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THE SECTOR VIEW: CENTRE FOR EFFECTIVE DISPUTE RESOLUTION


benefit of being significantly more time and cost efficient, but an additional benefit of mediation is the significance given to interests rather than positions in determining an outcome. While litigation and arbitration refer almost exclusively to party positions (i.e. where each party stands in the present based on their past actions and on their rights), mediation focuses on the interests (i.e. what each party would like to gain from the situation and move forward).


POSITIONING TO WIN:


HOW TO FOCUS ON INTERESTS


energy level, decreasing costs in the long run. However, the machine has been heavily damaged due to a defect and is out of commission for the foreseeable future, incurring repair costs and a significant decrease in productivity. Te factory believes it should not be held responsible for the breakdown because they did not manufacture the machinery, and the food company has threatened to sue, but has agreed to submit to a mediation instead. While many companies already have mediation clauses written into their contracts, it is still important to actively recognize some of the benefits of mediation over litigation or arbitration in order to encourage business engagement and understanding. Mediation has the obvious


A 54 EXPERTVIEW SPRING 2015


multinational food company contracted with a canning factory which used a new piece of machinery that was meant to increase production at a lower


THE OLD WAY Te difference between positions and interests is visible in the simplest of terms: when a judge or arbitrator looks at a case between parties, they see the position of the parties based on the actions that brought them to their current situation. If, for example, the above contract dispute goes to trial or arbitration, the judge or arbitrator might see that an employee of the factory did not properly consult the handbook before using the new piece of machinery, or that it may have been the company that did not provide adequate training. Based on the evidence provided by both parties, the judge or arbitrator will make a decision about what penalty should be paid by the “guilty” party, and the case is concluded or, if a party does not like the outcome, appealed. Tis is done in an entirely scientific manner: the outcome is determined based on the facts of the case, regardless of the needs of people involved in the case.


MEDIATION HELPS PARTIES INVOLVED IN DISPUTES TO MOVE FORWARD, SAYS DR KARL MACKIE CBE


THE NEW WAY Tis approach stands in direct contrast to the manner in which mediation approaches the outcome of a case. While arbitration and litigation focus on the position of the parties upon commencing the chosen process, mediation and negotiation focus on their interests by taking into account the current situations of each party and their progressive desires. A mediator might be able to draw from each party their commercial and personal needs as well as legal perspectives and to then seek to orchestrate those into a more creative solution. Coaxing an in-depth dialogue between the parties delves deeper into their respective current situations, garnering a solution based on mutual wishes rather than insurance policies or law.


A MEDIATOR MIGHT BE ABLE TO DRAW FROM EACH PARTY THEIR COMMERCIAL AND PERSONAL NEEDS.’


LOOKING FORWARD But why is this so important? If litigation in this case would have ended with some form of a ‘settlement’ anyway, does it really matter in what form that arrives? Te answer to this can be found in the essence of mediation as a whole. Conflicts, whether between corporations or individuals, are truly settled when both parties feel satisfied with the outcome and that they can move forward. As many would attest, litigation can often leave parties dissatisfied, even when there is a nominal ‘winner’, not to mention damaging the whole relationship further. By targeting on interests, mediation helps parties look and move forward and leave the conflict in the past.


EV


For further information go to www.cedr.com Tel: 44 (0)20 7536 6000


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