The AOI Journal Issue 2 by AOIJOURNAL

THE OI JOURNAL I S S U E

THE SUMMER OF MEDIATION: SCOTLAND MUST NOT FALL BEHIND

2 0 2 1

STOP BEING CONFLICTED ABOUT CONFLICT: A KEY STEP TOWARD ORGANIZATIONAL GROWTH

CROSS-CULTURAL MEDIATION WITH AN OPEN MINDSET

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CONTENTS Message from the Deputy Director of AOI

The Summer of Mediation: Scotland must not fall behind

Cross-cultural Mediation with an open mindset

Stop Being Conflicted About Conflict: A Key Step Towards Organizational growth

The law according to a systemic orientation

Some things are worth waiting for – the golden age of ADR is at hand

Start at the Beginning: What Start-Up Agreements and Prenups have in Common

Is mediation the “human-centered” model for administering dispute

resolution in the world of conflict?

President of the AOI Journal: Rahim Shamji Executive Director, Designer & Editor: Kim Kortlepel

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MESSAGE FROM THE DEPUTY DIRECTOR OF

Dear Readers, On behalf of the global team at ADR ODR International, it is my pleasure to welcome you to the second issue of the AOI Journal. Following on from the first issue, this issue brings numerous articles on a variety of issues relating to ADR and ODR from around the world. Each contributor brought us new perspectives and thought provoking news and ideas! We are very grateful for all the contributions!

Dr. Zoe Giannopoulou

As AOI turns 5, I’d like to reflect on some of the landmarks for the company and the landscape of ADR and ODR. Since 2016, ADR ODR international is now in 40 countries spanning 5 continents.

This

expansion is underpinned by the notion that however global we become we must remain local, relevant to local cultural, language, economic and social challenges. The heart of what we do is consensual dispute resolution. From negotiation to mediation, from arbitration to adjudication, all of these processes are locally relevant. Since the pandemic in 2020, we have seen societies struggle to deal with the health and economic challenges. These challenges have thrown up much more conflict. Not just commercial and contractual disputes but family and workplace conflicts, managing the changes of the pandemic. Our focus is to support all communities in training to manage these conflicts as well as provide suitable neutrals to resolve these conflicts. We hope you enjoy reading the second issue of the AOI Journal and we welcome you to contribute your thoughts and ideas to future issues. Thank you! Zoe Giannopoulou

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THE SUMMER OF MEDIATION: SCOTLAND MUST NOT FALL BEHIND

BY: RACHAEL BICKNELL, SCOTLAND This summer has seen the momentum for mediation growth on a global scale, and shows

small claims. When compared to civil and

commercial mediation activity in Scotland, that

Scotland is falling far behind the rest of the world

figure is staggering.

when it comes to resolving differences and disputes.

As part of the Mediation Audit, CEDR produces a reliable assessment of the overall economic

For our economy to thrive, particularly in a post-

impact of the commercial mediation field in

pandemic world, an effective civil and commerical

England & Wales. It estimates that the value of

justice system is crucial. Now is the time for our

cases mediated each year is £17.5 billion; that £155

lawyers, mediators, policy makers and legislators

billion is the approximate total value of cases

to show innovative leadership to embed mediation

mediated since 1990; that mediation will save

and online dispute resolution into the civil and

businesses £4.6 billion this year; and that £40

commercial justice system in Scotland. A failure to

billion has been saved by the mediation profession

do so will arguably damage our economy and the

since 1990.

attraction of doing business in Scotland. June: Moving towards mediation as the default May: The economic case for mediation In

May,

the

Centre

for

Effective

means of dispute resolution Dispute

In June, the Civil Justice Council of England &

Resolution (CEDR) issued it’s Ninth Mediation

Wales issued its report on “Compulsory ADR”. The

Audit. The Mediation Audit has been conducted

report concluded that parties to a dispute can be

every two years since 2003, and tracks the growth

compelled to participate in dispute resolution

and success of commercial mediation, primarily in

processes including mediation, and that there are

England & Wales. Importantly, it excludes the

circumstances

statutory ACAS scheme for employment disputes

“desirable and effective”. Crucially, the report

and HM Court Service Small Claims Mediation

concluded “ADR can no longer be treated as

Service for disputes under £10,000. In the year to

external, separate, or indeed alternative to the

31 March 2020, it reported an estimated 16,500

court process”.

where

compulsion

could

cases were resolved by mediation in England & Wales. Based on estimated success rates, that

The vision behind the report was Sir Geoffrey Vos,

would mean around 20,000 civil and commercial

Master of the Rolls, the second most senior Judge

disputes were referred to mediation in England &

in England & Wales, and Chair of the Civil Justice

Wales that year – excluding ACAS mediations and

Council. In March he made a speech at the re-

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launch of the University of Hull Mediation Clinic

Singapore and around the world, for both

stating "almost every dispute has a sweet spot

domestic and international disputes.

when it is amenable to consensual resolution.” Following the release of the report he stated “ADR

In India, courts can refer disputes between parties

should no longer be viewed as “alternative” but as

to ADR (mediation, negotiation and conciliation)

an integral part of the dispute resolution process;

under section 89 of the Civil Procedure Code

that process should focus on “resolution” rather

(Amendment) Act, 1999. Reflecting upon India’s

than “dispute”. This report opens the door to a

experience of making mediation mainstream, Mr

significant shift towards earlier resolution.”

Justice N.V. Ramana spoke of the tradition of mediation, through “community based indigenous

The Civil Mediation Council called the report a

dispute resolution mechanisms”, as a conflict

“significant development” and hailed it as a step

resolution tool, which had been eroded by the

closer to its aim for “Automatic Referral to

establishment of “adversarial” British courts. He

Mediation” to be the default means of dispute

also spoke of the role of effective dispute

resolution in the civil justice system in England &

resolution

Wales.

confidence of investors and businesses, both

and

mediation

“to

increase

the

domestic and foreign” and expressed the need for July: From India to Singapore

an “omnibus” law to make mediation mandatory before a case comes to court, despite a number of

In July the Chief Justices of India and Singapore,

laws relating to commerce, industry and real

the Honourable Mr Justice N.V. Ramana of India,

estate already having provisions for compulsory

and the Honourable Chief Justice Sundaresh

pretrial mediation in India.

Menon of Singapore, shared the stage for the first time to deliver keynote addresses on mediation at

Singapore is well known as an international

the inaugural India-Singapore Mediation Summit

centre for mediation and for the Singapore

2021 “Making Mediation Mainstream: Reflections

Convention on Mediation which allows for the

from India and Singapore”. Their respective

cross

keynote addresses stressed the importance of

border

enforcement

mediated

settlements. Chief Justice Menon devoted much of

mediation as a tool of dispute resolution in India,

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his speech to the rise of online dispute resolution

There is still much to be done in Scotland to

as a solution to the growth of disputes caused by

increase the use of mediation in civil and

the Covid pandemic and the difficulties of

commercial disputes and to catch up with the rest

adversarial legal systems.

of the world. This will need the buy-in of many stakeholders

August: Smarter Justice

including

the

Law

Society

Scotland, responsible for setting the training requirements of the legal profession; and the

In August the UK Ministry of Justice launched a

Scottish Government, which should soon be

Call for Evidence on Dispute Resolution through

consulting on the Scottish Mediation Report

an online survey inviting responses until the end

“Bringing Mediation into the Mainstream in Civil

of September. The Foreward states: “What have

Justice

hitherto been regarded as “alternative” methods

implement the SNP election manifesto which

of dispute resolution need to be mainstreamed

pledged to “expand the availability of mediation

within online processes, and within the culture of

and arbitration to ensure alternative dispute

the legal system, those who work within it, and

resolution is a central part of our legal system”.

Scotland”,

and

taking

steps

the consumers and businesses it serves… we need... more innovative technologies with an

We have a unique opportunity to increase access

ntegrated online dispute resolution process… As

to justice through mediation and online dispute

we recover from the impact of the pandemic, we

resolution processes, and create a more cost

want to make the justice system better able to

effective and efficient justice system in Scotland,

resolve disputes in smarter ways, combining pre-

which better serves us all. We simply cannot build

claim portals and court processes with integrated

back better without it.

mediated resolution interventions”.

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CROSS-CULTURAL MEDIATION WITH AN OPEN MINDSET

BY: TASNEEM VIRANI, U.K. Over the last century, the world has changed

hold different cultures and diverse value systems,

beyond recognition, and so have people. The

and this presents a number of challenges in the

change that has come about over this time period

workplace.

is but a fraction of our shared human history. Because of mass migration and longer life

Where a traditional work environment would

expectancy, we’ve become more cross-cultural

once have been set on uniformity and conformity,

and cross-generational.

the world is now embracing people from all walks of life, working together towards the same goal. Acceptance of others is now the order of play, but

Of course, it goes without saying that this is a

clashes, disputes and conflicts in the workplace

good thing. Yet still, it presents challenges, not

remain. Why? Arguably, it is because we do not

least for mediators. How do we keep our minds

listen, truly.

open to other cultures? What should we do to foster inclusivity? Where and when do we best

As we evolve beyond our previously held views,

utilise our skills?

which we deem to be social norms and common conventions, we must meet the future with a

Companies are becoming increasingly global, so

certain mindset and willingness to listen, to really

attracting and hiring talent from all over the

hear what others are saying in order to resolve

world is more feasible than ever. But these people

conflicts.

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Emotions lie underneath, out of sight until drawn

perspective, free of judgment. If we’re too quick to

to the surface, so unless this is effectively

hand out advice or solutions then resistance is

navigated

and

inevitable. The mediator must also check their

acknowledged will escape us. Our ability to act

own biases, both unconscious and subconscious.

with clarity, rather than react with judgment, will

It’s

be decisive.

maintaining balance and not influencing the line

through,

feeling

understood

subtle

art,

but

it’s

fundamental

of questioning.

The purpose of a mediator then is to hear each

The trust of both parties depends on it.

person’s position while remaining open to who and what they are. This is the context we often

So, for this very reason, emotional intelligence is a

miss when engaged in conflict. We think, by

vital skill for any mediator to have. Emotions drive

chronic impulse, only of ourselves, our standards,

behaviour, so if we can get to the heart of the

feelings and our culture.

matter

through

robust

understanding

emotional intelligence, we hold the key to all the

The skill of the mediator lies in asking the right

answers.

questions at the right time. When we do so, we build a sound understanding of the other’s

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STOP BEING CONFLICTED ABOUT CONFLICT: A KEY STEP TOWARDS ORGANIZATIONAL GROWTH

BY: MIKHAILA FENDOR AND SCOTT MILLER, U.S.A.

What is conflict resolution? Katie Shonk of most recently, violent attacks on the members of Harvard Law School Daily Blog, defines conflict

the Asian community have provided countless

resolution as “the informal or formal process that

opportunities for conflict resolution in workplaces

two or more parties use to find a peaceful solution

across the country. Political discussions are

to their dispute.” For those in the conflict

happening more and more in places previously

resolution field, we take for granted the meaning

deemed taboo. Tensions can run high. That is a

of resolution to be synonymous with terms like

given. The question is whether we can use that

management and mitigation. We keep in mind that conflict is ubiquitous, recurring, and natural and that there are useful communication tools readily available for people experiencing conflict and working through disputes. For the general public, however, the meaning of resolution can often be misunderstood in a negative way as definitive and sometimes even punitive. What comes to mind for you when you think of conflict resolution?

Legal

proceedings?

Divorce

and

custody battles? While these are realities of the field, these associations have led to a general hesitation to utilizing conflict management as a frequent practice in the workplace. What is

Photo by Charl Folscher on Unsplash

usually applied, however, are things like policy reform, Human Resource initiatives, and JEDI

tension, aka conflict, to spur personal and

(Justice, Equity, Diversity, and Inclusion) strategic

organizational growth. Or will we let the tension

planning.

fester by ignoring it or running the other way possibly leading to organizational regression?

Take some of the more prevalent conflicts that have been brought to our collective attention in

A popular professional response to this, genuine

the U.S. as of late. In the last year alone, the

or performative, has been to address these

response to the murder of George Floyd, the

conflicts

insurrection after the Presidential Election, and

companies with information about race,

inundating

organizations

and

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diversity, and inclusion. This has been coupled

The events of the last year have brought the

with

importance of diversity, equity and inclusion to

opportunities for engagement, HR, and JEDI

the forefront but they've also brought a lot of fear.

positions as well as new organizational strategy.

Fear of change, failure and saying the wrong

In and of itself, this response provides some tools

thing. Fear of conflict. In work environments

for a more just and equitable workplace. However

especially, this fear can lead to painful feelings

what has been forgotten is that with healthy

such as guilt, shame, rage and humiliation.

change comes healthy conflict. This is one reason

Alternative dispute resolution like mediation and

why reactions to the uptick in JEDI discussions

ombuds services allow organizations to reveal

have been mixed. The increase in dialogue itself is

these potential blind spots and address them. If

reason for optimism. Just as important, though,

more organizations became braver in their

are the critiques for lackluster and superficial

approach to conflict and began to proactively

efforts that seek to “check a box” rather than

incorporate ADR practices, our professional

palpably changing the exclusive atmospheres of

landscape could thrive.

sudden

and

dramatic

increase

many of these workplaces. Justa, N. (2021, March 23). Be the part that heals the world. Diversity & Inclusion. Retrieved April 05, 2021, from

Can JEDI work be more effective if internal soul searching

and

organizational

evolution

https://www.linkedin.com/pulse/part-heals-world-neivia-justa/?

trk=eml-email_series_follow_newsletter_01-hero-1-

inherently accompanied by professional conflict

title_link&midToken=AQGq5m1zurJdKw&fromEmail=fromEmail

resolution? That is — the addition of a completely

&ut=0lBa5Tpp_6qpI1

neutral third party to facilitate self-exploration as

Kennedy, D. (2020, December 07). Moving Beyond “Performative”

well

Diversity Commitments [Web log post]. Retrieved April 06, 2021,

progressive

communication

around

from: https://www.presidio.edu/blog/moving-beyond-

desired organizational change. Arguably, one-off

performative-diversity-commitments/

equity training sessions are simply not enough.

Shonk, K. (2020, October 19). What is Conflict Resolution, and How

There is room for alternative dispute resolution to

Does It Work? How to manage conflict at work through conflict

be utilized in the workplace to have these difficult

resolution [Web log post]. Retrieved April 05, 2021, from

conversations.

https://www.pon.harvard.edu/daily/conflict-resolution/what-isconflict-resolution-and-how-does-it-work/

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THE LAW ACCORDING TO A SYSTEMIC ORIENTATION

A systemic perspective for regenerated relationships

BY: FRANCESCA TODESCHINI, ITALY When faced with similar types of conflict, why can some people find their way while others continue to fight? Why are similar contracts in the

challenged professionals, courts that are asked to make decisions in relational areas that do not seem to belong to the law. Furthermore, they do

settlement content effective for some people and

not like to sentence because especially in the field

not for others? When people manage to find

of family relationships (and family businesses)

lasting agreements over time, what were the tools

they’re not enough. The rules of law do not meet

to achieve these goals?

'emotional' needs and objectives. It is almost obvious that this is the case: the law is a body of

Conflicts are perpetrated and mistreated in the

legal rules that does not aim to regenerate the

long term. People are often not satisfied with the

relationship and the Court is not the place to do

outcome of a trial that is favorable to them or who

so.

are so disillusioned by the (mistaken) expectations placed in "justice" that they have lost faith in the

Thus, it may be argued that the way to agree is a

system.

professional's

road, and in order to make this journey and

intervention is required when the situation is

conclude agreements that will last over time,

almost compromised, so much so that, regardless

other instruments are required .

All

too

often,

the

of wrong or reason, the cost and duration of the conflict is still prejudicial to people. Everyone

disoriented

and

The underestimated dimension of the conflict. suspicious.

Quarreling is actually a way that people use to stay

Frequently, professionals simply repeat their

connected.

client’s requests without going into depth, thinking that it will work in their best interest.

If you do not know any other way to express your

Long disputes, high costs (even if the time taken

needs and relational expectations, quarreling or

to deal with a dispute is not necessarily linked to

anger becomes the only way to maintain contact

the cost), unhappy people, dissatisfied and

with the person you are quarreling with.

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Becoming aware of this dynamic allows you to

of a paradigm that for centuries has informed and

take a step forward to orientate yourself towards a

conditioned all areas of human knowledge: the

change of perspective.

division between mind and matter. The division, the parcelling out, the decomposition of the whole

A second basic assumption that is not very well

into individual parts, to measure and catalogue,

considered is that conflicts, or even "simple"

with the declared aim of controlling natural

disagreements,

the

processes and dominating them for the benefit of

relationship. It is a real mistake to believe that

the individual or small groups of individuals. The

discussing, sometimes even with passion, is a

result of this separation in law is the vision of

symptom of a relationship that does not work.

conflict exclusively in terms of wrong and reason.

exist

and

are

part

Disagreement is an opportunity to learn about oneself and others. While it is true that finding the

The system view has involved the adoption of a

answers is important, it is equally important to

holistic paradigm and turned the attention to the

ask the right questions and discuss with the

unification of body and mind, to look at the whole,

prospect of understanding each other.

to map it and know the process of organization, even before understanding how it works. The

Additionally, when the "unspoken relational" is

whole is more than the sum of its parts.

included in the negotiation, at any level, and then transferred into the contractual fabric, people are

The field of law is not exempt from understanding

more satisfied and inclined to maintain the

these issues because we are the society. The same

agreements reached over time.

"we" who go to court to argue and then go shopping, to the cinema or take our children to

The law according to a systemic orientation.

school. And to young people, from whom we have so many expectations for the future, we must set

The law according to a systemic orientation is a

an example now. Each one in his or her own field.

way of approaching conflict management that is at the service of the relationship, with the aim of

From what do the qualities of the whole derive

making people more autonomous and aware of

that are more than the sum of the qualities of the

what emerges from the conflict process. Modern

parts? They derive from processes and patterns of

science has confirmed our identity and identified

relationships that are unique to all living systems

the

and must be mapped and understood in their

organization for all forms of life (microorganisms,

uniqueness, rather than measured and broken

cells, plants, animals, human beings, social

down to be controlled. The systemic approach is

groups, organizations, ecosystems). All living

one of process thinking that goes beyond the

organisms are structured according to networks

linear vision to adopt the non-linear one, typical

and they relate to each other through networks.

of living systems: it is the approach that is

The arrival of this awareness in science was

required to understand conflicts and find creative

certainly not the result of a simple path, but

solutions.

entire

system

unique

model

brought about a revolution and the overcoming

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The law according to a systemic orientation is at

that reflects the indicators of ecological culture,

the service of the relationship.

which is a science of relationships, means giving value to a basic principle whose development

The direct consequence of overcoming the

originated in science: life creates favorable

Cartesian dualism between mind and matter is the

conditions for life. In nature, in fact, processes are

overcoming of dualistic thinking applied to

sustainable

conflict: the alternation between wrong and right.

processes.

because

they

are

regenerative

From this point of view, the solution of the conflict is the consequence of a way of being

Sustainability does not mean "keeping things the

managed: a way in which the relationship between

way they are" (balance, moreover, precarious!),

the parties is considered, the network structure

but putting in place tools useful for the use of

that contains the meanings and the tools useful to

resources in an ethical way for oneself and for

make them emerge, taking into account the

those who come next. Ecology is the science of

context and personal values.

relationships

because

the

network

the

epistemological key to understanding reality, In the structure of the relationship, “the way of

made of biological-social networks. It means

managing" is the process. It is the way of

passing from a logic of quantity to one of quality,

managing that finds the solution, not the other

from measurement to mapping, from right/wrong

way around.

to integration, which is needed for the solution. In short, from conflict to relationship.

It is no longer a current thought that a lawyer should only do trials. The capacity for relational

The sustainability of conflict thus becomes the

and practical organization is not at a different

container

level to conflict management, it is not the icing on

relationship.

ethical

approach

the

the cake, but it is the yeast and, beyond the metaphor, the ability of a business vision that

Even law applied with a systemic approach can be

generates value. A professional negotiator knows

regenerative if the objective is to "see" the conflict

that in order to serve the interests of his client,

from the point of view of the meaning it conveys.

the defense does not always involve a winner and a loser as the only solution. He must also be able

The instrument of mediation, introduced in the

to recognize the process of emergence of a new

Italian civil law as an alternative procedure for the

possibility of order in the conflict and help people

resolution

go down this path.

appropriate place for the field of conflict and

disputes,

can

become

the

systemically oriented relations. It is a place where The solution cannot be the same for everyone and

it is possible to free oneself from the narrow mesh

must be found together. The legal dress is only a

of procedural rules and, in compliance with

next step, necessary and useful to translate one's

lawfulness, to deal in a single procedure with the

decisions into legal instruments. Putting the basic

complex issue involving the parties in dispute and

assumptions into play and creating an approach

also to find agreements on how to prevent

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subsequent litigation. This also means letting the

with others and is an attitude that includes a

litigation that is destined to run along those tracks

number of basic soft skills: acceptance and

and that kind of Court rules to take place in the

management of change, propensity to experiment,

Court.

familiarization with uncertainty, listening skills, effective

communication,

ability

create

collaborative and efficient networks. All these

In mediation the following development can take

resources are the result of the emergence of a new

place in the awareness of the parties:

non-linear awareness, possible on the basis of a

change of perspective;

systemic understanding of life.

stimulus to openness; facilitating the emergence of the relationship

We are all connected and interrelated. Nature is

in the conflict;

sustainable because it is regenerative. Even the

creative translation into contractual clauses.

applied law can be regenerative if the objective is to

The ability to be proactive is a skill that allows

"see"

the

conflict

from

relationship

perspective.

you to manage relationships with yourself and Note: References to concepts related to systemic thinking are taken

Ferrucci Piero, Crescere, Astrolabio Ubaldini, Rome, 1981.

from the Italian edition of the book "The System View of Life" by

Hellinger Bert, Gli ordini dell’aiuto, Tecniche Nuove, Milan, 2007.

Fritjof Capra and Pier Luigi Luisi. Ed. Aboca

Hillman James, Il codice dell’anima, Adelfi, Milan, 2011. Krishnamurti Jiddu, Sul conflitto, Astrolabio Ubaldini, Rome, 1994.

Biography:

Rogers Ramson Carl, Un modo di essere, Giunti Edizioni, Milan,

Capra Fritjof and Mattei Ugo, Ecologia del diritto, Aboca,

2012.

Sansepolcro, 2017.

Ulsamer Bertold, Non c’è ordine senza amore, Crisalide Edizioni,

Capra Fritjof and Luisi Pierluigi, Vita e natura. Una visione

Spigno Saturnia, 2011.

sistemica, Aboca, Sansepolcro, 2014.

Wilber Kenneth Earl, Oltre i confini, Ed. Cittadella, Assisi, 2010.

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SOME THINGS ARE WORTH WAITING FOR – THE GOLDEN AGE OF ADR IS AT HAND

BY: TONY GUISE, U.K. In 1875, after some 70 years of wrangling, negotiating and horse-trading, Lord Selborne, LC finally saw a reformed civil justice system come into being. The transformation of the civil justice system of England and Wales came about with the passing of the Judicature Acts 1873 and 1875 which, with the Judicature Act 1876 (preserving the Law Lords’ grip on the Common Law as the final court of appeal), swept away the rivalry between competing courts, fused equity with the Common Law and created an entirely new structure for civil and criminal justice. One can never accuse the Common Law of rushing to reform! It would be another 90 years before any further serious reform was attempted again in the form of the Rules of the Supreme Court, 1965, following Lord Evershed, MR’s recommendations of 1951. Left to its own devices the Common Law has a natural tendency to ossify. This tendency is well illustrated by two books, which I commend to the reader: the lectures of F W Maitland collectively entitled “The Forms of Action at Common Law” first published (together) in 1909 and Lord Denning’s “From Precedent to Precedent” a Romanes Lecture from 1959. In each both authors identify this ossification as a feature. The genius of the Common Law of course lies in its ability to reinvent itself.

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We are in another period of reinvention today. Beginning with a new procedural framework laid down by another reforming Master of the Rolls, this time Lord Woolf. Those reforms became the Civil Procedure Rules, 1999 and are now being further developed by yet another Master of the Rolls: Sir Geoffrey Vos. The moment of reinvention has been brewing for some time. 150 years after Lord Selborne’s triumph today’s reforms aim to soften the Common Law’s rigour and hasten the pace at which disputes can be resolved. Today’s reforms are no less ambitious with the statutory creation of an Online Procedure Rules Committee which will have jurisdiction over all three of civil jurisdictions: Civil, Family and the Tribunals. This is enabled by clauses 18-36 of the Judicial Review and Courts Bill which receives its Second Reading in the House of Commons on 18 October 2021. Once passed the Committee will have all the power it needs to put pre-action procedure online in what has been called a “digital funnel”. Through the funnel one reaches the existing HMCTS portals passing through a host of online resources and, crucially, entering the world of ADR. The reforms envisage ADR without the “A” but will simply be called dispute resolution as the practice of ADR is mainstreamed. Indications are that entry to ADR will be via a meeting at which neutrals will discuss with parties whether they believe ADR offers a chance to resolve their dispute quicker and with outcomes far more flexible than the binary win/lose that the Courts or Tribunals can offer. For ADR neutrals and parties alike this will be the golden age of dispute resolution.

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START AT THE BEGINNING: WHAT START-UP AGREEMENTS AND PRENUPS HAVE IN COMMON

BY: ALNOOR MAHERALI AND EHSAN ALI OF VENN MEDIATION, NEW YORK Embarking on a new partnership can be exciting

discussion, being upfront about what each party

and daunting at the same time. Whether it’s taking

brings to the table is a great starting point for

a big step in a relationship or launching a new

building trust. In prenuptial discussions, proof of

venture – there is so much to think about.

full and fair disclosure is required in many

Preparing for success includes thinking through

jurisdictions

what success means for every stakeholder – and

enforceable. But noting what each party will

what to do if things start to go wrong. These

contribute to the new venture is common in start-

conversations mediators

are

rarely

improve

easy,

for

the

prenup

court

but

skilled

up agreements as well. Mediation helps parties to

communication

when

better communicate their contributions to the

negotiating start-up agreements and prenups, to

new venture – be it business or personal.

better ensure long-term success. Item 2: Defining Success Item 1: Full Disclosure

Defining success is crucial. Very often, new

Whether it’s a startup discussion or a prenup

partners are so excited about getting started that

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they forget to discuss the end result they are

working together to avoid them. Mediators build

trying to achieve. While understandable, this can

on the information listed above and help parties

create unpleasant conditions where one person is

consider what would be a fair deal if they ever

happy with how things are going but the other is

have to go their separate ways. This requires a

frustrated by a lack of progress. Or worse, both

mediator equally committed to finding solutions

partners are unhappy and unsure how to fix it.

that (A) work for parties and (B) could be

These problems can be avoided if the parties,

enforceable in court if necessary.

business or personal, define their metrics for

Whether you’re considering marriage or a new

success early on.

venture, a mediator can help strengthen the relationship and pave the way for long-lasting

Item 3: What if Things Go Wrong?

success in your startup or relationship. If you or

No one wants to consider things falling apart –

someone you know are taking an exciting next

especially while they are putting the pieces

step, contact Venn Mediation. Start your colleague

together. Instead of dampening the excitement,

or loved one off on the right foot.

partners can approach the discussion about potential separation as a way to strengthen their

Venn Mediation is based in New York but are experts

commitment to each other. A true partnership is

in online mediation and can work with people

made when parties choose to be together, freely

anywhere. They specialize in commercial and family

and transparently. Thinking about what happens

disputes and help their clients by making tough

if a partnership breaks down gives partners the

conversations easier.

chance to identify future pitfalls and commit to

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2021

ISSUE 2

IS MEDIATION THE “HUMAN-CENTERED” MODEL FOR ADMINISTERING DISPUTE RESOLUTION IN THE WORLD OF CONFLICT?

BY: NATASHA APOSTOLIDI, GREECE This is a challenging question for those involved in the field of law. Mediation possesses the practical and scientific tools to successfully suggest a “humancentered” model for dispute resolution safeguarding the relationships at stake, either personal or business. A mediator is soft on the people and hard on the problem. Taking into consideration that psychological and emotional

issues

are

involved

any

dispute,

mediators are trained to perform non-legal techniques, special skills and complex natural talents in order to allow emotional issues to be revealed, acknowledged and managed in an effective manner. Emotions are the key players in a conflict, which are shared within a safe environment. The parties are given the opportunity to release the “skeletons in the closet” and disengage themselves from past negative feelings. Once the parties are liberated from emotional toxicity, they can let go of the past and move forward. At this stage, the mediator skillfully navigates the parties towards their common aim to reach an agreement in compliance with their interests and needs.

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Mediator’s empathy, mindfulness, and active listening, enhanced by confidentiality, provides a safe environment enabling the parties to overcome the challenges occurring during the negotiation process. Mediator’s negotiation skills are used to bridge opposing positions presented by the parties assisting them to better perceive, specify and focus on their needs and interests instead of bargaining on positions. Active listening is a powerful tool to build up meaningful dialogue between the parties. It gradually motivates them to rebuild their relationship on a different, healthier basis. The aim of Mediation is a mutually beneficial (win-win) agreement concluded by the parties themselves. The lack of a third party’s intervention in the context of the settlement is beneficial in all aspects. The parties are more willing to reach a settlement as an outcome of their own free will. Furthermore, the mediator facilitates the parties in confronting and overcoming their fears. The conquering of fears is literally liberating because, in the absence of fear, the parties are engaged and willing to participate in the negotiations and confront the other side courageously without any barriers that may impede the achievement of a suitable agreement which they can both live with. Mediation triggers self-awareness. Mediation is a choice which, once made, can positively impact the parties’ selfconsciousness while they experience a positive change in their mindset detached from past restricting beliefs and emotions hindering self-improvement. Mediation is a human-centered process where mediators delve deeper to understand what hinders the parties from settling. In this respect, mediation tactfully serves the mission of peacemaking. Undoubtedly, mediation faces the daunting challenge to train individuals, businesses, organizations, governments and, even more so, legislators on how to efficiently implement peacemaking in the world of conflict.

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THE AOI JOURNAL

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