Institutional, multiparty and international disputes – is inter-disciplinary team mediation appropriate?

November 2015 | EXPERT BRIEFING | LITIGATION & DISPUTE RESOLUTION

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Mediation is not simple; it can be a daunting process. A cross-border project finance workout (including a project sponsor, a syndicate of international commercial banks, and multilateral financial institutions) presents significantly different concerns and issues than an intellectual property infringement litigation involving an early stage venture company and a Silicon Valley software firm. Expected are a myriad of differing corporate, business and financial concerns, and a substantial matrix of contractual and other documentation. Added are conflicting corporate cultures, ethnic and linguistic challenges and industry-specific norms and guidelines.

These cases inherently involve institutional, multiparty and, at times, international disputes and considerations. They require bespoke process protocols appropriate to the unique circumstances of each case. Having the combined professional and personal fit, and experience of working together, an interdisciplinary team of mediators can be extremely helpful in managing the process, more thoroughly understanding the cognitive nuances and structural foundation of the parties’ individual positions and arguments, and developing a comprehensive variety of possible settlement consideration.

In her excellent and seminal article, ‘Interdisciplinary Team Mediation’, Lois Gold finds that an interdisciplinary team adds value, realises process efficiency, and provides clients with a greater array of possible collaborative settlement options. She demonstrates, in the context of divorce mediation, the utility of utilising two mediators from different disciplines – a lawyer and a therapist. While each brings a different professional focus, life experience and perspective, together they can create operating synergies necessary to efficiently and effectively handle the particularised nature and complex issues of these types of cases.

Ms Gold suggests that the interdisciplinary model offers “(t)he symmetry that four people (two mediators and two parties) provide, then, can minimize triangling (sic), help maintain impartiality, equalize bargaining power, and defined the labor. One facilitator can more actively confrontational or supportive because the other can respond on the other side of the issue, reducing potential for clients to perceive the mediation process as biased. One mediator can take one (party’s) side without “being” on that person’s side. Effectiveness of a confrontation can also be enhanced when both mediators come down on the same side of the behavior position being challenged. It is more difficult to dismiss confrontation by two people. Greater risk can be taken with innovative strategies, because the co-mediator provides a backup system. For clients, two people provide support. The mediators the team approach provides collegial support opportunities to verify perceptions, and benefits of cross-discipline expertise and learning”.

With institutional and multiparty mediation (domestic and international), cognitive conflicts and situational dysfunction magnify. Interdepartmental committees, layers of management, and internal and external counsel all have a hand in developing corporate policy, argument and settlement parameters. Although the institution may initially say that its representative has full settlement authority, that person may not have the flexibility to consider unexpected settlement options arising from the fluidity in these ‘guided negotiations’. Moreover, that person’s institutional management position and future career options may affect his or her effectiveness in reaching a collaborative settlement.

Parties (individuals and institutions) usually come to mediation framing the process, and the underlying controversy, in terms of their own conceptualised view of reality and their particularised goals. Some come to the table with an egocentric adversarial, zero sum ‘we’re right, they’re wrong’ posture; a ‘take no enemies’ approach. For a few, the driver is intelligence gathering and strategic advantage, anticipating impasse. For these, mediation is a burdensome, unnecessary hurdle to reach the real action before an arbitral tribunal or court. A mediator must get through the noise, and somehow guide the parties to a realistic settlement. This means influencing the outcome, which necessarily means ‘substitute one’s own will for the will of others’. This is neither easy nor enviable, when several million dollars, a critical patent, a longstanding corporate partnership or an international joint venture are at risk.

From the initial pre-mediation conference and through perhaps several caucus sessions, a mediator must establish equilibrium, foster dialogue and create negotiating equilibrium. At various point in the process, the mediator may be facilitator, next friend or even éminence grise.

A mediation involving petrochemical plant construction claims entails extensive document production, the distilling of very unique and complex technical and industry-specific issues into manageable form, the creation of a comprehensive and workable mediation plan and process strategy, and caucuses, not only with a party’s representative and counsel but also the supporting management or technical team participating in the caucuses The ‘cross-discipline expertise and learning’ of an inter-disciplinary makes those tasks easier to accomplish. Moreover, according to Ms Gold, “the inter-disciplinary team represents a unique synthesis of skills providing a level of expertise that a single mediator rarely possesses”.

Carl H. Perdue is a partner at Assouline & Berlowe, P.A. He can be contacted on +1 (561) 361 6566 or by email: chp@assoulineberlowe.com.

Carl H. Perdue

Assouline & Berlowe, P.A.