Civil & Commercial Negotiation and Mediation PDF

CIVIL & COMMERCIAL NEGOTIATION AND MEDIATION What is negotiation? Negotiation is a process in which two or more parties communicate to resolve differences, allocate resources, or reach agreements on matters of mutual interest. It’s both a skill and an art, involving strategic decision-making and int...

CIVIL & COMMERCIAL NEGOTIATION AND MEDIATION What is negotiation? Negotiation is a process in which two or more parties communicate to resolve differences, allocate resources, or reach agreements on matters of mutual interest. It’s both a skill and an art, involving strategic decision-making and interpersonal communication. Why do we negotiate? We negotiate to: Resolve conflicts or disputes. Create or claim value (e.g., dividing resources or achieving mutual gain). Build or maintain relationships. Satisfy personal, organizational, or collective goals. Address competing interests in a structured manner. Negotiation allows parties to avoid costly alternatives like litigation and enables creative, flexible solutions that benefit all sides. KEY WORDS/IDEAS: conversation; structured or not; communication; process; two parties or more. When to settle or should the question be “when not to settle?”. The question could indeed be reframed as “When not to settle?” Settlement is generally advisable when: The deal is better than each party’s BATNA (Best Alternative to a Negotiated Agreement). The cost (time, money, or reputation) of continuing the dispute outweighs potential benefits. There is a ZOPA (Zone of Possible Agreement)—a range where interests align. Conversely, don’t settle if: The agreement is worse than your BATNA. The deal is unfair or unsustainable. The relationship will be irreparably harmed by the terms. What is needed for a settlement/agreement? 1) Clear Communication: Both parties must express their interests, positions, and goals effectively. 2) Trust: A foundation of trust or at least perceived fairness is crucial. 3) BATNA Awareness: Each party must understand their own alternatives and reservation points. 4) Objective Criteria: Decisions should be guided by facts, standards, or benchmarks, not emotions or power plays. 5) Flexibility: Willingness to brainstorm and adapt to creative solutions. How to negotiate? 1) Preparation: Understand your goals, BATNA, RV, and the other party’s potential interests.  2) Building Rapport: Establish trust and a cooperative tone. 3) Information Exchange: Actively listen, share facts, and uncover interests. 4) Focus on Interests, Not Positions: Look for common ground and mutual gain. 5) Option Generation: Brainstorm creative solutions before bargaining. 6) Using Objective Criteria: Rely on standards to justify decisions. 7) Closing: Summarize agreements and ensure clarity on next steps. Role of culture in negotiation? Culture shapes how people approach negotiation, affecting: Communication Style: Direct (e.g., U.S.) vs. indirect (e.g., Japan). Decision-Making: Individualistic (e.g., Western cultures) vs. collectivistic (e.g., Asian cultures). Time Sensitivity: Punctuality vs. flexibility with deadlines. Conflict Resolution: Confrontational (e.g., Germany) vs. harmony-focused (e.g., China). Power Distance: Preference for hierarchical or egalitarian interactions. Understanding cultural differences helps negotiators adapt strategies, avoid misunderstandings, and foster successful outcomes. COMPONENTS OF EACH NEGOTIATION PARTIES – Negotiation involves at least two parties. Each party has distinct interests, goals, and priorities. The dynamics between parties (e.g., power balance, relationship) influence the approach. It includes the relationship between the parties. INTEREST – The underlying needs, desires, or motivations behind each party’s positions. Types: (1) tangible interests: Financial gains, contracts, or physical resources; (2) intangible interests: Reputation, respect, relationships, or fairness. Focusing on interests (rather than rigid positions) leads to better outcomes. BATNA (Best Alternative to a Negotiated Agreement) – the fallback option if negotiations fail. It sets a baseline for decision-making and helps define each party's Reservation Value (RV) or walk-away point. POSITIONS – the specific demands or stances parties take during negotiation. Positions often mask the underlying interests. For example, demanding a higher salary (position) might reflect a need for recognition or financial stability (interest). ZONE OF POSSIBLE AGREEMENT (ZOPA) – the range where the parties’ interests and outcomes overlap. Key to settlement: If no ZOPA exists, a deal is unlikely unless one or both parties adjust their terms or expectations. COMMUNICATION – the process of sharing information, clarifying interests, and presenting arguments or offers. Effective communication tools: Active listening; Clear, concise statements; Asking open-ended questions. RELATIONSHIP – the history, trust, and rapport between parties influence how cooperative or competitive the negotiation will be. Short-term vs. long-term: For ongoing relationships, maintaining goodwill might be prioritized over maximizing immediate gains. POWER DYNAMICS – power can derive from resources, knowledge, alternatives (BATNA), or authority. Balancing power is critical to creating fair outcomes and avoiding coercion. PROCESS – negotiations often follow a structured process, including: 1) Preparation: Research and planning. 2) Opening: Initial offers and tone-setting. 3) Information Exchange: Sharing facts and identifying interests. 4) Bargaining: Generating options and making concessions. 5) Closing and Agreement: Finalizing terms and documenting the outcome. OBJECTIVE CRITERIA – standards or benchmarks used to justify decisions (e.g., market value, legal precedents, expert opinions). Using objective criteria ensures fairness and reduces emotional conflict. CONCESSIONS – Parties often make trade-offs or concessions to reach a mutually acceptable agreement. Strategic concessions build trust and momentum toward resolution. EMOTIONS – emotions can shape the tone and progress of negotiations (e.g., frustration, empathy, or optimism). Managing emotions is critical to keeping discussions productive. TIME – timing and deadlines play a crucial role in negotiation outcomes. Imposing time constraints or leveraging urgency can influence the other party’s willingness to compromise. Leads to a RESULT In negotiations and mediation cases the decision is made by the parties, unlike in the arbitration and adjudication cases, where the decision is made by an external party. From negotiation-mediation-arbitration-adjudication the parties loose control of both the process and the result, in the order above. We negotiate about a subject and not only a result! When giving more importance to the information and methods we increase the ability to negotiate, on the other hand, if we prefer objectives and values, we will be increasing the intensity of the conflict. 3 ELEMENTS OF NEGOTIATION: Understand yourself Understand the other side Understand the process TKI MODE INSTRUMENT Thomas-Kilmann Conflict Model This instrument assesses an individual’s behaviour in conflict situations, describing a person’s behaviour along two basic dimensions: (1) assertiveness – the extent to which the individual attempts to satisfy his or her own concerns; (2) cooperativeness – the extent to which the individual attempts to satisfy the other person’s concerns STYLES OF NEGOTIATION Competition Avoidance Collaboration Accommodation COMPETING: zero-sum orientation; win lose power struggle; power oriented negotiation. When to use? Quick, decisive action needed; important but unpopular issues are at stake and where there isn’t the right way; we are at a higher position of power; when initial more collaborative approaches led to your opponents trying to take advantage of your less competitive behaviour. Competing (High Assertiveness, Low Cooperativeness): Focuses on winning and achieving one’s own goals, often at the expense of others. Effective in emergencies or when a quick decision is needed but risks damaging relationships. AVOIDING: withdraw from the situation; maintain neutrality; withhold one’s views and opinions; used for trivial issues; you have little or no power; no chance of getting what you want; potential risk of confrontation outweigh the benefits of resolution; other better places to resolve the issue; short term solutions, when you need to buy time (postponement). Avoiding (Low Assertiveness, Low Cooperativeness): Sidesteps conflicts, often postponing or ignoring issues. Useful for low-stakes situations but risks unresolved tensions. ACCOMODATING: accede to the other party, to maintain harmony. Used when the issue is much more important to the other party; to limit damage of continued conflict; good will gesture (to bank favours); when in the wrong. Accommodating (Low Assertiveness, High Cooperativeness): Prioritizes the other party’s needs over one’s own to maintain harmony or goodwill. Effective for preserving relationships but may lead to unbalanced outcomes. COOPERATING: expand range of possible options; dig deep into issues; achieve win-win outcomes. Used when both sets of concerns are too important to be compromised; needs insight from different perspectives; increases others’ commitment to solutions; long term major issues. Collaborating (High Assertiveness, High Cooperativeness): Aims for a win-win outcome by addressing both parties’ interests. Ideal for complex conflicts requiring creative solutions but can be time- intensive. COMPROMISING: minimally acceptable to all; relationship undamaged. Used for moderately important goals but not worth potential disruption of more assertive models; two equally strong parties committed to mutually exclusive goals; temporary resolution; expediency back up competing/collaborating. Compromising (Moderate Assertiveness, Moderate Cooperativeness): Strikes a middle ground where each party gives up something to reach a mutually acceptable solution. Useful for quick resolutions but may leave deeper issues unresolved. Four reasons to getting to know what are the types and what is one’s style: To understand your own natural reactions to conflict (BUT: what is natural to you is not exclusive) To improve and develop skills that you are lacking for any style To adjust the style to a particular case To recognize the style of your counterpart in order to be able to anticipate what will they do next. Which is the best? No right answer. The choice depends on: The immediacy of the problem. Your comfort level with assertiveness and cooperation for the given conflict. Priority on resolving the problem or on a long term relationship with the opposing party. Your position in power hierarchy Best use case scenario: Assertiveness → when you need faster decision making; when it is ethical and morally right to take a stance; your views are at loggerheads1 with others but you are know you are right; as a failback to amicable means of conflict management; works best when you have higher power of authority. Advantages: more powerful approach to make «your point». Faster decision making, faster resolution of conflict. 1 disputa Disadvantages: may lead to retaliation, backlash or damage to relationship; in a high power authority culture it may feed the cycle of power hoarding and authority, Cooperation → when both you and the conflicting party’s perspective may be right; when your opposing views are better than yours (swallow the pride and take a call for the greater good); you know that the conflicting party is understanding and come to terms easily with a discussion. Long term relationship management. You don't want to win small fights and lose the support of people. Works in all cases. However, depending on the opposing party, cooperative move may appear to be weak as well. Advantages: amicable means of conflict resolution; potential least amount of damage if it works. Reduces backlash and future problems. Disadvantages: may not work on people who are adamant or stubborn; may take longer to resolve. The Game of SEEK – REVEAL – HIDE. This game refers to the strategic exchange of information during negotiations: 1. Seek: Actively gather information about the other side's interests, needs, and constraints. 2. Reveal: Strategically share your own information to build trust and steer discussions. 3. Hide: Protect sensitive information (e.g., your BATNA or reservation value) to maintain leverage. IMPORTANT QUESTIONS IN NEGOTIATION: How do you usually prepare for Negotiation? (1) Understand goals and interests – clearly define your objectives and understand your priorities. Identify your interests (the “why” behind your positions). (2) Asess BATNA2 - determine your fallback options if the negotiation fails. Define your Reservation Value (minimum acceptable outcome). (3) Research the other side – gather information on their goals, interests and possible constraints. Predict their BATNA and reservation value (4) Develop a strategy – decide on your opening offer and concessions plan. Prepare for likely objections and plan responses. (5) Plant communication – choose how to frame your arguments and present your needs persuasively. (6) Anticipate challenges – identify potential areas of conflict or resistance and develop contingency plans. Lawyers: how do you decide what to ask for in Negotiation? Consider client’s objectives (goals, priorities and non negotiable terms); legal and factual strengths (merit of the situation and determine legal basis); BATNA and reservation value… What was ’the knot’ ? In negotiation, the 'knot' refers to the core issue or obstacle that prevents the parties from reaching an agreement. It may include: conflicting interests, 2 Best alternative to a negotiated agreement mismatched expectations, emotional barriers, communication gaps, cultural or value differences. What is important for your party? What happens when there is no settlement? What is your planned negotiation strategy? What would your first offer be? What the parties need/want/demand? It’s not only about money! There are many kinds of interests: TANGIBLE INTANGIBLE Money, other non monetary assets, Respect, recognition, reputation, sense of projects/work opportunities, other belonging, sense of justice, ego, opinion contractual terms, time, decision-making about yourself Why do we negotiate? POSITION INTEREST Tool Goal What the party demands VS What the party actually needs (interests tangible and intangible). What is the role as a negotiator? Its not to: Prove someone wrong Make your point Win a legal battle Prevail in an argument In a labyrinth of variables, once specified, interests will determine you actions and guide you through the entire negotiation process! What is important for your party? What happens when there is no settlement? What is your planned negotiation strategy? What would you first offer be? BATNA Best Alternative To a Negotiated Agreement It represents the best option you have if the current negotiation fails and no agreement is reached. It’s a key concept in negotiation, as it helps you determine your walk-away point and strengthens your position. Here’s how BATNA works in practice: 1. Assess Your Alternatives: Identify all the options available to you if the negotiation breaks down. 2. Evaluate the Best Alternative: Determine which of those options is most favorable. 3. Use It as Leverage: Knowing your BATNA gives you confidence and prevents you from agreeing to a deal that is worse than your alternative. This does not equal a mere court ruling. It must be taken into account a general overview of your client’s situation. How does BATNA translates into my negotiation? It relates it the concept of reservation value and walk away point. DO NOT REVEAL BATNA! Was the mutually acceptable agreement possible? The concept of ZOPA – zone of possible agreement. This zone is where the interests, demands and goals of the parties meet. When to settle? When concluding a deal is better than not concluding one! How to determine your BATNA? Cost – ask yourself how much it will cost to do this deal relative to the cost of your best alternative. Cost estimation may include both short-term and long-term considerations. Figure out which of your options is the most affordable. Feasibility – which option is the most feasible? Which one can you realistically put into action in time? Impact – which of your options will have the most immediate positive influence? Consequences – determine the outcome of each option that could be a possible solution. Stakeholders – do you need to win over any stakeholders before being able to move to your BATNA. The reservation point is the bottom line, the walk away!  NEGOTIATION Negotiation stages 1. Opening 2. Response 3. Agenda 4. Information sharing/gathering 5. Option generation (brainstorming → bargaining) 6. Close and drafting (1) OPENING – tell client’s story (facts) in compelling but non-argumentative way; involve client; highlight principles of the process (flexibility/creativity + cooperation); clarify expectations (yours and the other side); set up negotiation ground rules; define problems/key issue; determine goals. Goal? Set the tone, anchor, move the process forward. What include? Topic of discussion + scope; who are you?; who are they?; authority; issues to discuss (questions! – explore the problem, not debate issues); interests; information sharing; options? (2) RESPONSE – engage constructively with the opposing side. (3) AGENDA – open; full (includes everyone’s topics); no chronological order; item/interest based; neutral. Goal? Set the tone, anchor, move the process forward. (4) INFORMATION SHARING – missing puzzles (facts, reasons, interests and priorities of the other side); gather and sharing (no interrogation); active listening skills. Goal? Set the tone, anchor, move the process forward. Harvard school of negotiation “Getting to YES”. Hard or soft negotiation is no answer – why is there a need for a different approach? What was the approach before? What is the alternative then? What was the approach? FACTORS: CONTENT + RELATIONSHIP – people reaction? Positional bargaining – the contest of will. STRATEGY: form of trade-off between getting the content and maintaining/improving relationships. Balance between relationship and substance!!! The Harvard School of Negotiation, based on the principles outlined in the book Getting to Yes by Roger Fisher, William Ury, and Bruce Patton, introduces principled negotiation as an alternative to traditional "hard" or "soft" negotiation styles. It emphasizes problem- solving and collaboration over confrontation. Here's a breakdown of the approach: Separate the People from the Problem: Focus on the issues, not personalities. Address emotions and perceptions without letting them dominate. Maintain a good working relationship with the other party. Focus on Interests, Not Positions: Identify the underlying needs, concerns, and desires behind positions. Ask why each party wants something instead of debating what they want. Invent Options for Mutual Gain: Brainstorm creative solutions that benefit all parties. Look for trade-offs based on differing priorities (e.g., time, risk, or reputation). Insist on Using Objective Criteria: Base decisions on impartial standards like market values, legal precedents, or expert opinions. Avoid subjective or arbitrary measures. Contrast with Traditional Approaches: Soft Negotiation Hard Negotiation Principled Negotiation Focus on relationship Participants are adversaries. Focus on solving the preservation. The goal is Focus on winning at all problem collaboratively. the agreement. costs. Participant are problem Participants are friends. The goal is victory solvers. Makes concessions to Demands concessions to Finds solutions that meet maintain peace and the assert power as a condition interests of both. Goal is a relationship. of the relationship. Views wise outcome, reach Trust others. Insist on negotiation as a contest of effectively and amicably agreement will. Insist on your position. Avoids conflict or Be hard on the problem and Aims for outcomes that competition. Change your the people. Dig into your are effective and fair. position easily. Make position. Distrust others. Focus and explore offers. Make threats. interests. Benefits: Creates sustainable agreements. Maintains or improves relationships. Reduces the risk of impasses by addressing interests, not rigid positions. This approach is widely taught and used in business, law, diplomacy, and other fields. Let me know if you'd like examples or help applying these principles! Why do you think is there a need for a different approach? To escape from the dilemma when we have to chose the lesser evil. There is a need for a different approach to negotiation because traditional methods—such as hard or soft bargaining—often lead to suboptimal outcomes, strained relationships, or deadlock. Limitations of Traditional Approaches:  1. Hard Negotiation: Focuses on winning, often at the expense of the relationship. Encourages a "contest of wills," leading to conflict and potential impasses. May result in one-sided agreements that are unsustainable or unfair. 2. Soft Negotiation: Prioritizes maintaining relationships over achieving substantive goals. Often involves excessive concessions, resulting in agreements that don’t fully meet the negotiator's needs. Can lead to dissatisfaction and imbalance in the long term. What is the alternative? Harvard School of Negotiation: Separate PEOPLE from the problem Focus on INTEREST, not positions Invent OPTIONS for mutual gain Insist on using OBJECTIVE CRITERIA Be soft on the people and hard on the problem. Reach a result based on the standards independent of will. Reason and be open to reasons. Insist on using the objective criteria!! Focusing only on people → soft Focusing only on the problem → hard Focus on interest, not on positions. WHY? The interest is our goal in a negotiation, while the position is our tool. We should focus on the first rather than the latter because that’s what we aim, where we want to reach. Focusing on interests rather than positions is one of the core principles of the Harvard Negotiation approach. It shifts the conversation from rigid demands (what each party wants) to deeper exploration of why they want it. This enables negotiators to identify shared goals, creative solutions, and mutual benefits. The question "Why?" helps uncover the underlying motivations, concerns, and priorities behind a party’s position. Asking this question encourages a forward-looking, problem- solving mindset and avoids getting stuck in unproductive debates. By understanding the interest underneath the discussion, other solutions might appear in the image and become clear. PAST vs FUTURE: Past Focused: Positions often dwell on past disputes or decisions. Future Focused: Interests look ahead to goals, needs, and possibilities, enabling progress in negotiation. Invent options for mutual gain! «God bless differences» (risk, format, substance, reputation, precedent, predictions). Again, insist on using objective criteria: Market values Independent expert opinions Equal treatment  Court rulings Fair procedure Customs Precedent Moral standard Reciprocity When it’s time to split the pie, be convincing – how? By basing suggestions on OBJECTIVE CRITERIA. Ver slides 23 e ss. PPT 04.11 – example: dividing the pie which has 2 phases: (1) making requests; (2) actual division of a pie. What is the pie? What the two parties can create together vs on their own. Be convincing when the division time comes: Suggest options responding to communicated interests of the other party; Think of options as tools to satisfy interest (is ok to use whatever tools, as long as interest is satisfied); Base them on objective criteria – “simple” proportional division PROPORTIONAL DIVISION OF ADDED VALUE: Equal division of a pie does not mean everything will be divided proportionally. Proportional division of added value gives us another possible way of division of a pie. Use of objective criteria – bonus: principle of the divided cloth. INTEGRATIVE NEGOTIATION: At the start – parties are adversaries & negotiation is a competition. At the finish line: parties are partners & negotiation is a joint problem solving effort. “In sailing, you rarely if ever get to your destination by heading straight for it. In between you and your goal are strong winds and tides, reefs and shoals, not to speak of storms and squalls. To get where you want to go, you need to tack – to zigzag your way toward your destination. The same is true in the world of negotiation.” - William Ur The road is long and full of bumps and turns: our reaction, their emotion, their position, their dissatisfaction, their power. Basic negotiations checklist What to prepare beforehand Them – remember, it’s ok to have assumptions, but they need to be verified – their interests and BATNA/RV Us – My interest, it’s the priority – what I want to achieve? My reservation value – how far am I willing to compromise My offers – in order (movement of concessions): (1) what am I willing to offer/in what order? With due reasoning and justification; (2) what makes my offers fair and appealing? Questions to be asked – what information am I missing? Information to be shared and conditions to reveal them – what information I have that they don’t and when should I reveal it. ISSUES, TOPICS TO TALK ABOUT/AGENDA: information about the case/relevant facts; values/stakeholders/characteristics of entities/cultural differences; what should be the timeframe/what deadlines are we facing; team for negotiation/division of roles; strategy (including first offer) Information sharing Missing puzzles (facts, reasons, interests and priorities of the other side). Gathering and sharing (no interrogation). Active listening skills – listen to understand; non judgmental; open ended questions. WHY? – future focused: (1) Active listening skills – a paraphrase/sum up, while doing that stay alert to emotions/accusations/questions/interests/suggestions/statements…). (2) that is why now I would like to make a proposal, ask about… The ALS approach ensures: You fully understand the other party's perspective. You build trust by showing you are actively listening. You avoid miscommunication, which can derail negotiations. Didn’t get the information you needed? How to deal with it? 1. Highlight the fact that information is missing and your question has not been answer 2. Provide a rationale for why you are asking (e.g.: to optimally tailor my proposals to meet your needs as well) 3. Outline the consequences of not getting information from them, in a non threating way 4. Offer reciprocity in sharing information 5. Ask what obstacles need to be overcome for them to share information (conditions to share the information) 6. Analyse your question (do you really need the information, or are you asking it to cast blame). Last but no least – avoid the accusation that you are “questioning the other party as if in court”. At the beginnings of the session, indicate that you will ask about XYZ by signalling the topics, number and purpose of the questions. Important negotiation TIPS: The cheapest concession you can make is to listen to the other party «No» is not a answer and ‘no’ is a never full answer Don’t bargain against yourself Reciprocity is the name of the game When/Who/What/How/How much/Definitive/conditional upon sth/Under what title/authority/taxes and legal requirement/can we agree upon sth– is it up to parties Who is a party in negotiation?  We decide on what happens BUT ALSO! What happens when something goes wrong! Agreement is binding– conclusion: Oh! It is apparent, why do we need to put it in the contract– RED FLAG for a negotiator! Do not be afraid to make a concession– in negotiation either both sides say YES of there is no deal at all. The easier you make it for them to take the deal, the closer to a negotiation success you get. (fear of “losing face”) Be specific! MEDIATION Negotiation with the assistance of a neutral third party. Mediator – who? Why is there a need for an intermediary between the parties? Principles of a mediator Neutrality: the mediator has no personal interest in the outcome of the dispute. Ensures a balanced process without bias toward either party. Impartiality: the mediator does not favor any side. Perception matters; the party must view the mediator as fair and impartial The mediator is NEUTRAL and IMPARTIAL = has no interest in the outcome of the dispute and has no favourites. What matters is a subjective (parties’) perception of the mediator neutrality and impartiality. Role of mediator = depends on the adopted mediation style, but is always responsible for: structure and mediation process; supporting communication and mutual understanding; dealing with emotions; fostering the atmosphere of cooperation with parties working together to achieve mutually acceptable outcomes/settlement. Basically: Acts as a third eye to help parties gain perspective. Guides the process without imposing solutions. Ensures fairness and effective communication. Helps in generating mutually beneficial outcomes. VER SLIDE 9 PPT 09/12 Free communication about one party + their negotiation situation, goals, RV, etc.. allows mediator to see if there is a ZOPA in the mediated case. The ZOPA is in between the ranges of each party. Mediator helps the parties reach a settlement within ZOPA. PRINCIPLES Confidentiality: everything discusses during mediation remains private; this principle creates a safe space for honest dialogue. Provided for in law and by the parties. Article 7 of Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters. It’s a two layer principle: o Layer I – mediation process (law) o Layer II – internal confidentiality Confidentiality of caucuses: refers to the principle that discussions held during private sessions (caucuses) between a mediator and one party are kept strictly confidential. This ensures that information shared in these sessions is not disclosed to the other party without explicit consent. Regarding the information the mediators obtained in a private meeting. Mediator won’t share with the other side without the party’s consent. “I won’t reveal without your previous consent” vs “indicate if some information is confidential”. Voluntary nature: mediation relies on voluntary participation (Slovenia: meeting with mediator is compulsory but the participation is voluntary; Italy: certain disputes require to attempt mediation, but reaching an agreement remains optional). The voluntary nature of mediation is one of its core principles. It emphasizes that participation in mediation—and any decisions made during the process—must be based on the free will and consent of the parties involved. Participation – while mediation may be encouraged or required in some legal systems (e.g., through mandatory information sessions), the actual process and engagement must remain voluntary. Parties cannot be forced to agree or settle during mediation. Voluntary decisions – any settlement reached during mediation is crafted and agreed upon by the parties themselves, without external imposition. This ensures that outcomes are mutually acceptable and sustainable. Settlement is always voluntary! As mediator Greg Bond notes: What is truly voluntary is not just attendance but the genuine engagement and willingness to explore whether mediation can work. Mediation can be Out of court – agreement for mediation (clauses introduced in the contract!) Court annexed – court order or party’s motion BENEFITS Encourages a cooperative atmosphere. Builds trust between parties. Increases the likelihood of achieving agreements that both sides are committed to honouring. “Third eye” – a mediator’s perspetive Flexibility Enforceability of mediated agreement o Mediated agreement is binding (reflects a contractual obligation between the parties) o “” “” “” is enforceable (nature of that obligation as susceptible to enforcement by courts) MEDIATION STYLES 1. Facilitative Assisting the parties in reaching a settlement. Helping the parties communicate effectively to find their own solutions. The mediator: acts as a neutral facilitator, guiding the conversation. Encourages parties to identify their interests and generate solutions. Does not offer opinions or make decisions. Benefits: empowers parties to take ownership of the outcome. Builds stronger relationships through collaborative problem solving. Best for situations where preserving relationships is important or where the parties want full control over the outcome. 2. Evaluative Offering opinions or evaluations on the issues to guide the resolution process. The mediator: assesses the strengths and weaknesses of each party's case; suggests potential solutions or settlement options; often used in legal or technical disputes where expertise is needed. Benefits: provides a realistic assessment of the situation, which can prevent impasses; helps narrow down options for a practical resolution. It’s best for cases involving legal disputes or highly technical issues requiring expert input. 3. Transformative Transforming the relationship between the parties by improving communication and mutual understanding. Conflict as a crisis in communication. The mediator supports parties in recognizing and addressing their personal or relational dynamics. Focuses on empowering the parties and fostering mutual recognition. Resolution of the specific dispute is secondary to improving the relationship. Rules for a transformative mediator – empowerment+recognition: how? Feel comfortable in a conflict situation, even in the face of highly emotional discussions; feel comfortable even when you do not understand the substance of the dispute; respect mediation participants, even when you disagree with their decisions or behaviour; respect the parties’ choices and decisions; be patient with the parties and the process; catch and show the parties opportunities and chances that will enable them to repair the relationship, better communicate, and perhaps I resolve the dispute. Benefits: creates long term improvements in relationships; encourages personal growth and understanding. It’s best for conflicts involving ongoing relationships. The goal in a mediation is not sign an agreement. Which one is the best one? Which one is permissible? Article 183 Code of Civil Procedure Poland, regarding mediation methods. Mediators can switch between styles, however usually have preference with regard to style. The mediation process belongs to a mediator!!! Appropriate mediation style is chosen case to case (or even mediation stage) by a mediator. The best mediation style is the one that aligns with: 1. The goals of the parties (relationship repair, practical resolution, etc.). 2. The nature of the dispute (simple vs. complex, personal vs. technical). 3. The level of trust and cooperation between the parties. ALTERNATIVE TO LITIGATION Appropriate Dispute Resolution ADR refers to methods used to resolve disputes outside of traditional litigation. It is also called Appropriate Dispute Resolution as it offers flexible and tailored approaches depending on the conflict. Relevant Legal Frameworks: 1. European Convention on Human Rights (ECHR) – Article 6 (Right to a fair trial). 2. Universal Declaration of Human Rights – Article 10 (Effective remedy and fair trial). 3. Charter of Fundamental Rights of the European Union – Article 47 (Effective remedy and fair trial). These rights ensure fairness and access to justice, even in ADR mechanisms. Characteristics: Established by law Impartial Independent Fair Public Tribunal Right to court and ADR Voluntary initiation of ADR → parties decide to use ADR. Parties have the freedom to choose ADR (e.g., mediation or arbitration) as an alternative to court proceedings. Eg.: contractual arbitration clauses allow parties to agree in advance to resolve disputes through arbitration instead of litigation. Mandatory initiation of settlement-based procedures → the LAW MANDATES to use out-of-court methods. In some jurisdictions, certain disputes require parties to attempt ADR before accessing the courts. However, mandatory ADR must meet specific conditions: No Binding Decisions: The ADR process cannot impose decisions unless the parties consent.  No Substantial Delay: ADR should not cause unreasonable delays in accessing court remedies. Low or No Costs: The process must be affordable for all parties. Suspension of Limitation Periods: The time for filing legal claims should be paused during the ADR process. Accessibility: ADR must be accessible, avoiding restrictions such as solely electronic methods. The Court of Justice of the European Union ruled that mandatory ADR mechanisms are permissible if: They respect the principles of equivalence and effectiveness. They do not impede the right to effective judicial protection. They provide safeguards (e.g., affordability, no binding outcomes without consent). While ADR offers flexibility and efficiency, it must respect the principle of effective judicial protection: 1. Voluntary Waiver of Court Access: Parties can voluntarily waive their right to a court hearing (e.g., through arbitration clauses) if it’s done freely and unequivocally. 2. Restrictions: Any restriction on court access (e.g., mandatory ADR) must serve a legitimate objective (e.g., reducing court backlog) and not undermine fundamental rights. History of modern (“professional”) ADR in the western world – 1970s two landmarks about the same time What each process “sees” LITIGATION/ARBITRATION CONSENSUAL ADR 1. law 1. law 2. facts relevant from legal perspective 2. facts relevant from legal perspective  POSSIBLE REMEDIES: prescribed by the 3. facts relevant from negotiation law perspective Entirety of the case POSSIBLE REMEDIES: the sky is the limit so whatever the law allows to agree upon Choice of a dispute resolution mechanism What to ask the Parties?…. 1. What is the case about? 2. What is your dream outcome? 3. What are your goals? 4. What is their priority? 5. By when is the resolution needed? 6. How much influence you want over the resolution process? 7. What are you afraid of ? 8. How much money? 9. Are there privacy concerns? 10.Is it a one-time occurrence? ………