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Practical Problems and Solutions in Mediation Proceedings

Practical Problems and Solutions in Mediation Proceedings

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Published by Mladen Vukmir

This paper examines some of the practical issues arising in the field of mediation, with the introduction focused on the recent developments in Croatia. Some of the most common issues and obstacles professional mediators encounter within their work are enumerated and brieflya addressed. Some problems are noted in relation to the fact that mediators often appear in dual roles, as lawyers, or judges while mediating. That leads to another issue that is fundamental for the mediation process, which is the question of impartiality and independence of a mediator. It is demonstrated in the article that impartiality and independence need to be analysed in mediaiton somewhat different from the arbitration context, and especailly that the different role of independence in mediation neatly demonstrates the difference between these two ADR methods. Additional issues arise when evaluative approach is used and this and other variances are analysed. Moreover, the paper deals with problems such as conflict of interest and ethical discrepancies related to the mediation profession when performed by the members of the Bar or the Bench, and possible solutions to overcome those risks are considered, especially in lightof the invoicing procedures for mediation. Possible difficulties, such as unfavourable taxation can affect especially mediators who do not perform their activities exclusively. The author emphasizes the open issues discussed in the paper and indicates the areas likely to face further developments. This paper invites the members of mediation and legal professions to an open discussion in hope that it will serve to the benefit of both, the mediation community and mediation users

This paper examines some of the practical issues arising in the field of mediation, with the introduction focused on the recent developments in Croatia. Some of the most common issues and obstacles professional mediators encounter within their work are enumerated and brieflya addressed. Some problems are noted in relation to the fact that mediators often appear in dual roles, as lawyers, or judges while mediating. That leads to another issue that is fundamental for the mediation process, which is the question of impartiality and independence of a mediator. It is demonstrated in the article that impartiality and independence need to be analysed in mediaiton somewhat different from the arbitration context, and especailly that the different role of independence in mediation neatly demonstrates the difference between these two ADR methods. Additional issues arise when evaluative approach is used and this and other variances are analysed. Moreover, the paper deals with problems such as conflict of interest and ethical discrepancies related to the mediation profession when performed by the members of the Bar or the Bench, and possible solutions to overcome those risks are considered, especially in lightof the invoicing procedures for mediation. Possible difficulties, such as unfavourable taxation can affect especially mediators who do not perform their activities exclusively. The author emphasizes the open issues discussed in the paper and indicates the areas likely to face further developments. This paper invites the members of mediation and legal professions to an open discussion in hope that it will serve to the benefit of both, the mediation community and mediation users

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Practical Problems and Solutions in Mediation Proceedings
Mladen VUKMIR 
 
UDK kategorizacija rada
 
I. Introduction
Mediation is not anymore an unfamiliar topic at legal conferences. It could be said that a sea changeoccurred in the reception of mediation and other ADR techniques both on the side of the practitionersas well as on the side of dispute resolution techniques users. This has led to the introduction of mediation topics at legal conferences at regular basis. However, it might be said that, in spite of itsrapid introduction and acceptance in many countries, dispute resolution toolbox, ADR methods arestill of a somewhat unknown quantity among some legal practitioners.It is only natural that a subject that is still but a footnote in many law school curriculums did not get to be a familiar topic to too many legal practitioners. It should not look strange that many young lawyersmight be reluctant to lead their clients into the direction of an area that s/he is not really familiar with.It is deeply ingrained into the human nature that we are weary of the unknown and, consequently, thatlawyers who are not trained in communication and mediation techniques are somewhat reluctant to usethem. This is exacerbated by the fact that applying interest based dispute resolution techniques to aheated dispute might feel counterintuitive to the lawyers whose training was geared towards masteringthe position based dispute resolution techniques based on adjudication. Deciding by a third party isvery seductive in its essential simplicity in spite of the complexities that arose in the millenarydevelopment of legal systems. It might be suggested that one of the ways to get a person formed bylegal education to accept the very different, but equally challenging simplicity of the interest baseddispute resolution, is to unlearn partially the acquired way of position based thinking.While it is still not widely thought at the graduate level, on the other end of the spectrum, at thehighest levels of dispute resolution traditions, i.e., in the arbitration communities, paradoxically a verysimilar dynamics of perception exists. Those of us who participate in assisting the parties resolvingtheir disputes using all available techniques, from litigation and arbitration to mediation andmoderation, will sometimes note that reluctance in adopting mediation is resulting in misperception of its characteristics. Sometimes, in addition to the lack of familiarity that arbitrators not trained in themediation techniques feel when the subject is raised, there is just a whiff of a defence of vestedinterest reaction resulting in pushing the issue aside. Unfortunately, due to its expenses andcomplexities arbitration has sometimes been pushed into defence of its unequivocally useful role indispute resolution, long noted by the experts in the field
1
. As mediation is very different in that
Vukmir & Associates, Zagreb, Croatia. Mladen Vukmir is an IMI (International Mediation Institute) Certified Mediator andcertified by the Croatian Ministry of Justice. He is listed by the international Institute for Conflict Prevention and Resolution(CPR, NYC, NY, US) and Croatian Chamber of Commerce (HGK) Permanent Arbitration Court and Mediation Centre,WIPO and other mediation centres. He currently serves as a Member of the INTA Board of Directors, and is immediate pastINTA ADR Committee Chair. He serves on the INTA Panel of Neutrals (recently renamed as INTA Mediators’ Network).As the current AIPPI Croatia President, Mladen Vukmir is proposing further introduction of ADR methods in the intellectual property field. Mladen Vukmir is trained as a Mediator Trainer by CEDR and regularly works as Mediator Trainer inCroatian Ministry of Justice Mediator’s Certification Program. He was recently teaching Negotiations and DisputeManagement course as an adjunct professor at the American College of Management and Technology (ACMT) inDubrovnik, a Rochester Institute of Technology (RIT) graduate school.
1
 
See e.g. introductory part of the article “Witness Conferencing”, by Wolfgang Peter, in ArbitrationInternational, Vol. 18, No. 1, LCIA 2002, p.p. 47-58 at p. 47, where the author finds that: “It is increasingly feltthat arbitration no longer lives up to the expectation of its users. Complaints about formalism, over-lawyering,delays and inefficiency are frequent. This chorus of complaints counts amongst its members a fair number of lawyers who cannot truly disclaim a share of responsibility in this development. The idea that arbitration is asimple and straightforward procedure for adjudication of disputes has no longer much meaning, if it ever had.And the question as to which of the so-called common law or civil law procedural systems has had more
 
respect, a great flexibility is necessary for it to be fully embraced by the practitioners of other ADR techniques.It could be said that, in spite of its natural affiliation with various dispute resolution methods, the legalcommunity still shows much more affection for the positional-thinking based dispute resolution toolsthan it shows for the interest-based dispute resolution techniques. It might be useful therefore toexplore in this short write-up some of the issues that are arising in connection with ever-higher level of  penetration of mediation in many countries. This author would be glad to look into the situation of various countries situations he is familiar with, but for the purpose of this study it will suffice to look at the practical issues arising in the practice of the country he is most familiar with. Croatia’smediation industry development is a good example as any of the numerous countries going throughsimilar or comparable developments.
II. Mediation system in the Republic of Croatia as a basis for a discussion onpractical issues
In the Republic of Croatia the mediation system was finally set up by adoption of the third MediationAct in 2011 and preceding institutional structure development
2
. This endeavour to set up a mediationsystem started at the beginning of the millennium with the training of a first batch of mediators under the organizational and financial support of the USA and EU member states
3
, and rounded out with theadoption of the first Mediation Act in October 2003
4
. It is interesting and important to note that thefirst Croatian Mediation Centre, the Croatian Chamber of Commerce Mediation Centre was foundedwell before the enactment of the first Mediation Act
5
. Only a year later, but still just before theenactment of the first Mediation Act, Croatian Mediation Association (Hrvatska udruga za mirenje)was founded.
6
 The Croatian Mediation Association (HUM) was founded as an umbrella organization, having asmembers the large majority of Croatian mediators. The HUM has also acquired the authorization to perform trainings required for mediators’ certification by the Ministry of Justice of the Republic of Croatia. The kernel of the national mediation system was, thus, set up and all the premises for 
influence on International Commercial Arbitration may be of academic interest, but it fades in the light of therealisation that, in any event, the lawyers with their entire procedural arsenal have taken over.” He refers also to:Redfern and Hunter, 'Law and Practice of International Commercial Arbitration' (1999, Preface to the 3rd edn),at pp. v-viii; Fali S. Nariman, 'The Spirit of Arbitration, The Tenth Annual Goff Lecture' in 16 ArbitrationInternational (2000), at pp. 261-278; and Bruno Oppetit, 'Théorie de I'arbitrage' Paris 1998), at p. 25 who speaksof the 'déviation processuelle' of arbitration. This is to thank Dr. Branko Vukmir for pointing me to this article.Dr. Branko Vukmir is an ICSID arbitrator.
 
2
Act on Mediation, Zakon o mirenju Oficial Gazette nr. 18/2011.
3
The US provided a USAid funded program conducted through Booz, Allen, Hamilton consultancy and Carr,Falkner, Swanson ADR experts, while the EU countries that were active at various stages are The Netherlands,the United Kingdom, Austria, Slovenia and Germany, in the first place.
4
Act on Mediation, Zakon o Mirenju Oficial Gazette nr. 117/03. This first Croatian Mediation Act was draftedfollowing the UNCITRAL Model Law on Mediation.
5
Centar za mirenje Hrvatske gospodarske komore was founded in July 2002. See CZM HGK webpage athttp://www.hgk.hr/o-centru-za-mirenje/In Croatian language, October 10, 2012
6
Hrvatska udruga za mirenje (HUM) was founded on September 19, 2003 by coming into force of the Rules onMediation (Pravilnik o mirenju, Oficial Gazette nr. 81/2002). See HUM webpage at:http://www.mirenje.hr/index.php/o-nama/openite-informacije.htmland followed by Rules on Mediation(Pravilnik o mirenju, Oficial Gazette nr. 140/2009), In Croatian language. For a summary in English see:http://www.hgk.hr/category/sudovi-pri-hgk/centar-za-mirenje-pri-hgk/ October 10, 2012.
 
 performing the mediator’s profession in Croatia were created. All these systematic endeavours haveled to the formation of a network, including today the majority of mediation institutions
7
. After the adoption of the first Mediation Act additional mediators were trained thanks to the efforts of initially trained mediators and with the support of the Ministry of Justice of the Republic of Croatiaand the European Union (Phare project 2005)
8
. As a consequence further Mediation Centres weregradually founded. During that time, mediation was initiated in practice through a pilot program,firstly at the Commercial Court of Zagreb, then at the High Commercial Court of the Republic of Croatia and thereafter at many Commercial and Municipal Courts. This enabled listed mediators toacquire skills and experience. The role of the Ministry of Justice of the Republic of Croatia has to berecognized as its support lent the “official” approval of the efforts and gave more significance to theresults that were achieved. In the local context this was a very strong signal.The second Croatian Mediation Act was enacted in 2009
9
and immediately opened numerous newquestions to which the newly emerging mediation scene was trying to answer as quickly as possible.Although interesting, as they would fall under the scope of our present interest, inasmuch as the natureof the dilemmas raised by its text, we shall not enter in their analysis in the present paper. One of thetopics that was frequently discussed and studied included the changes in the regime of confidentiality.This Act strongly modified the original strong confidentiality protection by severely restricting itsscope, for the confidentiality protection only to be reinstated on different principles by the thirdMediation Act.It should be noted, however, that the efforts made to recognize the challenges and develop theappropriate solutions in response to the modifications have brought to an accelerated advancement of the profession and also raised new revelations on the nature of mediation at the local level. Thesediscussions have opened up discussions of greater depth and consequently brought about a greater insight of the local mediators. Much useful cognition in administration of mediation proceedings anddevelopment of explanatory material raising awareness among potential users were created in the process.Although the scope and extent of this report leave no room for further elaboration of the quiteremarkable history of the recent mediation development in Croatia and its comparison with that of other countries, we are of the view that the foregoing facts should be kept in mind. In fact, it could beargued that the development of mediation in Croatia is really a story of success, one of those storiesthat, according to many, are missing in Croatian transition process. The attainments of the mediationsystem are such that they almost seem unreal if compared with what seemed likely or possible ten or fifteen years ago. Many were sceptical at the time towards a successful introduction of mediation, andhave undervalued the possibility of mediators’ education and attraction of clients. The results achievedin the meantime have completely disproved these fears and today’s achievements seem far larger thanthe most daring predictions.At the same time, in spite of the achievements that are obvious, the mediation market still lacks manyelements that are yet to be built. The wealth of experience, however, provides a fertile ground for adiscussion of the issues that are arising in practice. Because of the mediation development level thusachieved, we are able to elaborate today particular practical issues appearing in practice, which can befirmly answered given present knowledge and familiarity with mediation matters in Croatia. Let usexamine here a few randomly chosen issues we have come across in the recent dialogues on the practical aspects of mediation. The issues selected are not meant to be exhaustive in any way.
7
A list of mediation centres registered with the Croatian Ministry of Justice is available on the webpage:http://mirenje.pravosudje.hr/Default.aspx?sec=50. Another list available on HUM-CPA webpage lists a number of mediation related institutions:http://www.mirenje.hr/index.php/o-mirenju/mirenje-u-hrvatskoj/institucije-za-mirenje.html).Both lists are as of October 10, 2012, but the webpage of the Ministry of Justice was last updatedon February 5, 2010.
8
Following web pages show information on the 2005 Phare project:http://mirenje.pravosudje.hr/Default.aspx?sec=48,http://www.mediationeurope.net/eng/croatia.htm, http://www.mprh.hr/Default.aspx?sec=469,
9
Act on Mediation, Zakon o mirenju Oficial Gazette nr. 79/2009.

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