By Gert Nilsson
Trade between different states is taking place on a greater scale than ever before. Small and large companies are doing business across borders every day, all around the globe and many companies are established abroad. However, this is by no means new information.
Disputes arising from international business dealings can be complicated and expensive, especially if the parties come from different countries and continents. Moreover, existing business relationships can often break down while in conflict. There are of course courts and arbitrators to resolve cross-border disputes, but this is not only a very expensive and potentially destructive way of finding a solution, it is also often very time-consuming. But, this is also not news to you.
So, what can we do in order to effectively manage a cross-border dispute?
In this forum I think I do not have to argue for the use of mediation, but is there something else that could be considered?
Companies from different countries often have significant social and cultural differences. This might imply that both parties want a mediator from their own cultural, legal and industry background. If so, the dispute can be managed by two mediators, one from each country. This is called ‘co-mediation in cross-border disputes’ and can be a very powerful tool in such cases. In addition to the general benefit of a mediator with four ears, four eyes, and two brains – through co-mediation the parties also can achieve the advantage of mediators with a multi-cultural approach. This can ensure the parties’ respective interests and needs are met, which is a fundamental cornerstone in mediation.
Two heads are better than one
Imagine, for example, a German company in dispute with an American company, attending mediation in New York City with a mediator from the US. The German company might feel it is ‘playing a game’ far away from home. In such an instance it could be productive to use co-mediators, one from America and one from Germany. This can help to build trust in the process from both parties.
In emotionally charged cases where there is a considerable amount of tension, co-mediation can also be highly effective. One party may need a lot of attention or handholding, which can be dealt with by one mediator while the other focuses on other matters, this can both allow for greater sensitivity towards the parties and efficiency overall.
Furthermore, typical multi-party cases conducted by single mediators can involve a lot of waiting around. Participants may spend a lot of time sitting in separate rooms waiting for the mediator to return to them. A long wait can lead to uncomfortable downtime or even frustration, which can affect the progress of a mediation or at least such a perception. Two mediators working together however, can divide up the work – each separately engaging in discussions with participants during that time. As long as the co-mediators are well organised, compatible, and are able to keep each other up to speed on the status of the negotiations, they can be twice as effective in moving the case towards resolution.
There are of course challenges in co-mediation, such as the need for both mediators to have a really well developed ability to collaborate with each other. This is generally a matter of practise, which in the long term could be managed within mediation skills training. In the short term you have to find mediators who are already good at collaboration and willing to do it. One way of facilitating such collaboration is to let one of the mediators be the main mediator, which might be the mediator from the country where the mediation sessions are held.
There may also be language difficulties. Then you probably have to find mediators that share a common language with the parties. Often one of the widely spoken and common language of communication will work.
However, from my perspective the above mentioned challenges are of a technical nature and need to be managed as such. I still find the concept of co-mediation to be a powerful tool in cross-border disputes. From my point of view the advantages of co-mediation still distinctly weigh up the challenges.
As far as I know ‘co-mediation in cross-border disputes’ is not a commonly used form of mediation today, but it is my strong belief is that it has a very bright future.
Written by Gert Nilsson.
For the last 26 years Gert Nilsson has worked as a business lawyer in Stockholm, Sweden. Prior to that he worked as a law clerk in court and as a police officer. Thus, all his professional life he has been deeply involved in conflicts and disputes. His main professional areas are business law, construction law, employment/labour law and dispute resolution (litigation and mediation). He is trained as a commercial mediator by CEDR, holds a National Certificate in Workplace Mediation (trained by the TCM Group, London) and is also a Non-violent Communication (NVC) Mediator. The fields in which he works as a mediator corresponds to the legal areas mentioned above. But he also mediates a lot of family disputes. He believes that “mediation circulates around human behaviour and human needs, regardless of what kind of mediator you are”.