The Scandinavian mediation initiative CPH Mediation & Negotiation is expanding to include Norway, and is now represented in Denmark, Sweden and Norway. Lawyer and mediator Morten Tveten, who is the director of the Norwegian Bar Association’s Mediation Center – mekling.no, joins the collaboration.

With mediation, interest-based negotiation and constructive conflict resolution as its focal point, CPH Mediation & Negotiation is a joint Scandinavian collaboration based in Copenhagen, Stockholm and Oslo with the aim of helping companies and organizations in Scandinavia to handle disputes and conflicts in an efficient and predictable way to achieve the best possible commercial results – and at the same time keeping costs down.

The intention is to resolve commercial disputes and conflicts through negotiation and mediation efficiently, quickly and as early as possible with a focus on finding collaborative solutions.

The companies get access to Scandinavia’s largest network
With Morten Tveten’s entry into the collaboration, CPH Mediation & Negotiation is now represented in all the Scandinavian countries and the customers thus gain access to the best competencies and largest networks within out-of-court dispute resolution in Scandinavia.

And Gert Nilsson Eldrimner adds:

Companies want effective solutions based on more than just legal opinions
Negotiation is the basis of most commercial agreements. But often things do not go as expected. There may be a need to adjust the agreements, align expectations and sometimes to renegotiate to avoid disputes and conflicts, and sometimes you have to return to the negotiating table to find the commercially correct solution to avoid ending up in court or arbitration.

Disagreements in commercial matters, disputes and conflicts are most often rooted in human factors, such as poor communication, misunderstandings and mistrust combined with conflicting interests and unwillingness to focus on the other party’s interests. All of these factors make it more difficult for the parties involved to find the best commercial solution themselves, and here the choice of the right advisory competencies can be of decisive importance.

In addition to his background as a lawyer and mediator, Morten Tveten also has significant experience from the business world, e.g. as Executive Director for Rambøll.

“I think I can bring with me a practical experience that can contribute significantly in our counselling. During my time in Rambøll, I learned how many resources were wasted on conflict management in construction,” Morten Tveten explains. “This applies to legal costs in connection with court cases, but not least also the use of internal resources to obtain documentation and “evidence”. These are resources that could have been used to make money on technical tasks instead.”

Often minor unresolved issues pile up, and the frustrations over the unresolved issues sometimes lead to cases growing into legal disputes which quickly turn into “issues of principle” that are resolved by lawyers through lengthy and expensive legal proceedings in court or by arbitration. Many times, however, the problems are not about law at all, and the legal processes end up closing the doors to the appropriate solutions.

“Through the work in Rambøll, among other things, I have gained a deeper understanding of similarities and common opportunities for multinational cooperation on conflict resolution, while at the same time realizing that there are also differences that are important to be aware of.”

By using acompetent negotiation advisers, companies can get help to prepare, organize and carry out negotiations so that the focus is maintained on finding the best commercial solutions. Sometimes it can be done through ordinary negotiations and other times, it can be beneficial to also involve a mediator to facilitate the negotiations.

Fast and effective resolution of commercial conflict
Interest-based negotiations and mediation are modern, fast and efficient ways of resolving commercial disputes. Whether there are two or more parties, the aim is to resolve the disputes through dialogue and negotiation with the aim of reaching a solution tailored to the interests and needs of the parties.

Most companies rarely have a commercial interest in leaving significant business decisions to a judge or an arbitrator. Companies have a far greater interest in maintaining control and keeping disputes on the negotiating track, so that they can move forward quickly and efficiently, keep costs down and focus on future collaborations rather than past disagreements.

• 

Trade between different states is taking place on a greater scale than ever before. Small and large companies are doing business across borders every day, all around the globe and many companies are established abroad. However, this is by no means new information.

Disputes arising from international business dealings can be complicated and expensive, especially if the parties come from different countries and continents. Moreover, existing business relationships can often break down while in conflict. There are of course courts and arbitrators to resolve cross-border disputes, but this is not only a very expensive and potentially destructive way of finding a solution, it is also often very time-consuming. But, this is also not news to you.

So, what can we do in order to effectively manage a cross-border dispute?

In this forum I think I do not have to argue for the use of mediation, but is there something else that could be considered?

Companies from different countries often have significant social and cultural differences. This might imply that both parties want a mediator from their own cultural, legal and industry background. If so, the dispute can be managed by two mediators, one from each country. This is called ‘co-mediation in cross-border disputes’ and can be a very powerful tool in such cases. In addition to the general benefit of a mediator with four ears, four eyes, and two brains – through co-mediation the parties also can achieve the advantage of mediators with a multi-cultural approach. This can ensure the parties’ respective interests and needs are met, which is a fundamental cornerstone in mediation.

Two heads are better than one

Imagine, for example, a German company in dispute with an American company, attending mediation in New York City with a mediator from the US. The German company might feel it is ‘playing a game’ far away from home. In such an instance it could be productive to use co-mediators, one from America and one from Germany. This can help to build trust in the process from both parties.

In emotionally charged cases where there is a considerable amount of tension, co-mediation can also be highly effective. One party may need a lot of attention or handholding, which can be dealt with by one mediator while the other focuses on other matters, this can both allow for greater sensitivity towards the parties and efficiency overall.

Furthermore, typical multi-party cases conducted by single mediators can involve a lot of waiting around. Participants may spend a lot of time sitting in separate rooms waiting for the mediator to return to them. A long wait can lead to uncomfortable downtime or even frustration, which can affect the progress of a mediation or at least such a perception. Two mediators working together however, can divide up the work – each separately engaging in discussions with participants during that time. As long as the co-mediators are well organised, compatible, and are able to keep each other up to speed on the status of the negotiations, they can be twice as effective in moving the case towards resolution.

Working together

There are of course challenges in co-mediation, such as the need for both mediators to have a really well developed ability to collaborate with each other. This is generally a matter of practise, which in the long term could be managed within mediation skills training. In the short term you have to find mediators who are already good at collaboration and willing to do it. One way of facilitating such collaboration is to let one of the mediators be the main mediator, which might be the mediator from the country where the mediation sessions are held.

There may also be language difficulties. Then you probably have to find mediators that share a common language with the parties. Often one of the widely spoken and common language of communication will work.

However, from my perspective the above mentioned challenges are of a technical nature and need to be managed as such. I still find the concept of co-mediation to be a powerful tool in cross-border disputes. From my point of view the advantages of co-mediation still distinctly weigh up the challenges.

As far as I know ‘co-mediation in cross-border disputes’ is not a commonly used form of mediation today, but it is my strong belief is that it has a very bright future.

The article was published earlier at the Global Pound Conference Blog (2017) and can also be found on IMI’s webpage: https://imimediation.org/2017/07/25/co-mediation-in-a-cross-border-context/

In a unique and ambitious initiative to shed light on how civil and commercial conflicts are resolved in the 21st century – the Global Pound Conferences brought together over 4,000 conflict resolution stakeholders in 24 countries worldwide. The results are compiled in the report: Global Pound Conference Series: Global Data Trends and Regional Differences

With a focus on corporate conflict resolution needs, the report challenges the traditional and basic notions of what clients want and how lawyers should represent them in commercial conflicts.

The report identifies four global key themes:

Efficiency is the key priority of Parties in choise of dispute resolution processes
Most conflict resolution offers remain an adversarial process with legal rights as the focal point. About two-thirds of the participating company representatives at GPC indicated that they want more efficiency in conflict resolution. This calls into question whether traditional conflict resolution processes still meet the needs of users.

The companies expect greater collaboration from Advisers in conflict resolution
About two-thirds of the company representatives also expressed that they needed more cooperation from their lawyers. Both in the interaction between lawyer and client, but also in the approach to counterparties. This calls into question the traditional notions of how lawyers should represent clients. Is the zealous lawyer who stubbornly and at all costs fights his clients’ case still appropriate?

Global interest in the use of mediation – both before and alongside litigation and arbitration
With data pointing to a more collaborative and effective approach, it is not surprising that participants indicated that parties to conflict either through legislation or protocols and mediation clauses should be encouraged to use methods such as mediation before initiating legal proceedings. The report also highlights a growing desire for mediation to be used alongside litigation and arbitration.

Lawyers are considered to be the primary obstacle to change
The report concludes that corporate lawyers are expected to be the primary initiator of a change in the choice of conflict resolution method. In contrast, around 70% of conference participants indicated that external lawyers were the primary barrier to a changed approach to conflict resolution in commercial disputes.

For further information on Global Pound Conferences, including the other GPC reports, please refer to IMI’s website: www.imimediation.org/gpc

The GPC North America report predicts a changed approach to commercial conflict resolution in the North American market and states that routine use of litigation and arbitration does not meet business expectations, whereas mediation has become mainstream and is becoming the most universal conflict resolution process.

Continue reading → Global Pound report – North America

Last september the so-called Singapore Convention on Mediation entered into force, marking a significant development in commercial conflict resolution at a global level. With the convention companies around the world can look forward to greater security in resolving cross-border disputes through mediation, as the Convention provides a more effective means of enforcing agreements concluded through mediation.

The convention opened for signatures at a major ceremony on August 7 2019, when as many as 46 countries signed the convention and thus became one of the UN trade conventions, which on the first day has achieved the highest level of approval among UN member states which reflects international recognition and the desire to promote the use of mediation as a conflict resolution tool.

Since the opening of signatures last year, a total of 54 countries, including the United States, China and India, have acceded to the convention.

The convention aims to give companies around the world greater security in resolving cross-border disputes through mediation by enabling them to go directly to the courts of countries that have ratified the treaty. The harmonized and simplified framework aims to lead to time savings and lower costs, which is especially important for companies in times of uncertainty, e.g. during the current COVID-19 pandemic.

The convention has created a basis for companies to rely on mediation as an effective and secure conflict resolution tool for their cross-border agreements and to have assurance that the agreements entered into through mediation can be enforced.

United Nations Commission On International Trade Law (UNCITRAL) together with the Singapore Ministry of Law is hosting the Singapore Convention Week 2021 (SCW2021) in Singapore this september.

Read more about the SCW2021 here.

Brancheinitiativet Værdibyg giver i vejledningen konkrete værktøjer til afklaring af konfliktens kerne og selve konfliktløsningen. Derudover giver vejledningen en række anbefalinger til, hvordan man som part kan forberede sig og bidrage til en effektiv og værdiskabende mediation eller mægling.

I byggeriet er mediation og mægling to forskellige konfliktløsningsprocesser. Grundlæggende søger man med såvel mediation som mægling at få afklaret konfliktens kerne og at nå frem til en fælles god løsning, men mediatorens og mæglerens rolle er forskellige. Således forholder mediatoren sig neutral og upartisk, og bringer ikke egne løsningsforslag på banen, men har fokus på at facilitere forhandlingsprocessen. Ved mægling har mægleren oftest en faglig baggrund, som kan bringes i spil med evt. løsningsforslag, hvis parterne ikke selv kan komme videre. Mæglerens forslag er dog ikke bindende for parterne.

I vejledningen gives der en række anbefalinger til, hvordan man som part kan forberede sig og bidrage til en effektiv og værdiskabende mediation eller mægling.

Vejledningen understøtter reglerne i AB-systemet og Voldgiftsnævnets procesregler og kan downloades her.

Forveksler du mediation med meditation? Tror du, at mediation er en blød og hippieagtig måde at løse konflikter på? Så tro hurtigt om igen. 

Mediation er en kontant og effektiv metode, som flere og flere advokater har fået øje på og bruger som alternativ til sure og dyre retssager. I Løsningens labyrint fortæller en række garvede advokater om deres erfaringer med mediation og om, hvorfor metoden er en gave til erhvervslivet.

Med bogen følger tillige en podcast serie, hvor du kan høre en række garvede mediatoradvokater fortælle om deres praktiske erfaringer med mediation.

Du kan finde podcastserien “løsningens labyrint”, hvor du henter podcasts, eller lytte til afsnittene her.