Through the promotion of CPR’s actions in spending efforts and resources in developing a sustainable corporate ADR culture, in my opinion the Milan seminar gave the audience a chance to discuss and deeper investigate the differences between litigation, arbitration and a completely different thing, i.e. mediation.

And, frankly speaking, it seems quite incredible to me that most in-house counsels prefer arbitration and mediation despite of mediation.

As arisen during the debate, in-house counsels have to deal with companies’ budget limits and the need of avoiding long-term uncertainty caused by cases pending before courts (for many years) and also before arbitrators (for at least 1,5 years).

From another point of view, we could maybe say that the result of litigation/arbitration, judgment/award, Justice in other words, is not sustainable given the companies’ needs, and is the opposite of what companies are looking for. Mediation, indeed, if correctly and efficiently carried out, has the great value of meeting the companies’ needs, because it moves its results on the ground of interest, not rights.

Moreover, what is looked for by a company is -according to what in-house counsels say, and that’s true and correct in their view- to try and meet as much as possible the expectations of the business/deal which was formerly good and then turned into a difficult scenario.

This, without forgetting the most important point in terms of concrete results: a mediation agreement has to be performed by parties, a judgment/award has to be enforced against parties, that quite often are based and established in foreign countries.

Moreover, whitout forgetting another really important point arisen from the audience: at the end of the mediation, even if it fails, the attorneys gain the advantage of better knowing their case to-be.

However, mediation is still not well considered by in-house counsels and, in our experience, by any party. This reconnects to:

(a) as briefly anticipated above, the need for a mediation to be correctly and efficiently carried out and, ideally,

(b) to one of the panelists' clear speech about mandatory mediation in Italy: there is no effective mediation if parties/attorneys and mediator don’t effectively do their job in such scenario.

On one side, parties/attorneys have to join mediation with the mood of finding a solution that could be of common interest: this requires acting as in a negotiation but in the light of being led by a third party.

On the other side, mediator has to led parties to their common goal, which is the same of him/her: this can be done through the stressful exam of opposite roles and positions in the controversy, and the hard duty of trying to summarize the arisen issues and going beyond them.

The common goal is to reach a proposal that is sustainable for all parties involved,

(a) according to their reasonable and good-faith expectations,

(b) given all the relevant circumstances and

(c) considering their rights, i.e. the possible result of a judgment/award -also in terms of enforcement difficulties- as a warning or, in other words, as consequence of possible failure of the mediation attempt.

This requires authoritativeness, which maybe is the key point of the entire discussion.

Nicolino Gentile, BLB Studio Legale, Milan

Links:

www.cpradr.org

www.camera-arbitrale.it

http://www.camera-arbitrale.it/it/news/Developing+a+sustainable+corporate+ADR+culture.php?id=678

www.blblex.it