Manon Schonewille - International Association of Legal Expenses

Transcrição

Manon Schonewille
JAMS International Panelist - Result ADR Center
for Businesses Neutral & IMI Certified
Mediator.
Trainer and negotiation consultant at TOOLKIT
COMPANY, adjunct professor at UTRECHT
UNIVERSITY, President of ACB Foundation & CoChair of the International Committee of the
Dispute Resolution Section of the American Bar
Association (ABA).
Author of Toolkit Generating Outcomes.
RIAD -
International
Association of Legal
Protection Insurance
Conference
30 September 2011 - Verona
[email protected]
ACBFOUNDATION
CONFLICT MANAGEMENT
RESEARCH CENTER
Mediation –
an answer to
consumers
needs?
+
Why Mediation?
2
2 Answer, based on more
than a decade of experience
mediating commercial disputes:
n Generates
n Saves
n
better, more sustainable outcomes
time and often money
Due to Outcome control and Process control of parties
Backed up by research (e.g. AAA: Dispute Wise Companies have better P/E ration
- Cornell/PERC/PWC: 83% would use mediation again due to cost and outcome
control, expedition and relationship – confirmed in ACB survey)
© Manon Schonewille – TOOLKIT Company, all rights reserved - toolkitcompany.com
The costs of litigation (time and money)
3
Based on the World bank “doing business” scenario
local legal experts made an assessment:
n Goods
worth € 200.000,- sold to Buyer who refuses to pay
and due to goods allegedly being of inadequate quality.
n Seller
sues Buyer in Court of capital city.
n Witness/independent
n Judgment100%
n Seller
assets.
Project
funded
© Manon
–
by theSchonewille
EU
experts give opinion on quality of goods.
in favor of Seller. No appeal.
collects money through public sale of Buyer’s moveable
Implemented by
European
ADR Center – Member of
Company
JAMS International
TOOLKIT Company, all rights reserved - toolkitcompany.com Lawyers
In association with
Association
European Association
of Craft, Small and Medium-Sized
Enterprises
Source: The Cost of Non
ADR – Surveying & Showing the
Actual Costs of Intra-Community
Commercial Litigation
3
Time and cost of domestic litigation
• ¾ – < 4 yrs
in proceedings
• € 6,7K –
€ 65,7K
costs
4
• Claim value
€ 200,000
• No appeal
• “ Positive”
scenario:
Source: The Cost of Non ADR – Surveying & Showing
the Actual Costs of Intra-Community Commercial Litigation ADR Center Italy – Member JAMS International
Costs of
not using mediation before court
(2 step procedure)
Time: + 224 days on average
Cost: + 32% of legal cost
(€12.471 – €13.738 per case)
5
Source: The Cost of Non ADR – Surveying
& Showing the Actual Costs of Intra-Community
Commercial Litigation – chart of ADR Center
Based on Meditioan success rate from 60%-75%
Time and Cost: break-‐even point in EU Time Savings (days) 500 Time Savings 400 300 200 19% of Success Rate Time Saving 100 0 90% 75% 50% 40% 25% -‐100 Success Rate of Media8on 19.5% 9% € 8,000.00 Cost Savings Cost Savings € 6,000.00 24% of Success Rate Cost Saving € 4,000.00 8% € 2,000.00 € 0.00 90% 75% 50% 45% 44.5% 43% 40% 25% 23% -‐€ 2,000.00 Success Rate of Media8on -‐€ 4,000.00 www.adrcenter.com
3% 2% Slide used with permission
①
②
③
④
⑤
⑥
⑦
⑧
⑨
⑩
11
Mandatory
①
“Public” ADR
Rigid procedure
Mediator accreditation standard
through public regulation
(Some) Sanctions
(Some) Public incentives
Structure & form mediation bodies
determined by public policy or law
Proposals exchanged may be
relevant in subsequent proceedings
Mediator fees are fixed
(generally moderate)
Mediator has to be a lawyer (or
University graduate)
Outside counsel presence obligatory
Mediated settlement = enforceable
title
②
③
④
⑤
⑥
⑦
⑧
⑨
⑩
11
Voluntary
“Private” ADR
7
Flexible procedure (mutual
agreement, parties/mediator)
Mediator accreditation standard
set by market
No sanctions for refusal to mediate
Individual motivation
Mediation providers with several
legal forms, can be an individual
Proposals exchanged in mediation
irrelevant in subsequent
proceedings
Mediator fees freely contracted
(can be high)
Mediator can have various
backgrounds
Outside counsel presence not
necessary
Mediated settlement = contract
“Irreconcilable” Issues in regulating Mediation. 2 basic approaches
8
Aim of the Directive
2008/52/EC
n To
promote the use
of mediation the
Directive provides a
predictable legal
framework to
facilitate access to
cross-border dispute
resolution.
n Had
to be
implemented by
Member States by
21 May 2011.
8
Mediation “defined”
9
9 The Directive 2008/52/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil
and commercial matters, published on the Official Journal of the European
Union L. 136/3 on May 24, 2008
“… a structured
process, however named or
referred to, whereby two or more parties to a dispute
attempt by themselves, on a voluntary basis, to reach
an agreement on the settlement of their dispute with
the assistance of a mediator”.
Mediator “defined”
10 10
The Directive 2008/52/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil
and commercial matters, published on the Official Journal of the European
Union L. 136/3 on May 24, 2008
“‘Mediator’ means
any third
person who is asked to
conduct
a
mediation
in an effective, impartial and competent way,
regardless of the denomination or profession of that
third person in the Member State concerned and of the way
in which the third person has been appointed or requested
to conduct the mediation.”
MEDIATION REGULATION IN EU: IT’S LIKE
PLUGS & PHONE SOCKETS …
11 used with permission
Slide
© Jeremy Lack 2011. All rights reserved.
www.jeremylack.com
Mediation regulation in EU: It’s like plugs & phone sockets …
12
Some regulatory highlights
(definitely not complete and from a Dutch perspective)
•
Austria: Breach of confidentiality can be
punished with up to 6 months imprisonment or
financial penalty.
•
Greece: Domestic cases only lawyers can be
accredited mediators. All mediations require
presence of a lawyer. Mediation providers
formed by Bar Association and Chamber of
Commerce.
•
Netherlands: No legislation, but Specialized
Disciplinary Court for Mediators. Demanding
performance based assessment & theory
exam. Legal mediation aid.
•
Italy: All mediators accredited by Italian
accredited provider and gone through
training of Italian accredited institute.
Mandatory mediation: for many disputes
mediation = precondition for accessing courts.
Court mandated mediation with financial
consequences—costs and fees—if refused.
Tax incentives.
Phone sockets based on a slide from Jeremy Lack © 2011
+
Mediation concepts in Europe:
What is mediation?
Continental European vs. Anglo-Saxon style?
Northern European vs. Southern European style?
Caucus (only) or joint session?
Directive or facilitative on process? (Time) Pressure?
Evaluative or facilitative on substance?
13
Different national approaches reflect different cultures
UK/US = Efficiency
•Time pressure
•Emphasis on an outcome
•Much caucusing (emotions?)
AT (& DE) = Perfectionism
•Whatever time it takes
•2 neutrals
•No caucusing
•Emphasis on process
=?
FR = Conceptualism
•4 steps
•Confidential
•Little other emphasis
NL = Pragmatism
•4 half days on ave.
•Caucusing = one of the tools
•Process + outcome + cheap
Which system to
choose for a crossborder dispute?
14 used with permission
Slide
© Jeremy Lack 2011. All rights reserved.
www.jeremylack.com
n+
75% success/settlement
rate
(70% mandatory – 80% voluntary)
Source: The Cost of Non ADR – Surveying
n
0,5% use
15
(# Mediation / cases filed in court)
Paradox of Mediation in EU
& Showing the Actual Costs of Intra-Community
© Litigation
Manon Schonewille – TOOLKIT Company, all rights reserved - toolkitcompany.com
Commercial
Why is commercial mediation little in demand 1?
nIs
it practiced poorly?
Need for better education of mediators?
nHave
mediation centers / countries not
adopted effective rules or codes of conduct?
nNeed
for more uniformity?
16
Why is commercial mediation little in demand 2?
17
n Companies
have poor understanding of the
mediation process or mediation as a
management tool (and are not really interested
to learn)
50% success rate?
77% NO ADR policy
7% no idea
Sources: The Cost of Non ADR – Surveying & Showing the
Actual Costs of Intra-Community Commercial Litigation
Making profit while solving disputes – ACB survey
Chicken or egg??
18
Companies legal expenses insurance policies do not
cover mediation/arbitration as a rule:
Source: The Cost of Non ADR – Surveying & Showing the Actual Costs of Intra-Community
Commercial Litigation
Why is commercial mediation little in demand?
19
ACB: NL € 3 billion p.a.
CEDR-CMS: UK £ 33 billion p.a.
>3 years managers time/case
EU/ADR Center: + 224 days + 32% legal
costs/case
n Companies
have no clue about (financial) benefits - costs
Sources: The Cost of Non ADR –
Surveying & Showing the Actual Costs of IntraCommunity Commercial Litigation - Making profit
while solving disputes – ACB survey © Manon Schonewille – TOOLKIT Company, all rights reserved - toolkitcompany.com
Managers and Conflict– CEDR/CMS survey
n Managers
do not (care to effectively) manage conflict
63% of managers say
they do not feel equipped
to deal with conflict
35% parachute jump,
27% shave head
rather than address
problems in team
Sources: Managers and Conflict– CEDR/CMS survey
Making profit while solving disputes – ACB survey
20
Gate keeper position of lawyers
who have impediments
21
21
common denominator for all impediments:
nUnfamiliarity with the process and its practical implications and
use, combined with fear to lose business.
n
The
Source: Making profit while solving disputes – ACB survey
+ ADR impediments for lawyers
Alarming Drop in
Revenues.
Process and its implications unfamiliar.
n Uncertainty about role in ADR, afraid to
n
ADR can mean
n
n
n
Scared to lose the client because of ‘having given a
wrong advice’ in case the mediation
n
Fear the mediation may go on forever and will cause
additional costs and time.
Difficult to hand over process to
third party whose added value is unclear.
n
n
n
Mediation (and especially referral) can be perceived
n
as
/sign
lawyer does not do good job.
Lawyers tried to negotiate themselves without result
lose client
quality mediator.
If referral: sometimes feeling that the judge
‘doesn’t want to deal’ with this case.
confidentiality mediation is
too strict (f.e. contributing incriminating
Concerned
n
admission of weakness
added value of 3rd
party unclear.
Mediation generally ok, but not in this
case/ these parties.
and
Apprehension to
to lawyermediator (still: lawyers generally engage lawyermediators )
Uncertainty about
use”of mediation (obtain information),
information in mediation to block use during
subsequent legal procedure).
does not lead to a solution.
n
strategic
Anxious about possible“
uncertainty re. lack of right of refusal to testify
of mediator and other confidentiality issues.
n
make mistakes.
22
n
Source: Making profit while solving disputes – ACB survey
nHabit
n Mind
23
set changes take time
Do we need a fax
machine? mid 1970’s
Should Doctors wash their
hands before seeing the next
patient to reduce mortality
rates? mid 1850’s
Is the earth round?! End 1490’s
What do insurers do? Some examples…
n
Around the world many (legal protection) insurers
are actively involved in mediation:
n Mediation
n In
to maintain relationships and as a PR
tool
house trained mediators
n Strategic
n
24
use of ADR within the Claims Organization
Contracts with mediation providers and/or referral of cases on a
regular base
n Active
involvement in further developing the field
What do insurers do? Some examples…
n Message
for RIAD conference attandees of
25
Deborah
Massucci VP Dispute Resolution in the Litigation Management
Division of Chartis, Chair of the ABA DR Section:
ABA Section of Dispute Resolution strongly supports early
DR and the strategic use of all ADR tools. The Section is the primary
“The
place where dispute resolvers throughout the world collaborate and share
experiences, successes, and initiatives to use dispute resolution tools effectively. The
Section is the center of sharing to support resolvers who enter the field, want to
broaden their skills, and move up in their career. We build bridges to clients whether
they are lawyers, insurers, corporations, or individuals. We support mediation quality
by providing ethical guidance, providing educational opportunities and publishing
books or periodicals for the benefit of our members and the ADR community at large.
We celebrate the public service and pro bono efforts of dispute resolvers and we
welcome anyone interested to join in the work of the Section.”
What can legal Protection insurers do? Some ideas …
26
n
In-house training for referral to mediation and mediation techniques.
n
Legal expenses insurance policies cover mediation (arbitration) as a rule.
n
Clients adding a mediation clause to their contracts or who adopt
corporate ADR policies pay a lower premium.
n
Clients who tried to mediate in good faith get priority treatment when
the mediation fails and they are forced to litigate as a next step.
n
Clients who litigate pay a higher own contribution, clients who try to
mediateas a first step pay a lower own contribution.
n
Insurers adopt a corporate or industry sector policy: mediation is the
preferred method.
n
Clients are obliged to try to initiate mediation before they can litigate.
A flexible voluntary process, but with
mandatory commitment to use as the
obvious first step
27
QUESTIONS?
Thank you!
Sources for more information 1
n The
studies mentioned in this presentation:
(pdf and weblinks can be found in the resource center section of
www.toolkitcompany.com
www.toolkitcompany.com/Resources%20Center/Resources%20home.htm)
n
The Cost of Non ADR – Surveying & Showing the Actual Costs of IntraCommunity Commercial Litigation: ADR Center Italy, member of JAMS
International:
www.adrcenter.com/jamsinternational/civil-justice/Survey_Data_Report.pdf
n
Managers and Conflict– CEDR/CMS survey:
www.cedr.com/?location=/news/archive/20060526_232.htm
n
Making profit while solving disputes – ACB survey (in Dutch only):
www.acbmediation.nl/research%20projects/Research%20projects.html
28
Sources for more information 2
29
n
Mediation rules, clauses, cross-border Dispute Resolution:
JAMS International www.jamsadr.com/international/
n
Mediator certification and tools: International Mediation Institute:
http://imimediation.org
n
Commercial mediator Assessments and information for the
private sector. Free online video ‘Special Chemistry’
demonstrating a commercial cross border ADR and
representing clients in mediation: ACB Foundation
ACBFOUNDATION
CONFLICT MANAGEMENT
RESEARCH CENTER
www.acbmediation.nl/Learnership/Learnership%20home.html
n
Mediation, conflict management, negotiation and decision analysis trainings:
www.toolkitocmpany.com - [email protected]
n
Neuroawareness: knowledge & insights into how recent discoveries
in neurobiology may assist professionals in gaining a better
understanding of their roles in ADR processes.
www.neuroawareness.com
n
Mediation and negotiation techniques:
Toolkit Generating Outcomes, Manon Schonewille,
The Hague 2009: Sdu.

Manon Schonewille - International Association of Legal Expenses

Transcrição

Documentos relacionados

Produkte und Leistungen: NEWCON GmbH

B E R L I N / E V E N T S The Begum wants to help estranged

GENERAL INFORMATION FOR ROOM SEEKERS •

legal regime of real estate mediation

Introduction to Women and Work: Current RMIT University Research

Manual - ZFD Ziviler Friedensdienst

Cross-border Family Mediation

Quarterly Portfolio Disclosure

The Mediation of the Brazilian V-for

May/24 • Friday • 11:00 am to 12:30 pm

NEWSLETTER

Lord Neuberger gives the inaugural Harbour

Transcription and Translation of Annuae 1626

Anna E. Indahl - Modrall Sperling

Global Geoportal for Remote Sensing Images Centers