Result Mediation trains mediators in the Democratic Republic of Georgia

Mediationtraining in Georgia

Beginning of June 2018 our trainers Felix Merks and Elsbeth Snieders trained Georgian professionals and politicians in mediation and negotiation. The Core mediation  training was organised in cooperation with the EECMD, the Eastern European Centre for Multiparty Democracy and their Dutch counterpart, the NIMD, Netherlands Institute for Multiparty Democracy. 12 enthousiastic trainees spent 5 days of intensive training with the trainers of Result Mediation.

Giving Back

This training was a part of our “giving back program”, where Result and her trainers trains one person in a post-conflict area for every participant in one of our regular mediation trainings.

Please visit the website of the EECMD here. This is what they wrote about the training:

Core Mediation Training

On June 11-15 2018, the Eastern European Centre for Multiparty Democracy (EECMD) has organized the Core Mediation Training in Georgia.

Training was commissioned by the Netherlands Institute for Multiparty Democracy (NIMD). Alumni of the Democracy Schools as well as other interested individuals were able to participate in the training.

Training was led by two highly qualified and experienced trainers from Dutch organization “Result Mediation”. Trainers have delivered professional training on the ways of understanding conflict dynamics and equipped participants with skills to align differing interests and to bring parties together through mediation.

First half of the five-day long training was devoted to the theoretical aspect of the subject. Theoretical part of the training addressed the issues such as conducting negotiations, defining the interest and communication models. Furthermore, the training also touched upon the ways of dealing with difficult situations during negotiations and conducting mediation. In the second part of the training, participants themselves became mediators and stakeholders.  Multiple cases were role played and all the different phases of the mediation process were discussed.

“Training was really important for me. I have learned how to detect behavior and listen to the parties. Most importantly, I am inspired to learn the subject more thoroughly and contribute to the development of mediation practices in Georgia”, – remarked Tamar Mikeladze, one of the participants of the training.

According to Nino Jintcharadze, the knowledge acquired during the training will be useful for her to solve personal, work-related and other types of conflict situations. She remains hopeful that mediation will become as popular in Georgia as it is in the Western countries. This would provide win-win solutions to various disputes without the need of taking the case to the court. Participants expressed the wish of conducting mediation training systematically for the representatives of various spheres, especially for the politicians.

The Core Mediation Training is officially certified by the Mediator Federation of the Netherlands and has been conducted in many countries since 1998.

Feedback of the participants:

The Core Mediation Training ignited my interest already when I saw the call for the training. I believe a training course in Core mediation should be widely introduced to other groups of society. Especially, important I believe it to be for the future politicians since it seems to be one of the most constructive ways of settling the disputes with a win-win outcome. As for me, I have immediately started applying the new skills to my everyday work routine and it literally makes miracles; I have also made up my mind to start developing a concept of a “peer mediator” to be introduced to the schools and university of Telavi.  I feel so lucky to have had the opportunity to enjoy every minute of this impeccably and impressively delivered training course in Core Mediation.- Tiniko Khanjaliashvili

***

First of all, I have to give due credit to the trainers. Trainers were undoubtedly the professionals in the field with experience of engaging with various target groups and audience. Their readiness to answer the questions and receive feedback on various activities was indeed very efficient. It was evident that the trainers followed closely to our role play, underlined the positive side of the role play and gave objective feedback for the purposes of improving the performance. Shared sense of the group to operate in a working environment during the training contributed to the understanding of the issues from different angles. Logistical side of the training was exemplary which in itself contributed to the successful implementation of the training.

Personally for me the training was very important. During the training, I saw myself as a communicator and listener. I learned to get familiar with my own behavior. Being mediator, and ‘neutral person’, during the conflict situations was interesting and unusual experience for me. All of this is going to be very helpful to me. Most importantly, this training inspired me to learn the art of mediation more thoroughly and hence contribute to the development of mediation practice in Georgia. – Tamar Mikeladze

***

Mediation training, which took place in Kvareli during June, 11-15th, was very impressive. Both content and learning methods of the training have exceeded all expectations.

First of all, I would like to mention a high degree of trainers’ preparation, which was evident from the outset of the training. Because of their teaching skills, I was fully paying attention to the training and have been actively engaged in the process. I particularly liked the practical side of the training which included various exercises as well as theoretical aspect which equipped us with relevant knowledge in the field of mediation.

By completing the mediation training course, I am confident that the knowledge that I have received during the training will be useful for me in order to solve personal, work-related and other types of conflicts. I remain hopeful that mediation will become as popular in Georgia as it is in the Western countries. This would provide win-win solutions to various disputes without the need of taking the case to the court.

I would like to thank the Eastern European Centre for Multiparty Democracy (EECMD) for organizing the training. This organization contributes markedly to the debates and issues that are vital for the further personal and professional development. – Nino Jintcharadze

Report on ADR by Dutch Research and Documentation centre

Report on ADR by Dutch Research and Documentation centre

Recently the Dutch research and Documentation Centre published a report on ADR in the Dutch justice system.

The main research question in this report is if the core values of the rule of law are sufficiently upheld in current forms of out-of-court or ‘alternative’ dispute resolution (ADR), and which benchmarks or indicators may be identified to determine whether these guarantees need to be strengthened. These last
decades, ADR has become an important part of the Dutch justice system. Arbitration, the oldest form of
ADR, has long been a part of corporate dispute resolution. Both other types of ADR – mediation and
binding third party ruling – have emerged more recently, pressing the need for this very research.
The question how the core values of the rule of law are guaranteed for those who make use of these non – governmental forms of ADR is asked more often and more urgently. At the same time, it is clear that the strength of these alternatives is that they are less formalistic and therefore faster and offer better possibilities to tailor the procedure to a specific case. One must however fear that providing for more ‘rule of law safeguards’ will lead to formalisation and will reduce the effectiveness of ADR. Hence, there is an obvious tension between the classic rule of law safeguards incorporated in the (public) judicial system, and the effectiveness and efficiency of the (private) alternatives. Finding an appropriate balance
between these interests is the focus of this research.
The first step of this research consists of identifying and setting out the framework of rule of law  safeguards and how these are relevant in the specific context of ADR, by conducting a literary and case
law research. The outcome of this research has subsequently been presented to and discussed in expert
meetings and focus groups, both consisting of experts from the ADR-field and academics, in order to
validate the results and further explore the issues that had come up during these meetings. At the same time the current field of ADR in the Netherlands – arbitration, binding third party ruling, and mediation – has been described with a specific focus on the rule of law safeguards that had previously been identified. With regard to binding third party ruling and mediation, three case studies have been conducted to get a more detailed picture of the safeguards these variants of ADR currently offer: A case
study into Kifid (the Dutch Financial Services Complaint Tribunal), divorce mediation, and ADR in disputes with the government.
The results of the research show that in general, the rule of law seems sufficiently safeguarded in
alternative dispute resolution. The relevant safeguards are often enshrined in the law (which is especially
the case in arbitration), regulations, rules of procedure or are guaranteed otherwise. In the most important institutional variants of ADR – such as Kifid or so-called ‘disputes committees’ for consumer
cases – government interference already occurs. Therefore, it appears that there is at present no need to
provide for additional safeguards. As was said, further formalisation and legalisation could be at the expense of the desirable qualities and advantages of ADR, and should thus be done reservedly. For the
future however, it is important to monitor the developments. The various forms of ADR are simply too divers to precisely indicate when government interferenced does become opportune. The researchers therefore developed a framework that takes this diversity into account and provides a sufficient basis for assessing the necessity and the type of interference.
For this purpose, two paradigms are placed on opposite sides of a sliding scale. On one side, the paradigm of the safeguards, that is incorporated in the judicial system which can be characterized as highly formal. On the one hand this has led to a reliable system and subsequent confidence in the system. On the other hand, it has led to a rather inert system that is known to be relatively slow, costly, and does not leave much room for a tailor-made approach to cases. The second paradigm concerns autonomy and self-determination. It revolves around the freedom of choice and self-determination of parties’ own interpretation on how to solve their conflict. It is not self-evident that this should involve some sort of government interference or regulation. Similar to parties’ freedom of contract, which entails that in principle the contracting parties determine the contents of the agreement themselves, parties may also shape the solution to or resolution of their conflicts.
Both paradigms can be viewed as ‘ideals’ on either side of a scale on which the various forms of ADR
could be placed. The research shows indicators with which the paradigm that is applicable to these various types of ADR could be determined. The perspective of the ADR consumer and the legitimate expectations on constitutional safeguards he reasonably may have, are essential. These expectations are more justified if one (or more) of the following situations occur: When more government interference occurs and the government stimulates ADR; when the actual freedom of choice regarding the use of ADR is smaller; when the provider of ADR provider can be considered to be more professional and/if the role of the ADR provider is to resolve the conflict, as opposed to a role of a more procedural nature. These criteria could be used as indicators for government regulation or control, after which could be discussed how such regulation or control could be shaped or formalised.
The report describes four options, two of which already exist in the current system: self-regulation and
supervision of the ‘products’ of ADR (for example arbitral awards or settlement agreements) by the judiciary. The two other possibilities are of a more theoretical nature: administrative supervision by the central government or by specific decentralised authorities. Though far-reaching and not (yet) necessary, they do occur in specific sectors of the legal domain, such as the notarial and legal profession, and are thus mentioned in this research.

Ideas4Culture merges with Result mediation

Ideas4Culture merges with Result mediation

It is with pleasure that, as per January 1st, 2018, Result Mediation has taken over the activities of Ideas4Culture B.V. from Juanita Wijnands.

After a long and fruitful cooperation together, we are proud to incorporate the intercultural management consultancy and training expertise of Ideas4Culture into our organization. This not only strengthens our expertise and competency supporting organizations on issues of (inter)cultural cooperation and conflict here in the Netherlands, it also deepens and strengthens our knowledge and expertise in cross-border conflict situations. An area in which Result Mediation is rapidly gaining international recognition.

Complexity

Result Mediation is the largest mediation organization in The Netherlands, specialized in supporting organizations to find their own solutions to cooperation, and conflict management issues as well as developing the necessary intercultural competencies and skills required to communicate and act effectively in complex intercultural contexts.

Juanita Wijnands will stay actively involved in Ideas4Culture, as coach, facilitator and trainer.

We thank Juanita for her commitment and trust in our organization.

You can contact us through Ideas4culture.com, which will continue to be our internet address. Our (new) telephone land-line number is +31 (20) 205 02 39.

Workshop: De-Escalating Strong Emotions in Negotiation, Diplomacy and Conflicts

Workshop: De-Escalating Strong Emotions in Negotiation, Diplomacy and Conflicts

As part of the Mediators Beyond Borders International Conference 2017, Douglas E Noll shares his knowledge and expertise with you in this day-long workshop. We at Result Mediation would not want you to miss this opportunity to learn from one if the most distinguished lawyers and mediators of the USA.

What?

Doug Noll’s de-escalation trainings are the culmination of years of research and experience in the Prison of Peace project. He has taught this state of the art technique for over 7 years in some of California’s most violent men’s and women’s prisons with remarkable results. This time, a day-long de-escalation training workshop will teach the participants how to de-escalate strong emotions in mediation, solve problems and create accountable agreements in their practices of negotiation, diplomacy and conflict resolution.

To whom?

The workshop is developed for specialists in law and diplomacy. Diplomats, lawyers and judges often have to negotiate and problem-solve in tense, escalated situations. All of them would benefit enormously from learning this skill from the Master himself. The workshop will be also promote to military higher-ranking officers.

Why?

Traditional forms of negotiation and communication have been shown to be less effective than desirable. In this workshop, the participants will gain new insights into how a human processes information in conflict and will also master innovative new skills. They will learn how to de-escalate a volatile situation and move the discussion into effective problem-solving and durable agreements. We also consider this a unique opportunity given that it is the first time Doug Noll is coming to the Netherlands to give this workshop.

How?

The day will be divided in two following sessions: Micro-Interventions in Mediation, devoted to exploration of the concepts of emotional invalidation, reflective listening, core messaging and affect labelling; and Guiding Decision-Making in Mediation, that will focus on teaching and developing skills in recognising and working with decisional errors commonly made by parties in high conflict, understanding the systems of decision making, malware, ignorance and information gaps, strategies and techniques for guiding counsel and parties leading to better decisions. Both sessions will be highly interactive.

When and where?
October 4, 2017
9:00 am – 4:30 pm

Peace Palace, Carnegieplein 2,The Hague,2517 KJ,Netherlands

To register and/or to have more information about the workshop and Doug Noll please go to the following link: https://mbbinternational.org/events/workshop-de-escalating-strong-emotions-in-negotiation-diplomacy-and-conflicts/

How to prepare for mediation: a checklist

This article was written for Jams International by Matthew Rushdon.

How to prepare for mediation: a checklist

Clients have a right to expect a high level of technical expertise from their lawyers. Beyond this, what distinguishes the excellent from the merely acceptable in mediation advocacy is often the quality of prior preparation.

One salutary tale is that of the mediator who, while practising as a solicitor, acted for one of the world’s leading professional gamblers. The gambler concerned made a living taking on all-comers at Blackjack. She became involved in a rights dispute and sought advice on her prospects of succeeding in a legal claim. The solicitor gave his standard line: “You’ve got a 70 per cent chance of succeeding with the claim, your costs will be X if you win and X if you lose.” “Is that it?” she asked. “What kind of a risk assessment is that? I need to know about my opponent – what advice are they getting? What’s their personality? Are they gamblers? Will they see this thing through to the end? How do they cope with stress? Will they break under cross-examination? Is their house on the line?” In short, she wanted a full risk assessment of all the relevant circumstances. Litigation was not a gamble she was about to undertake lightly.

The message is: the better informed you are of all the circumstances that might potentially affect the outcome, the better able you are to take advantageous decisions.

How to prepare for mediation: risk assessment

Mediators all agree that realistic and comprehensive risk assessment is critical in preparing for mediation. Mediators might force parties to complete a decision-tree analysis, getting each side to attach a percentage value to their prospects of success in each phase of the dispute. Opinion is divided as to whether decision-tree analyses produce mathematically sound results. “They are,” concedes one mediator, “pseudo-science, but it’s better to have them than not have them.” Others will resort to them only when desperate.

Part of what this process achieves is the breaking down of partisan perceptions. Research shows that it is natural to view one’s own side as “more talented, honest and morally upright”, while simultaneously vilifying the opposition. The result is that exaggerated perceptions of the other side’s position leads to overestimates of the substantive conflict.

Risk assessment and reality testing help counter this tendency; being aware that either side’s arguments are coloured merely by the roles adopted in a conflict situation helps broaden one’s perspective.

At a minimum, therefore, lawyers should consider, and have in writing answers to the following:

  • The sum claimed.
  • A list of unquantifiable elements: injunction, accounting, rectification, declaration.
  • The sum counterclaimed (if applicable).
  • A list of unquantifiable elements of the counterclaim: injunction, accounting, rectification, declaration.
  • A comprehensive list of each aspect of the claim and percentage prospect of success.
  • The percentage prospect of the main claim succeeding, and the sum payable or receivable.
  • The percentage prospect of a significant part of the claim succeeding, and the sum payable or receivable.
  • The percentage prospect of the counterclaim succeeding, and the sum payable or receivable.
  • The percentage prospect of a significant part of the counterclaim succeeding, and the sum payable or receivable.

Cost

  • Are you fully indemnified for your own costs to trial?
  • Are you fully indemnified for your opponent’s costs to trial?
  • If you settle before trial will your opponent’s costs be indemnified?
  • If not, estimate your opponent’s costs to date of settlement.
  • What are your total costs and expenses to date?
  • What are your estimated legal costs to the end of a trial, including witness expenses, expert costs, counsel’s costs and all other items.
  • If you succeed, how much of your costs are you likely to recover?
  • If you succeed, how much of your costs will not be recoverable?
  • If you do not succeed, how much of your opponent’s costs are you likely to pay?
  • If it goes to trial, estimate the time taken by management, staff and others in preparing, seeing lawyers and attending court? Put a value on this.
  • Estimate the resulting loss of business/income.
  • If you succeed at trial, what interest, if any, are you likely to receive?
  • If you do not succeed at trial, what interest, if any, are you likely to pay?
  • If either side appeal the judgment, estimate what extra costs you might incur.

Time

  • What is the date of the trial? Estimate the length of the trial?
  • If either side appeals, estimate the further time involved.
  • Is there any prospect that your opponent will not have the resources to meet a judgment, immediately or at all? If so, estimate the time, prospects and costs of enforcing a judgment.

Other factors

  • If the other side has made a Part 36 offer, what are your percentage chances of beating that offer?
  • If you have made a Part 36 offer, what are the other side’s chances of beating that offer?
  • How damaging would an adverse decision at trial be for your business? Put a value on that.
  • How damaging would an adverse decision at trial be for your opponent’s business? Put a value on that.
  • Might there be any indirect benefits from a settlement, like restoring or preventing further damage to goodwill, or trading opportunities?

Source: https://www.jamsinternational.com/blog/how-to-prepare-for-mediation-a-checklist

ADR challenges for general counsel

This article was written for Jams International by Philip McMullan.

ADR challenges for general counsel

The legal system and legal profession are, by their very nature, conservative. There are good reasons for this. Certainty is key for businesses, to ensure that they operate within the law and that their investments are made with the full facts about potential liabilities. A legal system which changed the rules frequently would make it impossible to do business. And clients are unlikely to be impressed by a lawyer who wants to innovate with a new approach when there are millions of pounds in dispute. Stick to what works, what’s tried and tested, to achieve a predictable outcome, is the conventional wisdom.

These facts were brought home to me when I recently discussed ADR with the general counsel (GC) of a large FMCG business and two litigation partners based in London. All are UK-qualified lawyers.

The case against ADR

“Why don’t GCs push for more ADR when disputes arise with long-standing business partners?” I asked the group. The litigators immediately opined that any party who requests mediation immediately looks weak to the other side, potentially damaging their long-term interests.

The GC added that when signing a large deal the last thing anyone is thinking about is the dispute resolution clause. And what’s more, the transactional lawyers working on a deal don’t have any experience drafting structured dispute resolution clauses. So, while the parties can agree to mediate, there won’t necessarily be an agreed step-by-step process which keeps the dispute from going to court unless absolutely necessary.

Furthermore, they all agreed that there is often personal animus from aggrieved executives fuelling the dispute. When senior stakeholders are pushing for an aggressive strategy – the corporate equivalent of the day in court – it makes it difficult to suggest mediation.

I found it interesting that these senior lawyers could all see the inherent upsides of ADR – privacy, potential cost savings, risk management – yet, for a variety of reasons (both structural and cultural), were more likely to pursue litigation as a means of resolving disputes.

Why general counsels might consider ADR

The fact that senior lawyers know that ADR might present a better way to resolve disputes was noted across the Atlantic in a 2015 article by former Delaware Supreme Court Chief Justice, Norman Veasey, and former Chancellor of the Delaware Court of Chancery, Grover C. Brown.  The piece, published in US publication “The Business Lawyer”, looked at “the hard choices that face a general counsel when weighing the pros and cons of whether and when a particular complex business dispute is better suited for litigation in the public courtroom or through a carefully constructed alternative dispute resolution process, including mediation and/or arbitration”.

The distinguished authors also carried out extensive interviews with 19 GCs or their principal in-house colleagues –  from companies including Walt Disney, Oracle, Walgreens, Proctor & Gamble and General Dynamics.

The conclusions drawn by Veasey and Brown reflected what I had found in my discussions in the UK:

  • A preference for mediation is almost universal.
  • Mediation provokes commercially rational thinking and decision making.
  • International arbitration is strongly preferred to litigation in foreign jurisdictions.
  • International arbitration has features that domestic arbitration does not, including restrictions on pre-hearing information exchange and proven experts in both the arbitral process and the subject matter of the dispute.
  • Confidentiality is highly valued.
  • Not all transactional lawyers perceive that they have the ability to negotiate arbitration structures that safeguard against the flaws they fear in the process.
  • Dispute resolution provisions are too often addressed too late in the deal negotiations, either by attorneys who know the deal but are insufficiently familiar with dispute resolution processes, or (ironically) by attorneys familiar with ADR but insufficiently knowledgeable of the deal at hand.

It is probable that the US is ahead of the UK in take up of ADR by senior in-house lawyers. But it is clear that both jurisdictions face challenges in convincing all stakeholders to buy in to robust and structured dispute resolution processes allowing for ADR – despite the fact that they might rationally see the upside. It is up to the ADR community to continue to educate the market about the benefits of adopting a structured approach to dispute resolution and the importance of thinking about it before disputes arise. The legal market may be conservative but that does not mean it is incapable of change.

Source: https://www.jamsinternational.com/blog