EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes
Global Trends in Dispute Resolution Series, Volume Number 9
EU Cross-Border Commercial Mediation is a book which focuses on the European Union’s (EU’s) continued efforts to encourage the use of cross-border mediation and examines why such efforts have had a limited impact. It does so by drawing on rare, and at times surprising, detailed insights from the in-house counsel of multinational companies regarding their use of EU cross-border commercial mediation. By viewing mediation through the disputants’ perspective, new and important findings regarding why disputants do, and do not, use cross-border mediation have emerged. While these findings are of primary relevance to EU policy and practice, they have implications far beyond the EU context at a time of increasing international interest in cross-border mediation.
What’s in this book:
This book examines the EU’s continued initiatives to foster the use of cross-border mediation, including its review of the EU Directive on Mediation. Against this legislative backdrop, the book then rigorously analyses insights provided by the in-house counsel participants in the research conducted for this book. This analysis reveals, for example:
- the prominent role played by negotiation as a cross-border dispute resolution process;
- that negotiation is a key comparator for disputants when considering whether to use mediation;
- how the EU’s continued focus on understanding and presenting mediation as an alternative to litigation has resulted in measures which are insufficient to address fully the barriers to the use of mediation;
- intriguing barriers to the use of mediation which arise from the association which disputants draw between mediation and negotiation;
- how the relationship which disputants draw between mediation and negotiation paradoxically raises both opportunities for, and obstacles to, the increased use of mediation; and
- what disputants need to increase their use of cross-border mediation.
The qualitative nature (by way of interviews) of the research conducted for this book has enabled the identification of nuanced and novel findings regarding mediation’s position and potential in cross-border dispute resolution. These findings, together with a detailed examination of the EU Directive on Mediation and the EU’s continued initiatives to foster the use of mediation, form the basis upon which this book’s recommendations are built.
How this will help you:
Changing the frame to view the use of mediation through the lens of the disputants, as this book does, provides the opportunity for the EU to promote cross-border mediation in a way which resonates with disputants and responds more fully to their concerns and needs. This thoughtful and thought-provoking book will be of interest not only to European and national bodies seeking to promote the use of mediation but also to dispute resolution academics, in-house counsel, and of course mediators and dispute resolution practitioners.
|Product Line||Kluwer Law International|
About the Author
List of Abbreviations
List of Figures
List of Tables
Overview of the Book
The EU’s Efforts to Promote Cross-Border Mediation
Literature on Cross-Border Mediation
Key Information on Interviewees and their Companies
The Overlooked Role of Negotiation as a Cross-Border Commercial Dispute Resolution Process
Why Parties Use Mediation for their EU Cross-Border Commercial Disputes
Why Parties Do Not Use Mediation for their EU Cross-Border Commercial Disputes
Changing the Frame; Framing the Changes
Information Sent to Interviewees Before the Interviews
Table of Cases
Table of Legislation
See what our clients are saying:
Empirical research on international mediation is at a nascent stage, and it is here that Anna Howard’s research offers a significant contribution to the international literature. This is a thoughtful and thought-provoking work that will be of equal interest to scholars and practitioners. Anna Howard is a bold new voice in dispute resolution.
Nadja Alexander, Professor of Law at Singapore Management University, Multi-Award Winning Author, Mediation Specialist.
This is an important contribution to the literature about the practice and promotion of mediation. It deserves a wide readership among academics and practitioners alike. While focused on commercial mediation in the context of cross-border disputes in the EU, the book poses a number of fundamental questions for all those who have wondered about the low uptake of mediation as a process for resolving disputes. Anna Howard’s meticulous research, both deep and broad, invites us to consider new angles to this conundrum, particularly from the perspective of those who would actually choose to use mediation. For me, it provided several light bulb moments. For many of us, it suggests that we may have been approaching the promotion of mediation in quite the wrong way.
John Sturrock QC, Founder and Senior Mediator, Core Solutions
Anna Howard’s contribution to the mediation debate is timely, incisive and important. Timely, because in many parts of Europe mediation is still struggling to gain widespread traction in practice. Incisive, because Dr Howard challenges some all too common assumptions about mediation policy, and does so on the back of serious qualitative research rather than the many anecdotes and “war stories” which too often plague mediation. And important, because even a cursory glance at the commercial and wider world will tell you that there are many conflicts in need of constructive and effective resolution. I commend this book.
Bill Marsh, International Mediator
Dr Howard concludes from her research that if mediators and legislators wish to persuade users to mediate, they need to change the frame, and frame the changes. The final chapter sets out a series of practical recommendations for inspiring users to mediate based on the results of her research. I have an in-house counsel perspective (though I was not one of the interviewees) and the recommendations make absolute sense. And, very correctly, the book ends with a call for further such empirical research. Malcolm Forbes said that the best vision is insight. This book provides new insights and a new vision.
Michael Leathes, Former corporate in-house counsel, Author: Negotiation: Things Corporate Counsel Need to Know but Were Not Taught (2017)
This book is a very important piece of academic work. It is well researched and located in its field. It is very well written. The work is very well informed, nuanced and the arguments throughout well articulated. Anna Howard’s findings have the potential to be very influential in helping expedite mediation in the EU cross-border field but equally may hold resonance in other fields.
Bryan Clark, Professor of Law and Civil Justice, Newcastle University Law School, United Kingdom
Dr. Howard’s publication is a thought-leading text for those of us engaged in teaching and practising in the dispute resolution field. Drawing on her PhD studies at the Centre for Commercial Law Studies, Queen Mary University of London, the work is remarkably ambitious. Although ostensibly focussed on mediation in EU cross-border disputes, it draws on rigorous empirical research, relevant wherever commercial mediation lives.‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’ is the provocative opening quote from an in-house counsel interviewee. It is the perfect introduction to a text which, by listening to informed and experienced disputants, identifies and explores the challenges of why mediation has not been the success story we all assumed it would be. Her research supports the dismissal of, to borrow the words of one of the interviewees, the ‘enforceability myth’ – that the challenge of enforceability of mediated outcomes plays a significant role in discouraging lawyers and parties from choosing mediation – and moves to an identification and analysis of the real inhibitors. The text provides very helpful analysis of what has happened and why, culminating in a carefully developed set of recommendations. Here we are introduced to the real impact of ‘Changing the Frame; Framing the Changes’ - recommendations for how we can promote the take-up of mediation more organically. The recommendations advocate moving from the ‘alternative’ space, where mediation is firmly categorised as an alternative to litigation, to a space offering a continuum of processes. Here parties have access to a range of processes which are complementary and overlapping and have a constructive connectedness. This move brings negotiation firmly back into the frame – a valuable process often overlooked in dispute resolution research – and, on the continuum, positions mediation as ‘assisted and extended negotiation’. The result is a reimagining of mediation and where it fits in the dispute resolution repertoire. We are encouraged to adopt an iterative process, situation-specific and responsive to the parties’ interactions and to the clarification of their interests. Thus we are cleverly liberated from the current ‘either/or’ dilemma promoted by the persistent labelling of mediation as an ‘alternative’ process. This is a text I will be proud to have on my shelf and in which I know I will find continuing value.
Dr Rosemary Howell, Professorial Visiting Fellow, University of New South Wales, Australia
Most mediators, and those who teach and train in mediation, will have a familiar mantra about the advantages of mediation - time and cost saving, greater participant autonomy, avoidance of the burdens of litigation and so on. These are, as it were, part of the "origin stories" of mediation. As Anna Howard's excellent and articulate book demonstrates, such origin stories are typically only a part of the reasons, and not necessarily the real reasons, why people may choose - or choose to avoid - mediation. Drawing on original and qualitative empirical research, Dr Howard provides - for this reader at least - two vital insights: first, rather than framing mediation in terms of what parties can avoid (litigation) there is more to be gained in seeing it as an extension of negotiations that the parties are likely already to have begun; and, second, in framing mediation in this constructive way, steering clear of the familiar anti-litigation rhetoric, it becomes clearer as to what mediation asks of and offers to disputants. This book continues, and contributes to, the several decades of thinking underpinning the mediation "movement" and access to justice, with particular attention given to cross-border commercial mediation; and in doing so, adopts a core mediator's tool - that of "framing" - to reorient our thinking towards enabling participants rather than focussing on what mediation helps them to avoid. Continuing the original spirit of mediation, Dr Howard's work is a welcome contribution to the constructive role of mediation.
Ian Macduff, Teaching Fellow and Director, NZ Centre for ICT Law, University of Auckland