March 29, 1996, Geneva, Switzerland
by Robert Badinter ,
Court of Conciliation and Arbitration of the Organization for Security and Cooperation in Europe (OSCE)
Many a pitfall awaits the guest who is entrusted with the apparent honor--and the very real risk--of opening a Conference such as this one.
First he has the most gratifying part of his job, namely that of saluting the happy initiative which resulted in the meeting being held, and to congratulate those whose initiative it was. In this case it is you, François Curchod, Deputy Director General of WIPO, you, Francis Gurry, who with skill and friendliness in equal measure direct the WIPO Arbitration Center, and those around you. Thanks should then go to the report writers, whose academic and professional reputation assures the Conference of a high profile. We address our greetings to the distinguished persons present, who bear witness to the importance of the event, and finally we bid welcome to the audience and all the participants, whose number is a testimony to the interest shown in our work.
This "introduction to the Introduction," while a convivial and agreeable exercise for the introducer, does come with a certain secret anxiety: is there not someone whom I have omitted to mention? Should I already have commended the interpreters for their work, without which we have no assurance of understanding each other? The hostesses who were there to receive us with such kindness? Finally, hoping that he has not forgotten anyone, the person who opens the proceedings comes up against the real difficulty, namely to speak on the subject of those proceedings, and to risk allowing his personal anecdotes to take up too much of his speech, which Winston Churchill looked upon as the hallmark of an aging celebrity.
I shall begin with a confession, namely that for my part I am a firm advocate of mediation, the well-known merits of which are trumpeted by the zealots. Mediation is in the first row of the choice of solutions for the settlement of disputes, better known as alternative dispute resolution or ADR. It avoids the formal requirements of judicial or arbitral proceedings, and obviates the frequently high cost of lawyers fees and trial costs. It spares us the often virulent confrontations in hearings, which are liable to cause lasting bitterness between the parties. It ensures that all exchanges remain confidential. But above all it allows the parties, under the guidance of one or more mediators, to work on the solution of the conflict themselves, as they would in negotiation, but better than in negotiation. For it is the involvement of the mediator that avoids the frontal encounters of parties fighting tooth and nail for their claims and suspicious of any proposals from the other side. By dispelling--with difficulty--the distrust that often blocks negotiation, by suggesting different approaches, even by making actual proposals, the mediator can break the deadlock. He is by turns, or at once, the expert, the diplomat, the lawyer and sometimes the psychoanalyst. One thing he is always, however, and that is tireless, courteous and imaginative.
Perhaps it is due to this admirable role model that we are assured of never being short of mediators. Reconciling adversaries, bringing concord where once there was confrontation and being in this way the messenger and the maker of peace, whether in family, social, economic or even international disputes, such a role is undoubtedly pleasing for the one who carries it out. It is a testimony to the moral credit that is accorded him and to the reliance placed on his talents and personality. Whether in a district council, a company, a professional association or an international body, every mediator derives the same inner satisfaction from being called upon to settle a dispute, and every one of them can, at his own level, identify with former President Jimmy Carter.
There are no doubt many in this room who have recognized themselves in this profile of the perfect mediator. My account of mediation would be a meager one, however, if I confine myself to celebrating, as many others have before me, the benefits of mediation and the virtues of mediators. The present evolutionary state of mediation does indeed seem to pose a double-headed question: what is the meaning, in our post-modern society, of the growing recourse to mediation? What are the areas into which, in particular, it should expand?
To deal first with the meaning implicit in to the present growth in mediation, it seems to me to derive primarily from hyper-regulation in our society. I shall not enlarge here on the oft-made analyses of the flood of constitutional, international, legislative, regulatory and customary norms that are symptomatic of our time. Modern society is a compulsive producer of rights and obligations of all kinds, at all levels and in all areas. This proliferation of legal precepts has been paralleled by the disappearance from our society of a factor that inhibits the development of disputes, namely the existence of a social or family hierarchy that used to hold contestation in check through the exercise of recognized authority, whether religious, parental, social, political or economic. Such a hierarchy moreover produced legitimate conciliators or judges for communities which traditionally were subservient to them. The justice of the Qadi, so dear to Max Weber, was also a social focus for mediation, as was that of the rabbi in traditional Jewish communities or that of the Dutch, or English, Justices of the Peace of whom the Enlightenment philosophers thought so highly.
The increase in the number of norms, in the number of disputes in highly conflict-prone societies, with everyone intent on asserting his subjective rights, and the ever more drastic erosion of social bonds were bound to cause an explosion of legal business in western democracies. The figures are too well known for me to remind you of them here. One likes to make distinctions between theocratic, monarchic, aristocratic and democratic societies. What we have now entered is the age of the legal society. Law, with a capital L, has evolved from a means of regulation to become one of the cornerstones of our society. A distinguished American lawyer once said, not without irony, that our contemporary faith in Law, as a prime factor of social organization, would no doubt, a few centuries hence, seem as strange to generations brought up on cybernetic disciplines as the religious conception of the world prevalent in medieval society does to us now. The age of the cleric has given way to the age of the lawyer, with the American sense of the word being equally applicable in Europe because the United States of America does after all, in this field as in others, offer at least the most striking illustration, if not actually a model, of a society pervaded by law.
Now, faced with the conflicts of this law-ridden society, justice, whether that of the law courts or that of the arbitration tribunals, cannot provide the solutions expected of it. Inasmuch as all litigation is a form of social distemper, the remedy should be as prompt, as simple and as accessible as possible. However, exactly the opposite is the case: justice in our societies is slow, complex and often costly, even though our democracies have developed systems of legal and judicial assistance. In all our States, justice is in the throes of a structural crisis: the demand for it is growing incessantly, and faster than the means of administering it. Indeed, private arbitration has done exactly the same thing. Arbitral justice is tending to become ever more formal, slower and more costly. This essential complement to the justice of the State cannot cure such deficiencies, which accounts for the inevitable and indeed growing recourse to alternative methods for the solution of conflicts, namely conciliation and mediation.
Their present progress is attributable to the lack of jurisdictional bodies at the national and the international level for the settlement of all the conflicts of modern society. At the same time there is a growing realization that judicial proceedings are not necessarily the most appropriate way of solving disputes in our societies. This is particularly true of "micro-conflicts" between individuals, such as family disputes, disputes between neighbors or in labor or community relations, even disputes between partners or associates. The judicial machine is too cumbersome, too costly and also too formal--one is tempted to say inhuman--to deal with this problem. What the parties need is not so much a judge to lay down the law as a wise person who will make them see reason. Because, over and above the dispute itself, they have to contend with a requirement that justice has great difficulty in accommodating, namely the need to go on living and working together in the same family, the same district, the same company or the same association. Justice often makes a rift out of what was no more than a crisis, a crisis that has to be settled for existing relations to be preserved. And this applies just as much in business relations between associates or contracting parties. Not every conflict should end up in divorce. And there is no procedure that can meet the twofold requirement of settling the dispute and preserving the future of existing relations better than mediation.
This brings me to my final comment. The last-mentioned consideration led me to work on the incorporation in the international legal order, by the Stockholm Convention of December 12, 1992, which was signed by 34 States and has been ratified by 15 so far, of the OSCE Court of Conciliation and Arbitration. Having done a great deal of work on the development of the rule of law in the new democracies of central and eastern Europe, and having judged the intensity of national feeling, I had come to the conclusion that, if we were to avoid a return to the conflict-ridden relations of central and eastern Europe that had prevailed before the First World War, we would have to create a European forum in which problems of all kinds--minority rights, environment, movement of persons, access to energy sources--could be settled by compulsory recourse to mediation at the request of one of the member States of the OSCE, and optional recourse to arbitration by common consent between the parties. The headquarters of the Court has been located in Geneva where, by courtesy of the Federal and Cantonal authorities, we have a beautiful building at our disposal. The rules of procedure are in the process of being adopted, and we shall be operational as from the fall of 1996.
But now I myself am failing to heed Churchills warning and allowing my introduction to become confused, perhaps not with my anecdotes, but at least with my personal concerns. So let this brief outline be simply an expression of my faith in the virtues of mediation. There is no institutional framework that lends itself better to this than that of WIPO. I wish to thank it for its hospitality, and I wish you a good Symposium