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EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by HOWARD

EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes

By Anna Howard
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Overview

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.

 

Disclaimer: This title is in pre-production and any names, credits or associations are subject to change. The current table of contents and subject matter is for pre-release sample purposes only.

Last Updated 01/12/2021
Product Line Kluwer Law International
ISBN 9789403517537
SKU 10080815-0001
Table of Contents

About the Author

Foreword

List of Abbreviations

List of Figures

List of Tables

Acknowledgements

CHAPTER 1
Overview of the Book

CHAPTER 2
The EU’s Efforts to Promote Cross-Border Mediation

CHAPTER 3
Literature on Cross-Border Mediation

CHAPTER 4
Methodology

CHAPTER 5
Key Information on Interviewees and their Companies

CHAPTER 6
The Overlooked Role of Negotiation as a Cross-Border Commercial Dispute Resolution Process

CHAPTER 7
Why Parties Use Mediation for their EU Cross-Border Commercial Disputes

CHAPTER 8
Why Parties Do Not Use Mediation for their EU Cross-Border Commercial Disputes

CHAPTER 9
Changing the Frame; Framing the Changes

Appendices

APPENDIX 1
Information Sent to Interviewees Before the Interviews

APPENDIX 2
Interview Guide

Bibliography

Table of Cases

Table of Legislation

Index

Testimonials

See what our clients are saying:

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

 

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 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

 

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

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