Mediation: Practice areas 

INTER-COMPANIES DISPUTES 

Or disputes opposing individuals and corporations or companies.

Due to the permanent, and generic presence of trade, business, and commerce in our everyday lives, commercial disputes of all kinds are amongst the ones that are frequently being settled in an amicable way. However, equally often they are at the basis of time and money-consuming battles.

Commercial mediation therefore is the most common application of our expertise, dedicated at the appropriate resolution of disputes between the different parties interacting in the market, whether they be private or public bodies, as well as the consumer.

Con-Sent ADR covers the array of disputes arising in regard to the performance, or payments of contracts relative to goods or services. Our field of intervention includes mediation

-          between selling and purchasing principals

-          between retailers and suppliers

-          between general- and subcontractors

-          in finance, insurance, procurement and real estate matters. For the latter, see the specific section.

Together with the parties involved, we will engage in a creative process that will generate new solutions or new combinations of solutions. Typically, a bi- or multilateral contract, addressing all parties’ points of interest with satisfactory solutions, will be the result of our business mediation process. Where desirable, long-term relations are being preserved in order to enable future cooperation. 

Trade, cooperation, partnership: they all are to a certain extent ruled by law, but also by the contracts and agreements established over time by the interacting parties in order to set their framework of rights and obligations.

Whereas these are generally intended to avoid disputes, as time evolves differences in interpretation, non-compliance or breach may occur.

At Con-Sent ADR, we aim at solutions without engaging in, or parallel from the possible engagement of aggressive litigation proceedings by the parties. Generally, our parallel proceedings in full cooperation with the parties, tend to lead to satisfactory and - especially when multiple jurisdictions are involved – significantly quicker settlements of the dispute.

Con-Sent ADR has a long-running experience in mediating disputers towards settlement, and has done so in a broad spectrum of contract disputes, ranging from sales contracts, disputes between suppliers, vendors, end-users and retailers, franchisor and franchisees, to contracts over concession, agency, franchise & licensing., as well as commercial representations and service contracts,

Where necessary f.i. if the involves distant parties, covering different cultures and jurisdictions, our network will enable us to quickly form an international team with co-mediators, committed to the same values and quality standards as we are . We will pragmatically chose the way in which our clients can achieve good results., and will tailor our approach to the needs of the situation, whether the parties are  large corporate undertakings, or smaller enterprises.  

Non-resolved contract disputes and breaches often lead to civil conflicts and claims of different kinds, that can arise over a variety of issues, including responsibility, liabilities, damages, claims, fiduciary obligations and insurance coverage claims.

A specific field includes issues w/r professional liability and malpractice claims, amongst which medical malpractice.

Even wrongful death issues offer possibilities for mediation between parties, except for, and therefore alongside eventual criminal proceedings.

 

Generally speaking, real estate constitutes one of the most prominent forms of property ownership and usage, spread throughout all layers of society and its actors.

Issues over planning itself, as well as construction, construction design, material failure, install-time limits, and  deficiency claims of various kinds are amongst the most frequent during the planning, development, promotion, sale and/or brokerage phase of projects of all kinds, whether it be in the field of residential housing, for industrial or commercial projects, or in public developments.

It is mostly during later phases that other disputes arise: ground lease controversies, damages, and conflicts between residents, enterprises and municipal authorities, easement and right of way between neighboring landowners, intergenerational property transfer disputes, expropriation…

Mediation in this area can, and will most of the time involve multiple parties and stakeholders: owners, developers, architects, design consultants, general contractors, suppliers and sub-contractors, but also public and governmental authorities, owner and tenant syndicates, community and environmental associations and representations of different industries.  Multiple-party mediation, and mediation including public authorities, are areas in which Con-SENT ADR displays a specific expertise and experience.  

When appropriately conducted, alternative dispute resolution (ADR) proceedings offer major opportunities towards the resolution of intellectual property disputes. Mediation, specifically, is an attractive option for parties that place a premium on the preservation or enhancement of their relationship, seek to maintain control over the dispute settlement process, value confidentiality, or want to reach a speedy settlement without damage to their reputations.

Parties involved in the exploitation of intellectual property will often share these goals when a dispute arises.

Common examples of areas in which mediation over contracts or infringement disputes can be deployed, include patent, know-how, copyright and trademark licenses, franchises, computer contracts, multimedia contracts, distribution contracts, joint ventures, research and development contracts, technology-sensitive employment contracts, mergers and acquisitions where intellectual property assets assume importance, sports marketing agreements, and publishing, music and film contracts.

Con-Sent ADR will bring the stakeholders together, look for common ground and allow the parties to reach an amicable settlement.

Investment project can be complex and involve multiple private and public partners, as well as the authorities.

Mediation between parties, as well as public policy mediation and pre-mediation, although not yet widely spread in this field, offers major opportunities towards the facilitation and smoothening of a process that otherwise can be marked by strong oppositions and even paralyze progress.

Con-Sent ADR acts as one of the pioneers in this field, built upon specific academic and empiric  backgrounds.  

Where various parties and authorities interact, where there is need for legal security and the respect of deadlines, we can offer a tailored lead , and instrument road books with the different parties, in which the interests of the variety of stakeholders are being met.

Other investment issues can include investor claims and shareholders disputes, and business enterprise succession matters, to which is being referred in the specific related chapters. 

 

IN-HOUSE DISPUTES

And disputes within corporations, entities, or cooperation structures.

The employer and the employee have a clear disagreement. For a variety of reasons they are not ready to end the relation between them. Nevertheless the situation has to be dealt with; at the end it is possible that the contractual relation between them has to be ended; if that is the ultimo conclusion of the mediation, it is preferable on the basis of mutually acceptable terms and conditions.

Trade unions and representatives of the business world disagree on a number of primary and secondary conditions within the framework of the negotiations on a new COLLECTIVE LABOUR AGREEMENT; the judge has made it clear that a strike is premature while the representatives of the employers is given to understand that it is appropriate to go back to negotiating table.

The Works Council sees itself confronted with a rigidity of the relationship with the Executive Board of their own company; the Works Council would, however, prefer to remain in talks with the Board.

Con-Sent ADR mediators know the above situations from their previous professional activities. For this reason, combined with their experience as a mediator they will soon be able to determine what is going on and which steps has to be made. By using the principles of mediation, the Con-Sent ADR mediator can streamline the talks between the different parties which is inadmissible to create a solution.

To avoid mediation or other dispute resolution Con-Sent ADR mediators can also be of an added value before or during negotiation processes on the basis of unilaterally advise one particular party about a negotiation process in general but also specific.

It is unfortunate but it is almost a universal experience that having to work together, interactions and conflicts occur. But while we cannot avoid conflict all the time, it is possible to deal with conflict in a constructive rather than a destructive manner. 

Conflict is a natural disagreement resulting from individuals or groups that differ in attitudes, beliefs, values or needs. It can also originate from past rivalries and personality differences. Other causes of conflict include trying to negotiate before the timing is right or before needed information is available. 

The potential for conflict exists whenever and wherever people have contact. As people are organized into groups to seek a common goal, the probability of conflict greatly increases. 

Conflict should be viewed as a challenge and opportunity rather than always negative because conflict sometimes promotes communication, problem solving, and necessary change for the benefit of the group. The ability to resolve and manage conflict is most likely one of the most important social skills a person can possess. 

In fact a conflict can be healthy when effectively managed. Healthy conflict can lead to:

- Growth and innovation;

- New ways of thinking;

- New management options 

If the conflict is understood, it can be effectively managed by reaching a consensus that meets both the individual's and society's needs. This results in mutual benefits and strengthens the relationship. The goal is for all to "win" by having at least some of their needs met. 

Con-Sent ADR mediators are trained, equipped and dedicated to avoid and assist when  nevertheless occurs, a conflict between co-workers, with an other stakeholder surrounding a company or between in depended professionals working together in a medical clinic, as dentists, as lawyers, as accountants and so on.

Corporate governance concerns not only how a board steers or directs a company

and the management, but also how managers manage. Corporate governance is simply defined as how companies are directed and controlled. Corporate governance provides principles and practices to aid directors and managers in discharging their responsibilities. Mediation can become a management tool and thereby strive for conflict prevention rather than conflict resolution. 

When a dispute arises, certainly when it is within the company, what is in the best interests of the company? The answer is to resolve it effectively, expeditiously, and efficiently. A company needs an adequate mechanism to resolve disputes which may arise. 

The Corporate governance code is a set of rules applicable to the business world; for that reason rather broad; it requires more and more often mediation skills to implement those rules than somebody would assume at first sight. For example when the naming of employee representatives to the management board is difficult due to the event that a two-thirds majority of employee votes needed to appoint such a member to the supervisory board is not met. There is always the possibility that a dispute arises about remuneration, especially when the remuneration is for a large part based on criteria which are not directly measurable, for instance levels to be reached as far as it concerns sustainability; what within a company by person A is considered as values of sustainability could be for person B completely different.  

It is because of that likely that the set of skills that we know as mediation will be of increasing importance as a tool, not only for conflict solutions, but also for dealing with corporate governance issues. 

Con-Sent ADR mediators are very much aware of corporate governance and the consequences of that governance for the internal interaction within a company.

Disputes between shareholders and/or directors within a limited company require special skills to resolve. ​These disputes can be very damaging to the financial and trading well-being of the companies themselves. This is particularly so when the Board and shareholding is split evenly, thus often placing the company in a stalemate situation in which no one can make corporate decisions without the support of those with whom they are in dispute. 

The interests of the company itself is often overlooked as people fight to protect their own personal interests.  For most companies, resolving situation  is more difficult because they failed to enter into a Shareholders Agreement. 

Con-Sent ADR mediators assist directors and shareholders to resolve their disputes in a much faster and less costly fashion than by pursuing legal remedies through the courts and tribunals or simply arguing or, worse, not speaking to each other. 

Con-Sent ADR mediators or specialized lawyers outside Con-sent can learn about how to avoid disputes arising in the first place by entering into a Shareholders Agreement.

Businesses are complex, dynamic organisms, with plenty of opportunity for conflict to develop over a range of issues, and between a range of players within this organism. A business with family members adds another level of complexity to an already complicated system. Elements of family businesses that make them somewhat different from other businesses are also the elements that are at the core of classic family business disputes. 

What can occur in a family business is that family members who are either not capable of executing the duties of a certain position they were given, or are not interested in following the plan that was laid out for them as a member of their family.  Another classic family business conflict issue is the issue of succession. This conflict can exist on two different levels: one referring back to the issue of capability or rather the belief or disbelief of the company team that the candidate for a management role is the best choice, and the other referring to the potential conflict between siblings or other family members because they were not the choice for a leadership role. The vying for position and the conflict that arises can have a very negative effect on the day to day functioning of a business, impacting everyone around it. 

Con-Sent ADR mediators are very much aware of the pros and cons of family businesses. They always try to make a distinction between “familiness” as a competitive advantage in part specifically because of the love, trust and past history of “people who know each intimately-almost telepathically.” Conversely, if the dynamic of the family system is negative, the “spillover” can be dangerous to the success of the business. 

Because there are at least three possible causes of conflict within family businesses, namely content issues, identity issues and process issues, a mediator should always be alert because the need to addressed in a different way. Con-Sent ADR mediators are trained to make that distinction.

Stakeholder management supports organization's strategic objectives by interpreting and influencing both the external and internal environments and by creating positive relationships with stakeholders through the appropriate management of their expectations and agreed objectives.

Contemporary or modern business and project practice, favors transparent, honest, and open stakeholder management processes. Recent developments in information technology and social media have made impact via mass media even more effective. Not in the least because of all the transparence, it is not in the interest of any stakeholder within businesses, organizations, or projects, to be publicly in a dispute and/or in a classic dispute resolution process.

What could prevent an escalation, are stakeholder agreements. Stakeholders agreements is a collection of agreed decisions between stakeholders. This may be the lexicon of an organization or project, the values of an initiative, the objectives or model of the organization, etc. These should be signed by key stakeholder representatives. The principles of mediation and even mediation itself when a dispute occurs between two or more stakeholders, will serve in principle all the stakeholders interest which are involved better than any conflict escalating  procedure, i.e. a court-case.

Con-Sent ADR mediators are experienced in guiding stakeholders in determining what between stakeholders should be discussed to prevent a conflict and when a conflict nevertheless occurs, how to deal with it.

 

PUBLIC AND INSTITUTIONAL MEDIATION

Public and institutional mediations are the mediations in which one or various parties are a public authority or organization (State, government , local authorities, international organizations, civil society…), as well as mediations in which a public issue should be dealt with. 

Public and private partnerships (contractual and institutional) by which a public authority calls on to private providers to fund and manage a public service can also generate conflicts with the users, but also between the public authority itself and its business partner

 

It is a particular area of expertise where concur the requirements of the public service with those of profitability inherent to all businesses.

 

In a context of crises, budgetary restrictions, transparency requirements, and pressures can be increasing and end in the situations of blockings. Mediation can allow to ally various strategies, to move forward by collaborating while being innovative and competitive.

Within the framework of the corporate social responsibility of companies, as well as the initiatives of the United Nations (initiative Global Compact, the objectives of the millennium) or international and European organizations and public authorities, sustainable development underlines the increasing interaction between business operators, governments, the civil society and the populations.

Particularly, within the framework of projects of development, projects of construction, environmental projects, it is more and more necessary to integrate, as a preventive  measure or in the amicable resolution of the disputes, a constructive dialogue around themes such as: i) human rights and business, ii) human rights and sustainable development, ii) men/women equality and discriminations. 

The facilitation of the dialogue allows to conduct needs analyses and conflict analyses as a preventive measure to have a systematic analysis of a project allowing to anticipate crises and potential conflicts, hence maximizing the strategies and the adopted solutions.

During the projects when conflicts arise, mediation enables also allows to restore the cooperation between the various actors by allowing them to find a common language through which each actor will express its needs, interests, priorities and constraints, so that together they find the appropriate solutions. 

The facilitation of dialogue, as well as mediation, allow to act cooperatively on large-scale projects, so making possible the spreading out of sustainable development policies. 

Facilitation of dialogue enables to conduct collective mediations in contexts of management of transition, strikes, restructuring and situations of change.

It is a question of restoring of the flow in the discussions to avoid the situations of blockings leading to the crystallization of the balance of power. 

Collective mediations can be led in public or privates companies, within communities, between a population and a public authority, and within communities.

Capacity building helps to act upstream by raising awareness on the conflict and in its dynamics, on the different tools for an effective and nonviolent communication, with the aim of preventing conflicts by restoring leadership and autonomy for the within both the individuals and the companies to be more autonomous in the management of their conflicts. 

Intercultural dialogue within companies and within communities allows to consider consciously the cultural diversity as an enriching aspect, but also a source of conflict if we underestimate it. 

 

INTERNATIONAL AND EU MEDIATION

Con-Sent ADR holds a particular know-how on international and European questions.

All the conflicts related to freedoms of movement, to European law, to competition law between economic operators and individuals. 

All the conflicts related to contracts or international projects in which there are problems of international law and intercultural aspects

 

Specific services

 

  • All of Con-Sent ADR’s partners have extensive experience in training and coaching. Both generic as tailor-made trainings in mediation, collaborative negotiation and interest-based communication are available, a.o.:   

-       Professional trainings for lawyers, public organizations and corporations

-       Coaching of managers and team leaders

-       1-or 2-day in-company basic mediation

-       ..