The document discusses various methods of conflict resolution, particularly focusing on mediation, negotiation, and hybrid clauses. It outlines the advantages and challenges of interparty conflict resolution and proposes a three-stage conflict resolution process involving negotiation, mediation, and arbitration. Additionally, it presents examples of mediation pledges and conflict resolution clauses implemented in corporate settings.

1. Drafting Mediation Pledges, Negotiation and Mediation Clauses and Hybrid Clauses Willem MEUWISSEN Attorney at Law Antwerp Bar Mediator FBC, BBMC, VOBA MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

2. Conflict Resolution : Typology Partial : Acknowledgement Remission of Debt Renouncement of Claim Interparty : Negotiation, Mediation Supraparty : Judge, Arbitrator Binding Third Party Decision Hybrid : Med-Arb, Arb-Med, Medaloa © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

3. Advantages of Interparty Conflict Resolution Keep Control over the Solution Range of Possible Solutions Creativity in Business Solutions Optimization of Possible Solutions Preservation of Business Relationships Speed, Discretion, Cost Efficiency © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

4. Inconvenience of Interparty Conflict Resolution Settlement remains uncertain ! Solution : Hybrid Conflict Resolution Combine the advantages of Interparty Conflict Resolution with those of Supraparty Conflict Resolution! © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

5. How to Implement in your Company ? 1. Unilaterally : ADR – Pledge (in Corporate Policy Statement) 2. Mutually : Three Stage – Conflict Resolution Clause (in General Conditions (?) and Contracts) © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

6. Mediation Pledge ADR - Pledge Idea : CPR (International Institute for Conflict Prevention and Resolution) Rationale : The proposal to negotiate or mediate a conflict should not be perceived as a sign of weakness © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

7. CPR – Corporate Policy Statement on Alternatives to Litigation © “ In the event of a business dispute between our company and another company which has made or will then make a similar statement, we are prepared to explore with that other party resolution of the dispute through negotiation or ADR techniques before full-scale litigation. If either party believes that the dispute is not suitable for ADR techniques or if such techniques do not produce results satisfactory to the disputants, either party may proceed with litigation.” More than 4.000 operating companies have commited to this pledge. MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

8. Other Examples : Belgium : BECI and BBMC and VOBA “Charter for Efficient Conflict Resolution” www.500.be International : International Trademark Association (INTA) www.inta.org © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

9. Three Stage Conflict Resolution Clauses Negotiation Mediation Arbitration © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

10. First Stage : Negotiation “ Any dispute arising out of this contract and which can not be resolved in the normal course of business shall be resolved through confidential negotiations between parties’ executives, thereto adequately appointed. A conflict may be notified in writing to the other party and the other party is to reply in writing within 15 days after receipt. Both notice and answer shall contain the position and the arguments of parties as well as the identity of the executive who is to negotiate. Within 30 days after delivery of the initial notice, the executives shall meet. The contents of the negotiations are confidential.” © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

11. First Stage : Negotiation Integrative Negotiation Distributive Negotiation Principled Negotiation © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

12. First Stage : Negotiation Why do Negotiations Fail ? Strategic Barrier Agent/Principal Barrier Cognitive Barrier Reactive Devaluation Robert H. MNOOKIN : Why Negotiations Fail : An Exploration of Barriers to the Resolution of Conflict (8 Ohio St. J. on Disp. Resol. 235 1992-1993) © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

13. Second Stage : Mediation “ If the conflict has not been resolved by negotiation within 45 days after delivery of the initial notice of conflict, parties shall endeavour to settle the conflict by mediation according to the mediation rules then currently in effect of (mediation institute) ” © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

14. Second Stage : Mediation Bemiddeling/Mediation Binding/not Binding Appointment of ADR Institute (Who / What / Where / When / Language) © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

15. Third Stage : Arbitration “ If the conflict has not been resolved by mediation within 45 days after the request for mediation to the mediation institute, the conflict shall be resolved by arbitration according to the rules of (arbitration institute) ” © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

16. Third Stage : Arbitration Usually 1 instance only According to the Law And also Amiable Composition Treaty of New York © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

17. Examples of Clauses Belgium : BBMC VOBA CEPINA France : CMAP Netherlands : NMI ACB United Kingdom : CEDR CIArb LCIA LMAA Germany : BMWA International : ICC CPR AAA © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

18. Hybrid Clauses Med-Arb Arb-Med Medaloa © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS ARBITRATOR = MEDIATOR

19. Hybrid Clauses : Med-Arb 1. Mediation Interest-Based ! No Private Sessions (caucus) ! (Art. 6 ECHR) 2. Arbitration / Amiable Composition If Mediation Fails Time and Cost Efficient Amiable Composition : Interest-Based ? © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

20. Hybrid Clauses : Arb-Med 1. Arbitration / Amiable Composition Case is Pleaded Award Rendered / Not Communicated ! 2. Mediation Standpoints are known (Arbitration) Analysis of Interests, Options and Solutions Private Sessions (caucus) Allowed 3. No Settlement  Award © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

21. Hybrid Clauses : Medaloa 1. Mediation 2. No Settlement : Parties’ Final Offer in Writing to Mediator 3. Arbitration : Mediator/Arbitrator chooses the final offer he finds most reasonable © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

22. Hybrid Clauses Private Sessions (caucus) Facilitating / Directive Amiable Composition Tailor Made ! © 2010 - Willem MEUWISSEN MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS

23. Thank you for your Attention MEUWISSEN & C° ATTORNEYS AT LAW AND MEDIATORS