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BY BRADY COLLINS
Association for International Arbitration
Since the financial crisis, the instability of several EU member states has caused commercial conflicts to erupt, making companies weary of forming new, viable enterprises. European courts have been ill-equipped to handle this because of the ensuing high litigation costs and overwhelming volume of cases. To help stymie this, the EU Commission agreed to a directive in 2008 to encourage the use of mediation as a cost-effective and quicker alternative in cross-border disputes. Member states must implement the directive before this June, thus germinating the call for a new breed of European mediators. The resulting faction will permit more cooperative and long term commercial relationships across Europe, and a reevaluation of the way businesses manage conflict and deal with an adverse economic climate. Mediation—the most flexible, sensitive, and diplomatic form of alternative dispute resolution (often referred to as ADR)— provides the necessary mortar for stable European market, and will revolutionize the future of global commerce.
Essentially, a mediator is an impartial third party to a dispute and acts as a catalyst in promoting collaborative, negotiated agreement that disputants arrive to on their own. The mediator’s role is simply to help reevaluate the cause of the dispute, while allowing parties the freedom to find a mutually satisfactory solution on their own. This method of aligning incentives is often referred to as “expanding the pie,” because it allows the mediator to effectively create value instead of merely allocating it based liability. From the perspective of the disputants, the agreement to mediate expresses a desire to continue a business relationship that will meet both of their interests and promote efficiency. Merely “getting to the table” is an allegorical olive branch, and a neutral environment where one can candidly extend an arm. Studies prove this: major arbitration institutes across the glove have reported that over 60% of the mediated conflicts are resolved.
The philosophy of mediation has its historical roots in collectivist healing and social psychology. In early societies, the services of community mediators were sought for a range of disagreements, be it betweens spouses, land owners, or businesses. While today’s private mediators do not hold the same authority, many of the cooperative, adaptable aspects of mediation are favorable in modern conflicts where the future of the relationship is valued more than distributive justice. A proper third-party mediator is receptive, allowing him or her to properly untangle delicate intercultural impasses and manage politico-economic issues. This makes mediation widely applicable to cross-border disputes carrying a multitude of elements linked to global commerce.
Nowhere else in the world do issues of mobility, multiculturalism, and regional politics demand a medium for resolving international disputes than in Europe. While the field of private mediation may have its roots in the US, its development in the EU is surely to pave the future of international alternative dispute resolution. The Association for International Arbitration (AIA), a non-profit organization located in Brussels, has recognized this. Given that one of the EU’s founding ideals is openness and mobility, effectively “mobilizing” the field of mediation is crucial for a stable economy. As migrants and factors of production pass borders with stunning rapidity, so too will dispute resolution practitioners, preparedly serving the European citizenry. Having gained the support of the EU Commission, the AIA has created the first ever international mediation training that is recognized across the EU, titled “The European Mediation Training Scheme for Practitioners of Justice (EMTPJ).” The course, opening from August 2nd to August 14th at the University of Warwick, will bring legal practitioners and academics from around the world for an intensive, unparalleled course on both the practical and theoretical aspects of meditation in an intercultural context.
EMTPJ will prove to be a milestone step for the development of European economic cooperation. Nevertheless, this is only the beginning. In addition to the financial crisis and the intricacies of globalization, new green sector industries will continue to test our perception of what constitutes commercial malpractice. Cross-border mediation plays an unequivocal role in allowing competitive companies to manage conflict in untested waters without hindering important new research and investment opportunities. After all, conflict is bad business. The speed that technology affords human interaction has shown companies, financial institutions, and investors that antagonistic relations are inefficient. In this sense, the traditional societies where mediation began may be seen as a microcosm for our global community. Whereas in a courtroom the stage has already been set for opposition, allowing for mediated, cooperative justice brings the prospect of a wiser judicial sphere where out of conflict sprouts endurance, innovation, and prosperity.
[email protected] , www.emtpj.eu
