Arbitration – Trial - Mediation Business Mediation - Cross Border Mediation Mediation Clause Mediation contract Agreements

more interactive respectful activity www.miraconsult.at 5 Definitions – for our common understanding Trial – Judicial resolution of disputes – One winner – one or more loser – Long lasting procedure – High costs – You cannot choose the judge – The decision is binding – Passiv role of the conflict partners – Future is determined by the judge

more interactive respectful activity www.miraconsult.at 6 Definitions – for our common understanding Arbitration – Alternative Dispute Resolution – A third party seeks to facilitate a resolution – Conflict parties may contract the arbitration court – Arbriator imposes a resoultion – Parties may make written submissions, provide evidence or present their positions at a hearing – Decision is usually binding – Further cooperation is possible

more interactive respectful activity www.miraconsult.at 7 Definitions – for our common understanding Mediation – extrajudicial – All are winners – quick – low costs – Tailored to the needs of the parties – The decision is binding (Attention) – Preserves an amicable & sustainable relationship – Parties develop the solution

more interactive respectful activity www.miraconsult.at 8 Definitions – for our common understanding Mediation in disputes – An assisted decision -making process – Takes the form of a facilitated negotiation – The mediator guides the parties through the process – Nor decision making process, nor advisory process – Facilitative process with much flexity allowing diversity

more interactive respectful activity www.miraconsult.at 9 Definitions – for our common understanding Mediation in transactional negotiations – Negotiating a long-term commitment Stating a business (EEIC, consortium) – Negotiations with multiple parties of appoint Keep on track, fair hearing, balancing forces Adequate adressing of all agenda items Civic partivipation

more interactive respectful activity www.miraconsult.at 10 Definitions – for our common understanding Business Mediation – Conflicts in companies Team conflicts Management conflicts – between two or more companies Financial conflicts Conflicts on defects, delays Cooperation conflicts – Between companies and end-consumer

more interactive respectful activity www.miraconsult.at 11 Definitions – for our common understanding Cross Border Business Mediation – Business Conflicts resulting in cross-border transactions and disputes – In 20 th century mostly arbitration procedures Effective legal framework Enforceability of arbitral awards – In 21 th century mediation becomes the new „alternative“ procedure Implemented by international commercial arbitration institutions

more interactive respectful activity www.miraconsult.at 12 Definitions – for our common understanding Mediation Clause – Included in the contracts of the parties – Obliges the parties to mediation procedure – Different sanctions in the case of noncompliance Mediation contract – Terms and conditions of the mediation Mediation agreements – Resulting from mediation process

more interactive respectful activity www.miraconsult.at 13 Definitions – for our common understanding Cross Border Business Mediation – Business Conflicts resulting in cross-border transactions and disputes – In 20 th century mostly arbitration procedures Effective legal framework Enforceability of arbitral awards – In 21 th century mediation becomes the new „alternative“ procedure Implemented by international commercial arbitration institutions

more interactive respectful activity www.miraconsult.at 14 Legal Background The European Context – Directive 2008/52/EC – European Code of Conduct – National Law before 21 May 2011 Zivilrechts-Mediations-Gesetz (Austria) additional information fyi...

more interactive respectful activity www.miraconsult.at 15 Definitions – for our common understanding Cross Border Business Mediation – Business Conflicts resulting in cross-border transactions and disputes – In 20 th century mostly arbitration procedures Effective legal framework Enforceability of arbitral awards – In 21 th century mediation becomes the new „alternative“ procedure Implemented by international commercial arbitration institutions

more interactive respectful activity www.miraconsult.at 16 3 Key questions concerning obstacles Mediation is still a bit like climate change: „Everybody talks about it, but nobody seems willing to do something with it.“ Key questions concerning obstacles – Is there an Obligation for mediation? – Will the limitation periods for initiating procedures in the court be suspended? – Will the information exchanged remain confidential?

more interactive respectful activity www.miraconsult.at 17 3 Key questions concerning obstacles Mediation is still a bit like climate change: „Everybody talks about it, but nobody seems willing to do something with it.“ Obligation for mediation – Mediation process is by definition consensual – Mediation clauses make the discussion of sanctions possible – Courts are more and more to implement mediation proceedings before claiming

more interactive respectful activity www.miraconsult.at 18 3 Key questions concerning obstacles Mediation is still a bit like climate change: „Everybody talks about it, but nobody seems willing to do something with it.“ limitation periods – In certain EU member states recourse to mediation suspend limitation periods. – Limited to mediation procedures cinducted by approved mediators – Mediation process has to comply with specific requirements – EU DIRECTIVE - running of any period is suspended from the date when parties agree to use mediation

more interactive respectful activity www.miraconsult.at 19 3 Key questions concerning obstacles Mediation is still a bit like climate change: „Everybody talks about it, but nobody seems willing to do something with it.“ Confidential infomation – Binding confidentiality obligation is a must – These informations are not for evidence in any subsequent court or arbitration – Different rules in different countries how to adress the issue (Mediation Directive)

more interactive respectful activity www.miraconsult.at 20 3 Key questions concerning obstacles Recommendations – Before starting a mediation process signing a mediation contract adressing The possibility of terminating the process The suspension of limitation periods Confidentiality obligations of the parties and the mediator – Checking whether any limitation periods apply and whether the relevant jurisdiction will recognize the mediation process – If the rights to file a claim at a later stage could be restricted initiating judicial action as a precaution – Open communication – Starting the process with an approved mediator – Written agreements are easier enforceable (if the agreement is possible under the Law of the Member State where the request is made.

more interactive respectful activity www.miraconsult.at 21 Challenges in Cross-Border Mediation Premediation in Cross Border Conflicts – All efforts taken to elaborate in a process of arranging with those who were potentially concerned Wether With whom About which conflict With what objective there ist to be a mediation – All preparation for putting the mediation in practice.

more interactive respectful activity www.miraconsult.at 22 Challenges in Cross-Border Mediation Premediation in Cross Border Conflicts – All efforts taken to elaborate in a process of arranging with those who were potentially concerned Wether With whom About which conflict With what objective there ist to be a mediation – All preparation for putting the mediation in practice.

more interactive respectful activity www.miraconsult.at 23 Challenges in Cross-Border Mediation Premediation in Cross Border Conflicts II – Unity of values and logic (parties and mediators) – Building the Co-Mediation Team – Logic of proceeding – Place for Mediation – Fees – Mediation Contract – Tools for premediation Workshop or series of private sessions to identify the Participative Diagnosis Shuttle Negotiation (Scenarios, BATNA –WATNA ( Best/Worst alternative to a negotiated agreement)

more interactive respectful activity www.miraconsult.at 24 Challenges in Cross-Border Mediation Technical Experts – Prejudice against some nations – Who will be accepted – How to use the expertise – Expert for the process – technical expert – They give the expertise, but do not set the decision

more interactive respectful activity www.miraconsult.at 25 Challenges in Cross-Border Mediation The handling of language(s) – Building a bridge between speakers of diverse languages – The role of interpreters – Consecutive interpretation (not simultanious) – Some knowledge of the language are too little – Expert language is mostly understood by the parties

more interactive respectful activity www.miraconsult.at 26 Challenges in Cross-Border Mediation Stakeholders in the CB Mediation Process – Persons or groups of persons, who will win or lose something, depending on the outcome of the conflictor of the conflict resolution Employees, clients, distributor, officials of government, personal relationsship, friends, … Who are not in any way included in the mediation will pursue their interests outside the mediation…. Intercultural Differences

more interactive respectful activity www.miraconsult.at 27 Exampels Commercial activities EU-Projects Environmental or social development projects Conflicts about ressources …….

more interactive respectful activity www.miraconsult.at 28 If there remain Questions…… miraconsult e.U. Mag. Monika Hirschmugl-Fuchs, CMC, eingetragene Mediatorin Grüne Gasse 12, A-8501 Lieboch Tel: , Fax: /