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Mediation Committee questionnaire 2021

Monday 20 December 2021

In this article, Mediation Committee officers give their views on effective mediation, the future of mediation and share a fun fact about themselves. With Federico Antich, Martin Hauser, Shreyas Jayasimha, Michael McIlwrath and Joe Tirado.

Federico Antich

Where you are based and what organization (if any) you are involved with? 

Firenze, Italy - Founder, Studio dell'Avvocato Antich

What brought you to mediation? 

An intellectual by-product of my research in law for my degree thesis, whose topic was the comparative analysis of medical malpractice law in Italy and the United States, further developed and refined through readings and formal courses in Italy, the US and the UK.

What is the most important attribute of effective counsel in mediation? 

The ability to protect and fulfil his/her client's interests/needs and the awareness that legal rights are just vehicles to address those interests/needs.
 
What is the most important attribute of an effective mediator? 

The ability to 'listen' with all senses and the acumen to elaborate the perceived input in the best interests of all parties involved.  
 
What makes mediation in your jurisdiction unique? 

The messy framework that is typical of Italy gives great space to ingenuity and room for debate of almost any aspect of mediation: aside being acknowledged as the test-bed country for the use of mandatory mediation in civil and commercial disputes, many experienced and savvy Italian mediators can conduct proceedings with great style.    
 
In 10 years, how will the practice of mediation have evolved?  

Statistically speaking not that much, as the numbers of mediations are numerous but yet not remarkable. Noteworthy is the progressive fading of some public providers (Chambers of Commerce) who were at the forefront of the ADR movement in the early 1990s to the benefit of others (Local Bar Association) whose contribution then was near zero and who now instead are playing a major role, even greater than many private providers which in turn are struggling - on average and with few exceptions - to fill their dockets.

How will it be different from today? 

In the next ten years it may be expected that the current situation will be crystallised, assuming the Ministry of Justice, which has the power to oversee and regulate the market of mediation providers, undertakes a substantial review of the actual provisions (enacted in 2010 with only minor subsequent revisions) will support the growing hegemony of the Bar Associations. It will be interesting also to see whether there will be modified rules governing the training and maintaining of the 'status' of mediators since they are still frozen to 2010 while the market has evolved and there is a perceived growing need for quality and predictability at the mediation table. 
 
Please share a fun fact about yourself.

As the third son of an engineer, I have grown up with the idea that if there is something worth doing in life, it is - quoting Shakespeare: 'kill all the lawyers'. Despite (or because of) that I decided to swim against the tide and join Law School. But it was not until I was waiting to discuss my degree thesis that I realised how important for one's own growth it is to face adversities. At that time, I was training to get a pilot license and realised the universal value of a basic principle of aerodynamics that could be summarised as follows: when everything seems to be against you, remember that an airplane takes off against the wind, not with it. That’s what I mean for being a High Flyer Mediator!

Dr Martin Hauser

Where you are based and what organisation (if any) you are involved with?

Munich, Germany, since 2020 (after 35 years in Paris, France).

What brought you to mediation? 

Working for more than 33 years as a litigator and as counsel in international arbitrations, as well as arbitrator, it became obvious to me that the authoritarian way of commercial dispute resolution is generally speaking not satisfactory for parties; learning about mediation first at WIPO in 1998 in a workshop with Robert Mnookin was a shock for me. Later I did a mediation training in Paris at the CMAP and started in 2013 to 2015 my Master of Arts university studies in Frankfurt Oder, Germany. I have worked as a mediator for 13 years, full-time since 2020.

What is the most important attribute of effective counsel in mediation?

Having been trained in interest-based negotiation.

What is the most important attribute of an effective mediator? 

Having a deep understanding of the subject matter allowing the mediator to ask the appropriate questions which will make the parties move away from their legal positions and advance towards a solution.

What makes mediation in your jurisdiction unique? 

In France, a law of 8 February 1995 implemented  court-ordered mediation (court-ordered with the parties’ agreement). 

In Germany, mediation was recognised and its principles determined by law only on 21 July 2012.

In 10 years, how will the practice of mediation have evolved?  How will it be different from today?

Societies are changing, slowly but surely, from a pyramidal structure to a more horizontal approach. Accordingly, conflicting parties will increasingly resolve their disputes by negotiation and mediation instead of waiting for an authoritarian solution to their dispute.

Please share a fun fact about yourself. 

No idea, we would have to ask others...

Provide a summary of any relevant developments in your jurisdiction

I do not consider that there are important recent developments in mediation, neither in France nor in Germany. Since the French legal system is slow, judgments not easily predictable, my impression is that parties will turn more easily to mediation than in Germany where the judges fulfil their conciliatory mission by informing the parties about the strengths and weaknesses of their legal case, which would be unimaginable in France.

Mr Shreyas Jayasimha

Where you are based and what organisation (if any) you are involved with?

I am an advocate who enrolled with the Bar Council of India in the year 2000. I am also an accredited mediator, arbitrator and a founding partner at Aarna Law LLP, India and Simha Law, Singapore. 

What brought you to mediation?

It was a course conducted by ADR Group, UK by Mr Sriram Panchu, Senior Advocate held in the British Council, Chennai in the year 2008. Thereafter, I stayed connected with mediation as a counsel and began to evangelise mediation in every dispute, to at least reduce the scope of the dispute if not to resolve it. 

What is the most important attribute of effective counsel in mediation?

Deep listening, emotional intelligence and the ability to elevate the conversation

What is the most important attribute of an effective mediator?

Establishing and maintaining neutrality and credibility, creativity, flexibility and non-violent communication

What makes mediation in your jurisdiction unique?

The concept of mediation in India is ancient. For centuries, communities in India have preferred to resolve disputes by referring issues to the elders in the community. Further, the people involved in the dispute understand the importance of saving face and are more amenable to a compromise. The high costs of litigation and time-consuming process of adjudication of disputes in courts also make mediation an attractive means of dispute resolution.

In 10 years, how will the practice of mediation have evolved? How will it be different from today? 

I believe, in 10 years, resolution of disputes will be technology driven. Negotiations of disputes through bots is an eminent possibility. International mediation as a means of disputes redressal will be more prominent and easily accessible.

Please share a fun fact about yourself.

I have a sense of beat and rhythm and look for it in conversations too.

Mr Michael McIlwrath

Where you are based and what organisation (if any) you are involved with?

Florence, Italy.  I’m the former head of litigation for GE Oil & Gas and most recently Vice-President - Litigation of Baker Hughes Company.  By the time this is published, I will hopefully have set up my new business, tentatively called MDisputes, to provide in-house support for international dispute resolution, focusing principally on SMEs. Obviously, I hope that increased use of mediation will help them achieve their goals.  I’m also the current Chair of the Governing Body for Dispute Resolution Services of the ICC; and a member of the Organizing Committee of the Florence International Dispute Academy.

What brought you to mediation?

I came to mediation when I transitioned from a law firm to an in-house litigation counsel role in 1999, responsible for resolving disputes around the world. 

What is the most important attribute of effective counsel in mediation?

Understanding that the parties want outcomes, and that mediation, arbitration, and litigation are not ends in themselves, but ways to get to an outcome. But they operate on different timescales and at vastly different costs.
 
What is the most important attribute of an effective mediator?

Ability to help parties establish realistic objectives.

What makes mediation in your jurisdiction unique?

International mediation is still very much in development. What makes it a challenge is finding mediators who can step outside of their legal training, and understand the expectations and challenges of parties from other legal systems. 

In 10 years, how will the practice of mediation have evolved? How will it be different from today?

Technology will obviously play a greater role in all forms of conflict resolution. It will be different in that that technology has probably not yet been invented.

Please share a fun fact about yourself.

I’m not a particularly good guitar player, but that fact doesn’t stop me from getting together with friends and playing music together.

Mr Joe Tirado

Where you are based and what organisation (if any) you are involved with?
 
London, Garrigues UK LLP.

What brought you to mediation? 

A desire to find a better way to resolve disputes. 

What is the most important attribute of effective counsel in mediation? 

The ability to know when to step back and allow the parties to engage directly.

What is the most important attribute of an effective mediator? 

Flexibility!

What makes mediation in your jurisdiction unique? 

Strong court support for the use of mediation.

In 10 years, how will the practice of mediation have evolved?  How will it be different from today? 

It will continue to grow, especially in international disputes.

Please share a fun fact about yourself.

Forgetting to practice and having to mime playing the recorder throughout a junior school concert. Fortunately, there was no solo!