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© 2008 Loek Hopstaken1
HOPSTAKEN
An Introduction to Mediation
Notes to seminars at the International Business & Law Academy, HCMC – July 19, 2008
The lecturer has been an active Mediator since he completed his mediation education in July2001. Since then he has been a registered NMI Mediator. Both in his work as businessconsultant and teacher at international management schools he incorporates and promotes Mediation as a major tool for conflict prevention, handling and resolution.
These handout notes do not cover all topics.Some are covered in the handout articles,others are not. I suggest the participants take notes, and conduct their own research on‘dispute resolution’, ‘mediation’ and ‘conflict management’.Morning seminar: Overview of the subject09:00 – 11:30
Topics:-What is Mediation?-What is the role of Mediators?-Willingness: the no. 1 make-break factor in Mediation-The Anatomy of Conflict: the ‘Right Wrong Box’-Mediation:restoration of communication by dispute resolution-Why are many Lawyers interested in becoming a Mediator?-Why is it hard for a Lawyer to be a good Mediator?-Why should a Lawyer be a Mediator as well?-Cooperation between Courts, Judges, Lawyers and Mediators-Mediation specialisms-Requirements for Mediators; Mediator skills-The major governing policies in Mediation-Mediation as a toolkit for conflict management-Q&A
Afternoon seminar: An introduction to the practice of Mediation13:00– 15:00
Topics:-The Mediation procedure-Examples ofMediation tools-Victims: a trap for Mediators-Keeping the balance-Dealing with an imbalance in power-The procedure in action: the mediation ‘wheel’-The Harvard Negotiation Project-Aconflict resolution ‘short cut’-Mediation training-Q&AThroughout the seminars the lecturer will refer tohis own mediation experiences.
 
© 2008 Loek Hopstaken2
Mediation: the fastest growing dispute resolution activity around the world
During the past 25 years, a new form of dispute resolution has spread around the world. Itrapidly earned a reputation as a valuable addition to any dispute resolution activity, includinglitigation and arbitration. There are now several schools of Mediation. Some lean heavily onpsychological insights and psychotherapeutic tools, others focus on communication techniques.In many cases, working knowledge of the local and applicable laws is mandatory. The best, inmy personal opinion, take the most workable tools available to train effective and successfulMediators who can handle virtually every possible conflict situation. Under one condition:
Parties must consciously choose Mediation as a method to settle their dispute by activelycontributing to its resolution. They must ‘will’ it, from start to finish!
Major definitions
The Dutch Mediation Institute (NMI) defines mediation as: “Procedure in which Parties with thehelp of a Mediator try to solve their dispute in harmony, applying the [mediation] rules.”Parties are defined as: “The Parties (or one of them) who wish to resolve their dispute by use of Mediation.”A mediator: “The person who leads the mediation-procedure, and who is registered.”A mediation agreement: “The [written] agreement in which Parties and Mediator takeresponsibility for resolving the dispute as described in the agreement.”A conflict arises, when two or more parties want something to be different, stop communicatingand start fighting. The Chinese character for conflict, however, teaches us that there is also apossible future. It combines the characters for ‘danger’ and ‘opportunity’, so I am told.Conflicts are clashing points of view about content, or relationship. A disagreement aboutcontent could lead to a deteriorization of the relationship; this also works in reverse. When youdislike someone, you’ll tend to disagree with him/her. A conflict between parties who have asimilarity in power is easier to handle than a case where there is imbalance, such as a employer –employee, or parent – child conflict.
Willingness and its reward
Mediation is no litigation or arbitration. A Mediatordoes not act as a Judge to decide about theresolution of a dispute, or conflict. He facilitates peace. The procedure is based upon willingnessfrom Parties to discretely resolve their conflict in a way that is satisfactory to all. The reward fora resolved dispute is often impressive. When it is successful, Parties will have-resolved their dispute(the primary objective)-stayed out of court and the public eye-saved much time-saved much money-saved face-gained respect from their direct social and business environment,that was undoubtedlyaware of (or suffering from) the dispute, as they take full responsibility for the resolution-justified pride:
they have solved their problem themselves, as decent human beings
.
Courts refer to Mediators
In many countries courts and Judges have less and less time. The waiting lists have becomeoverlong. This urged themto look for alternatives. This development leads more and more todeployment ofMediators to help settle a dispute out-of-court. In the Netherlands many Courtsuse Mediators. Still, most mediations take place without a Judge’s initiative. In my country (16,5million inhabitants), the past year only around 4,000 mediations were registered at the NMI; this
 
© 2008 Loek Hopstaken3
number is growing. However, there are around 3,500 registered Mediators. Although the rule isthat a mediation should be reported to the NMI, Parties often do not want anyone to know abouttheir dispute. So the number of actual mediations greatly outnumbers the registered mediations.This serves to explain why yearly only 1 mediation per Mediator is being registered.Yet, eachlower Court nowadays has several ‘mediation rooms’, where Parties meet a Mediator to preparea mediationprocedure. I have met Judges from Amsterdam and Haarlem who have becomeactive Mediators. In fact, many Judges are now Mediators as well. (Of course they don’t operateas such in their own areas; this would lead to protests from Lawyers.) They tell me it gives themmuch more job satisfaction, and revitalizes their original ideal to help bring justice to society.
Two cases
Many Mediators are invited by a third party (such as a Judge, or a family member) to contactconflicting Parties and offer their service. Others are contaced after Parties have found a suitableand registered Mediator on the NMI website. In my experience, I am usually being approachedby one Party, who was informed about me by someone in my business network. When a friendor close relative asks me to mediate, I decline: effective mediation is hard when the Mediator istoo close to one side of the conflict.
Two brothers, two Directors: a success story
Most Dutch companies are small and medium-sized family businesses, with 20 – 500 personnel.Nowadays, many companies founded after the Second World War have passed into the hands of the founders’ children or grandchildren. Often not one, but two, or even three children. While thefounder was still alive, (usually) he would intervene whenever his successors would have anargument. He would simply settle the dispute by making a firm decision. However, this seldomhandled the full dispute, as the emotional side of it had not been addressed.This was the case with two brothers, mr. A and mr. B. Both appointed Director by their father,each owning 50% of the shares. Soon after their father passed away, their old argument cameback to life. Like most conflicts, it was a 98% emotional affair. When I first arrived at thecompany, I soon discovered that it was facing bankruptcy. The best employees were leaving, orhad plans to do so. Reason: they had lost their faith in their managers –A and B, and the futureof their company. The two brothers would not speak with each other, only shout – even in thepresence of employees. The willingness of A and B to accept mediation came from theirdesperation to lose their company and their income. During the mediation, which took fourmeetings with an average of 2 hours each, it was as if we were looking at a whole chain of earlierdisputes, going back to the time when they were boys. When those childhood disputes wereaddressed, the argument suddenly seemed to vanish, as the two brothers started laughinguncontrollably. When I returned a few weeks later, the brothers were in good communication.They had given a presentation to their personnel, in which they had apologized for their behavior,and showed they were ‘back on track’. The company was back on track as well. By the end of the year it was ‘business as usual’.
 A marriage falling apart: a lesson
Once people know you are a Mediator, you get invitations. You are seen as a Peace Maker. I tryto avoid invitations from people I know, as it does happen that mediation fails. In my experience,only because the willingness of one of the Parties disappears. Often there is someone elsewhispering this Party in the ear, telling him or her to quit. And when a Party is not strong orcourageous enough, he or she will drop out of the mediation process altogether.When my long-time friend C. called me, asking if I would be willing to mediate between himand his wife as their marriage was falling apart, at first I declined. Apart from being invited byone of the Parties, I felt this was ‘too close for comfort’. But when his wife called me with the
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