B- Significance of the mediator' intervention
The first think that need to be said here is that sometimes
dealmakers may decide to resist the notion of incorporating a mediator into
their negotiations or in other words they may not include a mediation clause at
the time of the drafting of their contract. This is due to many raisons: the
most important is relating to lawyer's resistance to mediator' assistance.
Before analyzing this issue it should not be forgotten the
primary barrier to entry for mediators is most likely habit. Dealmakers are
accustomed to contracting in a certain way, with lawyers. They may be
unenthusiastic to change the status quo process, particularly if the stakes are
high, like in a cross border mergers. A contracting party may also fear that
suggesting mediator intervention will in itself signal weakness. Mergers,
considered as high-stakes transactions are often carried out with a certain
audacity. Successful dealmakers may worry that proposing to hire a mediator
will be interpreted as an implicit admission of inability or fear. More
problematic still, an opposing party might believe that the
188 Barker, J.,
«international Mediation - A better alternative for the resolution of
commercial disputes, Guideline for a US negotiator involved in an international
commercial Mediation with Mexicans», Loyola L.A International Law and
Comparative Law Journal 1996 (west Law )
suggestion to bring in a mediator means that the deal is
likely to be close to collapse at some point. In addition to this primary lack
of enthusiasm to use a mediator, lawyers that currently assist in transactions
may resist mediator assistance. The issue needs more examination.
A lawyer may fear that if a mediator can find doubt the
lawyer's skills as a negotiator. Lawyers may be particularly reluctant to allow
a mediator into their negotiations, given that transactional attorneys often
pride--and sell--themselves on their bargaining abilities. More generally, to
the
extent that a mediator can help parties to monitor their lawyers,
lawyers have an inherent motivation to resist the use of such mediators.
Finally, a lawyer may fear that a client will turn exclusively to
using a mediator, completely eliminating lawyers from transactions.
The situation becomes more complex when a lawyer acts as a
mediator. The increasing lack of regulation of mediation outside the US and
particularly in many civil law countries, such as in Tunisia has created
opportunities for many different types of professionals to practice mediation
in a variety of settings, for a variety of purposes. Lawyers who practice
mediation and law are likely to find themselves in situations where the role of
"impartial mediator" may conflicts with the role of "loyal lawyer".
Lawyers who are simply not familiar with Mediation culture, who
are very distrustful of it for whatever reasons, who want to get involved with
it, they will be advising their client that it is risky. The mediator's role in
assisting parties in making decisions about conflict approaches is somehow
similar to role decisions faced by lawyers189, such as collecting
the fact, explain how the law applies, analyzes. The task of the mediator is to
assist parties in making their own informed decision based on data and
knowledge of procedural opportunities available through various approaches
outlined by him. However, in circumstances where considerable efforts have been
spent negotiating, lawyers may decide that
189 Hamilton. P, "Counseling and the Legal
Profession", American Bar Association Journal, 1972
Mediation would be futile and proceed directly to Arbitration.
The attorney,s role as loyal advocate for clients raises doubts
about his or her impartiality in a mediation between a former client and a
third party.
Simultaneous representation of a mediation party indicates an
undeniable lack of impartiality and invites potential abuse of confidential
information learned during mediation. Confidential information is crucial
during the negotiations of a merger.
In other words the mediator,s impartiality is critical
to the success of the mediation and the protection of the parties,
rights.
One can ask the following question: when lawyers are acting as
mediators, which rules must follow professional rules for lawyers or the
standard Code of Conduct for mediators? From American perspectives, some rules
have been promulgated by professional organizations, courts, or legislatures
govern mediator conduct. In 1994, the American Arbitration Association,
American Bar Association, and Society of Professionals in Dispute Resolution
proposed a set of comprehensive ethical guidelines for mediators: the Model
Standards of Conduct for Mediators (Model Standards)190. Equally,
from European perspectives, as part of the follow-up to the EU Green Paper on
ADR, a European Code of Conduct for Mediators has been launched at a European
Commission Justice Directorate conference in Brussels on 2 July
2004191. The Code sets out a number of principles to which
individual mediators can voluntarily decide to commit. The principles cover all
areas of mediation including competence, advertising, impartiality and fees. It
is intended to be applicable to all kinds of mediation in civil and commercial
matters.
These codes of conducts are all very well particularly when
mediators act independently but when lawyers are serving as mediators there
must be provisions included in their rules of professional conducts governing
such situation. None of the rules adopted in the Europe and in the US
adequately address all conflict of interest situations lawyers-mediators may
face.
190 US model standards of conduct for mediators. See appendices
n°7 191 EU Code of conduct for Mediators See appendices
n°8
Legal communities in both civil law and common law systems should
educate parties and their lawyers of the possibility of requiring lawyers to
advise transacting clients about the potential benefits of mediators and
consequently improve the significance of the mediation clause on the
international level.
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