Report from Salzburg: The 3rd CILS International Mediation Symposium

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BY GREGG BERTRAM

Every other year the Center for International Legal Studies (CILS), a non -profit entity based in Salzburg, Austria, hosts an international Mediation Symposium.  This event brings together attorneys, judges and academics from around the world to discuss all aspects of mediation, including efforts to introduce mediation to cultures unfamiliar with this ADR process.  This year’s cadre of speakers (including me) focused with new urgency upon such topics as climate change, the spread of political populism, Brexit and the attempted integration of Western ADR into Middle Eastern cultures that have so far been hesitant to accept such an intrusion.

However, ADR has proliferated in Europe since the 2017 CILS Mediation Symposium.  For example, two years ago mediation was a rarity in Germany. This year, however, Dusseldorf attorney Dr. Andreas Hacke discussed the critical importance of mediation design in complex international disputes.  His presentation was remarkably sophisticated and evoked mediation design concepts that are often seen in complex construction disputes in the U.S. Mediation design was also a focus of Zurich attorney Markus Dorig’s detailed discussion of the reasons for two failed mediations in a $50 million dollar insurance coverage dispute that will now be resolved in arbitration in Switzerland under Swiss arbitration rules .

One of the most interesting presentations was by Australia’s Linda Fitz -Alan.  She has been hired by the United Arab Emirates (UAE)to create a Western mediation process adjunct to the UAE court system.  The reason?  The UAE wishes to establish itself as an ADR center in the Middle East a la Singapore in Southeast Asia.  To do so, authorities there believe that it is necessary to create at least a partial alternative to Shariah law in order to attract a Western clientele.  However, in a culture emphasizing consensus and community-based dispute resolution, there has been resistance from UAE attorneys and community leaders to a mediation process created and conducted by foreigners.

Other themes at the conference featured the emerging power of women attorneys and ADR practitioners in the Middle East, including Israel.  Beirut attorney Claudia Calouri provided inspired discussions of the challenges faced by them to promote and practice ADR in a historically male, religiously controlled legal system.   Lebanon has many of the same cultural barriers to Western ADR as exist in the UAE.

In addition, Seattle attorney Don Mullins addressed the history of attempts to regulate and/or certify mediators in the U.S.  Mediator certification has been a common feature of mediation in Europe and remains a controversial issue here in the U.S.  So too is the issue of mediation protocol.  Much time at this year’s symposium was devoted to the tired subject of whether joint sessions were necessary at the commencement of mediation. This particular debate is well into its third decade with no sign of vanishing.  At this year’s conference, those most insistent upon joint sessions were generally the least experienced practitioners.

In many European countries, mediation is structured and regulated by government.  Austria is one of several states where this is true.  The extent of governmental regulation and, especially mediator accreditation, remains to be seen as these efforts are fairly new.  By contrast, in the U.S. the private marketplace has for years been the primary determinant of whether mediators are able to develop full time ADR careers.

As the world continues to contract, these international ADR events are very useful learning experiences. The next CILS International Mediation Symposium is scheduled for June 2021.

Gregg Bertram is president of Pacific ADR Consulting, a Seattle-based panel of mediators and arbitrators serving the Pacific Northwest. He gave a presentation on commercial mediation practices in the US at the international symposium in June.

 


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