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CPR European Mediation and ADR Guide International Institute for Conflict Preve

CPR European Mediation and ADR Guide International Institute for Conflict Prevention and Resolution 575 Lexington Avenue, 21st Floor / New York, NY 10022 / USA Phone: +1-212-949-6490 | Fax: +1-212-949-8859 | info@cpradr.org Copyright © November 2015 by International Institute for Conflict Prevention and Resolution, Inc. All rights reserved. 2 Praise for the European Advisory Board Mediation & ADR Guide "I've been involved with CPR's activities in Europe for over 10 years and it has been a long term ambition to develop a user-friendly resource for a European audience to promote mediation and CPR's resources. The European Mediation Guide is the product of genuine collaboration between leading European in house counsel and external counsel. Above all the Guide is focussed on helping corporates understand the benefits mediation has to offer, how to use mediation effectively to resolve commercial disputes and access on-line a wealth of other material to assist." Alexander J. Oddy Partner Herbert Smith Freehills LLP “The must-have guide for every in-house counsel regarding Alternative Dispute Resolution. It introduces ADR to the practitioner, increases familiarity with mediation and other ADR processes, and provides advice on each stage of the process, from contract negotiation to building the contractual relationship to conflict resolution: everything in- house counsel, particularly transactional lawyers, need to anticipate and successfully resolve conflicts through ADR.” Isabelle Robinet-Muguet General Counsel International Laws and Contracts, Group Mediator BtoB, Orange “With mediation on the rise internationally, CPR’s European Advisory Board has produced the definitive guide to mediation and other forms of ADR. Extremely practical, with access to numerous on-line materials, it is the result of an intense collaborative effort between prominent in-house counsel and law firm practitioners. While primarily focused on mediation the Guide also provides useful insights into other forms of ADR, including arbitration. The Guide’s sections on mediation cover each step of the process; of particular use will be the section on mediation case studies, which will assist organisations that are considering using mediation to understand how others have used mediation. In sum, this is an invaluable, user-friendly toolkit for every corporate counsel and practitioner wanting to use mediation and other forms of ADR.” Jean-Claude Najar International Counsel Curtis, Mallet-Prevost, Colt & Mosle LLP 3 USING MEDIATION AND OTHER ADR PROCESSES A GUIDE FOR EUROPEAN CORPORATES AND ORGANISATIONS ABOUT CPR The International Institute for Conflict Prevention and Resolution (CPR) is an independent non-profit organization that, for more than 35 years, has helped global businesses prevent and resolve commercial disputes effectively and efficiently. Our membership consists of top corporations and law firms, academic and government institutions, and leading mediators and arbitrators around the world. CPR is unique as: (1) a thought leader, driving a global dispute resolution culture; (2) a developer of cutting-edge tools and resources, powered by the collective innovation of its membership; and (3) an ADR provider offering innovative, practical arbitration rules, mediation and other dispute resolution procedures, and neutrals worldwide. For more information, please visit www.cpradr.org. CPR's dispute resolution services include:  Resources for drafting pre-dispute alternative dispute resolution (ADR) clauses and custom post-dispute ADR agreements  Rules enabling parties to conduct administered and non-administered arbitration, appellate arbitration, mediation and other forms of ADR  Developing selection criteria for neutral selection, as well as generating lists of neutral candidates to meet parties’ specific, complex needs  Procedures for challenging arbitrators (Challenge Protocol)  Direct appointments of arbitrators and UNCITRAL appointments  Appointment of special arbitrator for emergency relief  Fully administered arbitration  Fund-holding capabilities CPR has a panel of arbitrators and mediators in over 20 industry practice areas worldwide (for more information about the panels, visit CPR’s website at http://bit.ly/CPRNeutrals). For more information about the full spectrum of dispute resolution services offered by CPR, visit CPR’s website at http://bit.ly/CPRDRS. CPR IN EUROPE CPR’s European presence dates from the early 1990s and in an effort to continue to efficiently serve the needs of its members in Europe, CPR has created a European Advisory Board (EAB). Via the EAB, CPR seeks to be a leading independent resource in Europe helping businesses and their legal advisers, whether in-house or external counsel, resolve and bring creative solutions to complex commercial disputes more efficiently and cost effectively, and preserve/enhance commercial relations. A list of the EAB members as at October 2015 appears at Appendix 3. For these purposes, the EAB develops resources, shares knowledge and best practices, collaborates in joint initiatives and activities with other European stakeholders and institutions, all in conformity with the applicable legal, regulatory, and ethical environment. Critically, the EAB provides a forum for in-house counsel to network and exchange ideas and experiences with their peers and with leading practitioners across Europe. For more information, visit http://bit.ly/CPREurope. 4 INTRODUCTION In furtherance of its goals, the EAB has produced this guide aimed at corporates operating in Europe and beyond to assist them in understanding and taking full advantage of the range of "alternative dispute resolution" ADR processes available. This is intended to be an introductory guide to the most widely used processes and when they might be suitable, particularly mediation, and provides practical suggestions on how to make use of ADR processes. It provides links to an extensive range of additional materials and practical resources for access to more in-depth information. It also incorporates a brief introduction to arbitration. This guide does not provide legal advice on using ADR processes. There may be variations among the national laws of the European Union Member States as to the treatment of certain matters discussed in this guide. Accordingly, users of this guide should consider taking legal advice in the appropriate jurisdiction(s) on their particular circumstances. The EAB's efforts to produce this Guide have been led by: Isabelle Robinet-Muguet, Orange; and Alexander J. Oddy, Herbert Smith Freehills LLP With support from: Jürgen Klowait – Attorney at Law & Mediatior Clifford J. Hendel – Araoz & Rueda Abogados Birgit Sambeth Glasner – Altenburger Teresa Giovannini – Lalive Javier Samaniego – Bird & Bird Noah Hanft – CPR Olivier P. André – CPR 5 TABLE OF CONTENTS November 16, 2015 Section Subject Page (click to go to page) ABOUT CPR ....................................................................................................................................... 3 CPR IN EUROPE ................................................................................................................................ 3 INTRODUCTION................................................................................................................................. 4 1. ADR PROCESSES: OVERVIEW ............................................................................... 6 2. GUIDE TO ADR CLAUSES ........................................................................................ 9 3. MEDIATION: SUITABILITY AND TIMING ................................................................ 12 4. MEDIATION: PROCESS AND PROCEDURE ......................................................... 15 5. MEDIATION: FINDING A MEDIATOR ...................................................................... 18 6. MEDIATION: MEDIATION AGREEMENTS ............................................................. 19 7. MEDIATION: PREPARING FOR A MEDIATION ..................................................... 21 8. MEDIATION: FREQUENTLY ASKED QUESTIONS ................................................ 22 9. MEDIATION: CASE STUDIES ................................................................................. 24 10. ARBITRATION .......................................................................................................... 25 APPENDIX 1 INDUSTRY SECTOR-SPECIFIC RESOURCES ..................................................... 27 APPENDIX 2 MEDIATION: CASE STUDIES ................................................................................. 29 APPENDIX 3 CPR EUROPEAN ADVISORY BOARD MEMBERS AS OF OCTOBER 2015 .......................................................................................................................... 36 6 1. ADR PROCESSES: OVERVIEW 1.1 The term "ADR" is an umbrella term used to refer to a multitude of formal and informal procedures outside of traditional (courtroom) dispute resolution mechanisms. Arbitration is regarded as falling within the range of processes that come within the term ADR in many jurisdictions in Europe. Nothing of substance turns on variations in this approach to nomenclature. 1.2 ADR processes are used widely in order to resolve disputes more efficiently, confidentially and at a lower cost than litigation. They can also help parties find practical, commercial solutions to disputes, allowing them to maintain on-going business relationships. 1.3 There are a multitude of options available to parties wishing to engage in ADR. Not all processes will be appropriate for all parties or all disputes. The first step in identifying the most appropriate process is to understand what options are available and to determine which option, or options, respond(s) best to the parties' needs and circumstances. This analysis will need to take into account the extent to which the parties have selected through the terms of any relevant contract one or more dispute resolution processes and how such processes are to be conducted. A comparative table giving a high level overview of some of the most common processes can be found below. 1.4 One key distinction to note is between processes which are adjudicative, in that they result in a binding decision (such as arbitration and expert determination), and those which are non-adjudicative, in that they produce non-binding decisions (such as early neutral evaluation and mediation). 1.5 One procedural aspect worth noting, is that ADR may either be organised by the parties themselves (self-administered), or the parties may pay a fee to an ADR institution that will arrange the process (administered). Examples of self-administered processes are a mediation or arbitration set up on an ad hoc basis by the parties contacting a neutral third- party mediator or arbitrator directly. However, mediation and very commonly arbitration can be arranged with the assistance of an ADR institution. 1.6 In deciding which ADR process is most appropriate, parties might consider the following: 1.6.1 the nature of the dispute: whether the issues in dispute are legal, technical, or relate only to quantum; 1.6.2 the extent to which the process is capable of exploring uploads/Geographie/ mediation-guide.pdf