CNM_Section 8_Roles and legal rules in Mediation_Slides AH.pdf

Dr. Andreas Hacke
Section 8:
Roles and (legal) rules in mediation
1
Oxford University – BCL/MJur/MLF
Commercial Negotiation and Mediation 2016/2017
Dr. Andreas Hacke
Zwanzig Hacke Meilke & Partner
www.zhmp.de

Dr. Andreas Hacke
Overview
2
The role of the
participants in a
mediation
What is a mediator‘s role?
Which roles do the parties and
their counsel play?
(Legal) rules in
mediation
The law of mediation
The law in mediation

Dr. Andreas Hacke
The mediator‘s role
3
Party autonomy: The mediator‘s exact role is subject to the
parties‘ determination and an agreement between the
parties and the mediator
Negotiations
A mediator serves (i) as
neutral intermediary and (ii)
as process manager in the
parties‘ negotiations

Dr. Andreas Hacke
Determination of the mediator‘s role
• The mediator‘s obligations are subject to her/his concrete role
• Party autonomy: the parties define the intended role of their
mediator; parties and mediator then agree on this role
– Intensity of mediator‘s interventions:
• Facilitative
• Evaluative
– Benchmark of mediator‘s interventions
• Law?
• Interests of the parties?
• Know-how (technical, other)?
• Fairness?
• The mediator may serve the parties before the mediation
session, during the mediation session and also thereafter
4

Dr. Andreas Hacke
Mediator Orientations*
5
Facilitative
Broad
Facilitative
Narrow
Evaluative
Broad
Evaluative
Narrow
*Riskin, 1 Harv. Negot. L. Rev.
1996, 7, 25
Role of mediator
EVALUATIVE
Role of mediator
FACILITATIVE
Problem definition
BROAD
Problem definition
NARROW

Dr. Andreas Hacke
A mediative mindset
6
Clear and firm
mindset
Neutrality Curiosity Patience Fearlessness
Adequate actions /
reactions in individual
situations

Dr. Andreas Hacke
Role of the parties
• Active, self-determined work on problem solving
– Autonomy, re-delegation of conflict parties shall
negotiate and solve the issues themselves
– Constructive mindset
– Furtherance of the mediation process
• Participation
– Who attends?
• Parties
• Representatives (Authority)
• Lawyers
• Witnesses
• Experts
• Insurers
– Who attends when?
• Time scheduling of attendees
7
Negotiations

Dr. Andreas Hacke
Role of the parties‘ counsel („mediation advocacy“)
• Pre-mediation:
– Educate client wrt its legal position
– Support the client in its procedural choices („fitting the forum to the
fuss“)
– Legal design of procedure
– Information on duties and responsibilities
• In mediation:
– „Coach“ of the client
• Pursuing the client‘s interests
• Protecting the client‘s rights
• Guiding client through procedure
• Supervising the mediator‘s actions
– Design of mediation settlement
• Post-mediation
– Implementation and enforcement of mediation settlement
– Advising on follow-up procedures
8
Role
differs from that in
adversarial proceedings

Dr. Andreas Hacke
(Legal) rules in mediation
9
The law of mediation
• Legal framework in which
mediation takes place
• Rights and obligations of the
mediator
parties and their counsel with
respect to the mediation
process
• Sources
• Statutory and/or case law
• Ethical codes
• Contract law
The law in mediation
parties with respect to the subject
matter in dispute
• Legal rules applicable to the
mediation settlement

Dr. Andreas Hacke
Important (statutory) legal sources
10
• EU: The EU Mediation Directive (Directive 2008/52/EC of the European Parliament
and of the Council of 21 May 2008 on certain aspects of mediation in civil and
commercial matters)
– http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008L0052&from=en
– Enforceability / Confidentiality (only: mediator and assistants) / Limitation and
prescription periods
• UK
– The Cross-Border Mediation (EU Directive) Regulations 2011
(http://www.legislation.gov.uk/uksi/2011/1133/made)
– Civil Procedure Rules (CPR) 78.23 through 78.28 (https://www.justice.gov.uk/courts/procedure-
rules/civil/rules/part78#IDAIH1HC)
– Case law
• Germany
– Mediation Act (“Mediationsgesetz”) (http://www.gesetze-im-
internet.de/englisch_mediationsg/index.html)
• European Code of Conduct for Mediators
(http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf) (voluntarily;
self-imposed)

Dr. Andreas Hacke
Important legal obligations (1)
11
• For the mediator
– Competence / Training
– Independence and Neutrality / Impartiality
– Information of the parties on procedure
– Fairness / Equality (vs.: „de-biasing“ the parties)
– Confidentiality, see below
– Information on settlement agreement
– Other professional duties from mediator‘s own professional
background
– Liability?

Dr. Andreas Hacke
12
• For the Parties
– Confidentiality
– Temporary waiver to bring action before court
– Furtherance of the mediation process
– In UK (and recently also Germany): Cost sanctions
• e.g. for unreasonable refusal to consider ADR
– Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576) (Refusal to
contemplate ADR)
– PGF II SA v OMFS Co 1 Ltd [2014] 1 W.L.R. 1386 (no reaction at all to ADR
proposal is in itself unreasonable)
• Possible sanctions in UK:
– Deprivation of cost and/or interest recovery
– Payment of other party‘s costs and/or higher interest
– Payment of costs as indemnity

Dr. Andreas Hacke
13
• For the Lawyers
– Legal advice on the merits
– Client information / advice on ADR including cost sanctions
– Assistance in process design
– Guarding client‘s rights in the mediation
– Advising on and drafting settlement
– Advising on enforcement
– Confidentiality
– In all cases: sanctioned by potential liablity

Dr. Andreas Hacke
Confidentiality, Privilege and the Without Prejudice Rule (1)
14
• Confidentiality of information exchanged = back bone (and achilles‘ heel?)
of mediation
• Even in absence of explicit contractual agreements, confidentiality is
protected by many mediation laws and case law
• Confidentiality
– Personal obligation of specific persons to keep certain information private and
confidential; based on private law (contract, e.g. agreement to mediate)
– Scope:
• Parties and mediator vis-à-vis third parties
• Mediator vis-à-vis one party wrt information from the other party from private
sessions
– Certain exceptions, mainly for public policy reasons or for reasons of liability of
the mediator or the parties‘ counsel
– May be waived only with consent of all participants, including mediator
– Does – generally – in itself not prevent from production in court proceedings
• Farm Assist Limited (in liquidation) v The Secretary of State for the Environment,
Food and Rural Affairs (No. 2) [2009] EWHC 1102 (TCC) (“Farm Assist 2”) [21.]

Dr. Andreas Hacke
Confidentiality, Privilege and the Without Prejudice Rule (2)
15
• Without Prejudice Rule
– Communication exchanged in relation to or in a mediation in order to settle the matter
may not be produced in subsequent court proceedings
– No protection for information exchanged with other intention than settlement
– May be waived by the parties even without mediator‘s consent (Aird v Prime Meridian
Ltd; Farm Assist)
– Main Case Law
• Aird v Prime Meridian Ltd [2006] EWCA Civ 1866; [2007] C.P. Rep. 18. (mediation = “form of
assisted ‘without prejudice’ negotiation”)
• Brown v Rice [2007] EWHC 625 (Ch) (Question whether settlement was reached in mediation not
protected as WP information)
• Farm Assist Limited (in liquidation) v The Secretary of State for the Environment, Food and Rural
Affairs (No. 2) [2009] EWHC 1102 (TCC) (“Farm Assist 2”) (Application of mediator to set aside
witness summons)
• Privilege
– Legal protection of information exchanged in a legally privileged forum, e.g. „mediation
information“
– Existent for mediation in the US, not in UK or in Germany
• In sum: no „waterproof“ protection of information exchanged in mediation under
any of the concepts -> influences the strategy of parties and counsel in mediation

Dr. Andreas Hacke
Contractual Law - Mediation Agreements (1)
16
Agreement to mediate
between the parties
mediation clauses in contracts or
separate agreements
Based on: Eidenmüller,
Vertrags- und Verfahrensrecht der
Wirtschaftsmediation, 2001, p. 9
Mediator‘s agreement
between the parties and
the mediator
Most mediations are governed by private agreements within the above
mentioned legal frame

Dr. Andreas Hacke
Contractual Law – Mediation Agreements (2)
17
Mediation Clauses
(in contracts)
• Initiation of mediation
• Common: reference to
„mediation rules“ of an
institution
• Advantages
– No „sign of weakness“
– Negotiation in „peace
times“
– Security in „process
design“
Mediator‘s Agreement
• Rights and
obligations between
the parties
– Temporary waiver
to pursue claims
before court
– Procedural rules
– Confidentiality
– Time limits
– Costs
– Termination
Agreement to mediate
(incontractsorseparate)
• Rights and
obligations between
the parties and the
mediator
– Procedural rules
– Confidentiality
– Remuneration
– Liability
– Temination
Often in the same
document

Dr. Andreas Hacke
Example of a typical mediation clause
18
"In the event of any dispute arising out of or in connection with
the present contract, the parties shall first refer the dispute to
proceedings under the ICC Mediation Rules.”
Source: International Chamber of
Commerce (ICC), Paris
“If the dispute has not been settled pursuant to the said Rules
within [45] days following the filing of a Request for Mediation
or within such other period as the parties may agree in writing,
such dispute shall thereafter be finally settled under the Rules
of Arbitration of the International Chamber of Commerce by
one or more arbitrators appointed in accordance with the said
Rules of Arbitration."
…possibly followed by arbitration („multi-tier clause“)

Dr. Andreas Hacke
The law in mediation - ZOPA
• The parties‘ legal positions (or: their respective perception thereof)
define the value of their (perceived) non-agreement alternative
„lawsuit“ and thereby the (perceived) zone of possible agreement
between them
• The parties negotiate the matter „in the shadow“ of their legal positions
19
ZOPA
B
BATNA A
BATNA B
• A mediator will often work on the parties‘ perceptions of their legal
positions with a view to allow a ZOPA to emerge in the parties‘ perception

Dr. Andreas Hacke
The law in mediation – The mediation settlement
20
• Statutory mandatory rules limit the possible content and/or form of any mediation
settlement, e.g.:
– Consumer protection or labour law
– Form requirements
• Statutory default rules provide possibilities for the contractual design of the
– Oral / written?
– Incentives / sanctions for compliance
– Self-enforcing provisions (conditions; option rights etc.)
• The applicable procedural law provides for the possibilities of enforcement of the
– Early UNCITRAL initiative for an international legal instrument for the
enforcement of mediation settlements („New York Convention II“),
www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html

Dr. Andreas Hacke
Recap
21
The role of the
participants in a
mediation
The mediator serves as neutral intermediary
and process manager
The parties negotiate and decide on the
subject matter
Parties‘ counsel serve as their clients‘
„coaches“
(Legal) rules in
mediation
The law of mediation sets the legal frame for the
proceedings
The law in mediation often defines the zone of
possible agreement (ZOPA) and influences the
design of the mediation settlement and its
enforcement

Dr. Andreas Hacke
Outlook on Section 9:
Mediation process and mediator‘s techniques
22
Mediation
process How is a mediation structured?
Mediator‘s
techniques
Which techniques do mediators
use?

CNM_Section 8_Roles and legal rules in Mediation_Slides AH.pdf

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