March 29, 1996, Geneva, Switzerland
Discussion
The Dynamic of Mediation: Is Creative Genius the Key to Successful Mediation?
and
Some Aspects of Mediating Intellectual Property Disputes
Ikbal Al Fallouji (Geneva, Switzerland)
Mr. Chairman, if you intended to warm the atmosphere here and to stimulate us, you have succeeded perfectly. You have been a true stimulant, an excellent point of departure for this Conference. I was very touched also to hear one of our colleagues speaking of camels. Indeed, it is a brilliant way to think also of problems of inter-cultural cooperation, although the camel could be a Rolls Royce with the difference that this poor lady would not have been able to find the solution with the Rolls Royce. Mr. Chairman, here are some quick reactions.
I believe personally that the key is, above all, confidence. But how is confidence gained? That is the most difficult task of a mediator, who must, absolutely, not only place himself or herself in the position of the two parties, but also convince the two parties that each should place itself in the position of the other. And how can the mediator succeed in convincing everyone, the two parties, that they are in fact victorious? That is the fine victory of the mediator--to show everyone that the two parties are victorious, and that cannot be done without a compromise, without a mutually accepted concession.
I would have liked to hear something on the role of institutions in relation to the task of the mediator, but I am sure that this question will be evoked later. I think that the strength of the mediator is to have the greatness of humility, to know how to be unobtrusive, to reappear, to be present, to show in fact that the solution lies with others and to know how to play well the role of the unknown soldier. That is the true victory of a mediator. The mediator, as you have perfectly expressed it, is neither judge nor arbitrator, nor representative of any party, but he must transform himself into a truly neutral mediator. I should like to draw attention to the question of complicity between two representatives of two different parties, which becomes a true complementarity, even solidarity, in finding a good solution. This complicity is marvelous and at time salutary.
I shall finish with this conclusion and I should like to emphasize, and here I defend lawyers, that lawyers can be good mediators. They are not always prisoners of legalism. They are practitioners and diplomats, and can be psychologists and even psychiatrists.
Robert Badinter (Chairman)
Thank you, Mr. Al Fallouji, for those extremely interesting observations, which I think will stimulate discussion. Would one or other of the preceding speakers like to say something on the points evoked by Mr. Al Fallouji? For my part, I would simply make one remark concerning what you said, very correctly, about the question of confidence. You said that it was necessary that, at the end, each party feel as though it has won. You will permit me to balance this proposition a little; in certain cases, it is sufficient that a party has the feeling that the other has lost as much as it.
Stephen Goldberg (Chicago, United States of America)
I should like to say two things. First of all, it is very difficult to succeed in creating confidence in the mediator on the part of the parties. It is necessary to proceed in small steps. You must show the parties that you can keep confidences. You can demonstrate that you work for each side, that you are truly neutral and that you are trying to assist them. Secondly, how does one persuade each side that it has succeeded? It is sufficient perhaps to show to them that each has not lost, but, in addition, in my view, it is question of listening, understanding and, if one understands, finding in the things that each has said something that one can use as a means for resolving the conflict. In this way, one can say "there you are, it was your idea." In this respect, the mediator is like, as you have said, the unknown soldier who succeeds.
David Plant (New York, United States of America)
I have one short comment to make. I believe that one of the virtues of mediation is that neither party has to walk away thinking it gave up anything. Win/win is the virtue of mediation, not win/lose or lose/lose, which is often the result of litigation. The parties, if they are permitted to build their own solution, should each walk away thinking, I gained. That is the virtue of mediation.
Ndéné Ndiaye (Paris, France)
I am from the International Confederation of Societies of Authors and Composers (CISAC), a lawyer by training. I am not a specialist in either mediation or arbitration, but I am interested since our Organization is working towards the creation of such an institution. As a practicing lawyer I am more imbued with judicial procedures, and thus a little derailed by what I have just heard. Some clarifications are necessary for my proper understanding and for that of the Organization that I represent, which will certainly have many occasions to have recourse to either mediation or arbitration. I said that I was a little troubled in hearing the first two speakers. The first said that it was not necessary to be a genius, but simply to know how to listen, in order to find solutions, and the second spoke of the mediator in intellectual property, which is a complex branch of the law, which certainly has ramifications technologically, commercially and otherwise that are equally complex. The question that I pose is to know whether it is possible for a mediator in the field of intellectual property to be a mediator without being a specialist in intellectual property or, simply, without being a lawyer at all.
My second question comes from the influence to which I have been subject as a practicing lawyer, because I believe that, in spite of all, there is a certain influence that must enter into question and that one must take into account. Whether one comes from the Anglo-saxon or Latin legal tradition, I believe that, in conduct or even conception, there is an influence to be seen, but this is a question that we shall visit in the context of the role of the administering institution. My second question is to know, when speaking of confidentiality, how a mediation takes place in practice. Is it the case that, after having listened to the parties, one draws up a document, which is called a procès verbal or whatever, simply to register the declarations of the parties, whether to study them or to confront the parties with them, or does one simply listen to the parties and, at the end, propose a solution. I confess to being a little disoriented by the reconciliation of confidentiality with the existence of a dispute and by the practical management of that reconciliation.
Stephen Goldberg (Chicago, United States of America)
I shall try to reply to your first question. Is it necessary to be a specialist in the legal subject matter of intellectual property, or in any other area, to be a good mediator in that area? It is one of the questions that mediators very often discuss. There are two schools of sought. For my part, it is a question of technique as a mediator. There are two different approaches to mediation. There is mediation that is called evaluative, and to perform this, to discuss with each party the relative strength of its case, it is necessary to know the law in that area. There is another type of mediation where one is concerned much less with the rights of each party, but one conducts a search, and one often says to the parties here that a legal question can be discussed later if we are not successful in finding an agreement, despite your ideas and your rights and despite my ideas and my rights. If the mediation is conducted in this way, it is much less important to be a specialist in the relevant subject matter, since one is concerned much less with the rights of each than with the search for an agreement. So it depends on the style of mediation that one is conducting.
David Plant (New York, United States of America)
With regard to the second question, How does it work?, I do not think that it makes much difference whether you are from a common-law country or a civil-law country, as far as my understanding and my experience with the mediation process is concerned, as practiced generally in the Western world. Conciliation in the Asian world may be something different. There the neutral or the neutrals, when more than one, may tend more than a mediator in a common law or Western civil country to make a proposal to the parties to avoid the face-to-face confrontation that sometimes is considered difficult in the Asian part of the world.
In the Western world, the entire process is in confidence. The parties begin the process by understanding and agreeing that everything that is said will be used solely for the purpose of that negotiation and attempting to settle the case and for no other purpose. What is said in the mediation may not be used later in litigation. For example, sometimes agreements are entered into that all notes will be destroyed, and certainly most mediators do not keep the notes of mediations. Once the mediation is over, my file is empty. I do not want to be a party to a law suit later on and I should not be a witness. My notes should not be subpoenaed. For example, minutes are not taken other than to reduce any agreement to writing at the end of the mediation, and this should be done immediately, as I believe my illustration about the meeting in Buffalo confirms. As soon as the parties think they have an agreement, at least heads of agreement or an agreement in principle, should be reduced to writing and initialled by the parties. That is the only minute of the mediation, in my experience, that is taken. It is the parties process, they negotiate and the mediator is there to facilitate the negotiation.
Robert Badinter (Chairman)
Thank you, Mr. Plant. I believe that, in addition, Mr. Gurry will come back to the issue of confidentiality on this very important question.
Pierre Lalive (Geneva, Switzerland)
Mr. Chairman, my name is Pierre Lalive, a Professor and barrister in Geneva. You will not be astonished that I express a point of view influenced by the Swiss experience in the subject matter. This point of view is very much in favor of comparative law, which, for the moment, seems to me to be a little too absent from the discussion. I take as a starting point the accurate remark of Mr. Al Fallouji concerning lawyers. If I understood him correctly, he reacted to the extremely correct and interesting observations of Messrs. Goldberg and Plant, which, if I simplify a little, were to the effect that, in order to succeed in mediation, it was necessary to throw the lawyers out. Obviously it is a simplification that is perhaps a little excessive and I understand the reaction of Mr. Al Fallouji. But, I can say that I am totally in agreement with Mr. Plant when he says that the judge is used to imposing the solution, and that the lawyer--or more exactly, what is not the same thing, the litigator, and particularly the American litigator, with his aggressive style--is not, in his view, very qualified in general to act as mediator. He cited here the well known example of AMD v. Intel. and its procedures which last five or six years, where everyone fastened onto the litigation. This is well known, but must, I believe, be placed in the American perspective. And here, I should like to cite as a source an excellent American mediator, James Henry, whom you certainly know, who, in a conference organized some months ago in Brussels by the Institute for International Law and Business of the International Chamber of Commerce, made very rightly an effort in the direction of comparative law in saying that the extraordinary success and even fashion of ADR, Alternative Dispute Resolution, in the United States of America was due essentially to a very understandable reaction of business persons against the excesses of the American judicial system. He cited discovery, the aggression of litigators and, in parentheses, the word aggressive does not have the same sense in English, American and French, the costs of justice and the civil jury system. However, none of these characteristics is truly applicable in the European context, in any case in the continental European context. And one must not forget that one has obviously a tendency to generalize in this area. I should like to see the experience of comparative law and the experience of European continental law taken more into account. There are many other things to say, as it has been an extremely interesting beginning, but I should like to invite our Anglo-American speakers to make more of an effort in a comparative sense.
Robert Badinter (Chairman)
Thank you, Professor Lalive, for those very important observations on the different levels of hyper-legalization or hyper-jurisdictionalization of our societies, but the current, we know, is leading us all by greater or lesser degrees of rapidity. It is certainly a question to which we shall return when we come to speak of the recourse to mediation in Europe, in contrast to our two previous speakers.
Stephen Goldberg (Chicago, United States of America)
There is nothing to add, since the Professor is completely right. It is necessary to add the comparative experience. I agree.
Charles Korman (Paris, France)
I am a barrister in Paris. I have one preliminary remark. I think that, in fact, one has to be a little masochistic to participate as a barrister in this Conference, whose theme, it would seem from the explanations that have been given, is, in effect, that lawyers should find their place outside the door. This leads me more precisely to my question. I wonder what is the moment or the ideal moment for mediation. Listening to the different speakers, one could understand that mediation is the end of a process of very often crude fighting, which has led those involved to acknowledge failure, and I am prompted to ask whether one could conceive of writing a conciliation clause in a contract prior to any litigation, or is the nature of the process such that mediation is something that cannot be envisaged in advance in a contract? I am referring to the efficacy of the approach to mediation.
David Plant (New York, United States of America)
Perhaps the bulk of our examples had to do with disputes that had matured, whereas a mediation as a result of a pre-dispute clause may occur just at the very beginning of a dispute and in anticipation of a dispute. Its greatest benefit may be experienced at this stage, before a great deal of time and energy is expended on solidifying positions. We have taken to having dispute-resolution clauses that may have several phases in them. The first is good faith negotiation for a stated period of time, and then mediation for a stated period of time, and then, if that fails, arbitration. All before the positions have solidified.
Robert Badinter (Chairman)
Since the question seems to me to be particularly important, I should like to add an observation. I believe that it is necessary to distinguish, first of all, whether one envisages mediation which occurs through the intermediary of an administering institution. In this case, it seems to me desirable that there be a clause in a contract which foresees mediation administered by the institution, whether this institution or another. On the other hand, if it is not an administered mediation, I believe that the mediation cannot be useful except where it intervenes at the moment when negotiations have failed. If you inscribe mediation ab initio in a contract, you risk being unable to use mediation as the last resort after the failure of the ordinary process of negotiation between lawyers and before one decides to go before the competent judicial jurisdiction.
Jeremy Lack (Meylan Cedex, France)
My name is Jeremy Lack and I am here rather from the side of industry. I represent a company which specializes in medicine and in medical products. The interest that WIPO presents for my company is exactly to try to find the forum where one can try to resolve technology problems which are increasingly international and occurring in a very complex area of law where there are many possibilities to trip up or to make an error. The question that I should like to ask to the panel is the following. If one asks the lawyers to leave the room, one is still in a very complicated area. If it is left to the individual Chief Executive Officers of two companies, for example, to reach an agreement, the agreement may from the point of view of their businesses, be completely logical, but from the point of view of competition law be completely unacceptable. So I would ask the panel where and when the law should enter into this situation.
David Plant (New York, United States of America)
Mr. Lack and I go back quite a distance and he is baiting me now and I will have to retaliate with full, aggressive, American litigation force. I agree that, in some cases, lawyers must be present. The ultimate point that I am trying to make is that the aggressive litigant who continues to adhere to a legal position throughout the negotiation may do more damage than good. If that person can be replaced with an advisor or a counselor who is trying to bring the parties together, and who will take into account public interest, anti-trust and other issues while the negotiation proceeds, then that person ought to be there. I agree that two businessmen alone may get into more trouble than they realize.
Makkawi A. El Makkawi (Dubai, United Arab Emirates)
I am from Sudan, but operating in Dubai in the United Arab Emirates. I am an attorney-at-law. When we talk about mediation, a very long heritage and history from the part of the world that I come from comes straight to my mind. Mediation has been always a means of resolving disputes in tribal areas, and it has been the only workable method to solve disputes in those areas. In a more contemporary context, it is the very best means of solving disputes in labour disputes when the unions are in direct dispute with the government. Nothing can work other than mediation because, first, that kind of dispute is not only affecting the two parties, but it is affecting a wider group, which is the country itself, when there is going to be a strike or the unions want a rise in their wages and everybody is very tense. Despite this, a union can still go to court in a labour dispute, but that would take time. There are certain disputes which could go to court but disputes which are bleeding, which need immediate action, go to mediation. Disputes about the constitution, constitutional rights, these can go to court and it may drag on for a couple of years before it is solved.
The issue to me here is that, as much as we need people who could be good mediators, we need to teach when mediation is needed. The unions, for example, know that this is the best thing for them, to go to mediation, so that they can go back to work. The government needs and wants them to go back to work. In the tribes when people are suffering and everyone is feeling very bitter about deaths here and there, they feel that they want to solve it now. But who will tell the big businesses that this is their best choice. This is an area of education which we need to address also.
Stephen Goldberg (Chicago, United States of America)
It is interesting that you mention the source, the long-term source, of mediation in African tribal disputes, because some very influential American writing in the last 20 years began with studies of the use of mediation to resolve tribal disputes in Africa. So we are conscious of those origins and the importance of that source. In terms of educating big business to the virtues of mediation, I am totally in accord with you. It is very important to do so for one reason in addition to those that you have mentioned. I speak not of the people in this room, but there are some lawyers who see their professional livelihood as threatened by mediation, because mediation is often conducted with less legal involvement than is recourse to court. Often one must speak directly to the heads of the businesses rather than through their lawyers, and how do you do that?
There are two answers to that question. One is, as you say, education. Institutions such as WIPO, the Center for Public Resources in New York, and other institutions attempt to communicate directly with the heads of businesses. The other thing that helps enormously is that, as Professor Lalive mentioned, in the United States we suffer from hyper-litigation and businesses are looking for a way to spend less money. It is easy to persuade them when they see how much it costs to go to litigation. So partly, they will learn because they are profit-motivated, and partly we must concentrate on education.
Nilima M. Chandiramani (Bombay, India)
The success of mediation depends on the ingenuity of the mediator and the mediator should possess the skills which are enumerated in Professor Goldbergs paper. Now suppose the parties do find such a mediator. Will they not be deterred from appointing him because, under most of the mediation rules, if the mediation fails, such a person cannot be appointed as an arbitrator too. My second question is in relation to intellectual property rights and enforcement of the mediation settlement. If mediation does not result in an amicable settlement, there can be no enforcement. Now, could that not be the reason why parties are driven once again to lawyers. Mr Plant mentioned an example concerning electronic companies in the USA. The problem could have been settled by mediation, but the parties once again went to the lawyers to draw up the terms. So should we not think about the enforcement of the mediation settlement?
Robert Badinter (Chairman)
As to the first question, Madam, Mr. Gurry will address it in his speech.
David Plant (New York, United States of America)
The mediation settlement agreement is the same as any other contract. It may or may not be honoured and it may or may not have to be enforced in court. My experience is that mediation settlement agreements find their way into court no more often than any other agreement perhaps because of the spirit of the process that the parties have gone through to arrive at the agreement. At least for some reasonable period of time, they have worked together and cooperated.