Maritime Mediation and other ADR systems. The mediation techniques and tools at the service of the general interest of Justice
We wonder if the act of conciliation – as we understood it in our judicial system – and the preliminary hearing act, which attempts a transaction between the parties, being sometimes effective in agreeing to a transaction or terminating a controversy, presence or lack of an adequate structure to encourage those parties to reach the covenant (as such, schemes are designed). If the aim is to help stakeholders/parties to reach an agreed upon solution, these events or acts appear not to be sufficiently regulated or jurisdictionally completed. This is what we think is happening: they are devoid of a legal soul catalyst component that allows the setting of an agreed solution. They needed the legal institution of mediation (particulary, the maritime mediation), an informal procedure in which the mediators’ team leads and facilitates the parties to the composition of an agreed upon commitment.
The apparent lack of jurisdiction and arbitration in Law and Equity, have been heaping through mediation techniques and tools brought in from outside areas than the legal world, such as psychology. In this area, advances in the understanding of human behavior can become amazing. Other knowledge and interdisciplinary areas intersect and currently cooperate with the the many other disciplines, such as, eg, the behavioral marketing business knowledge.
Civil and commercial mediation, and of course, Maritime Law Mediation, are private mediation areas in which the process facilitates to the protagonists (which should not be forgotten are natural or legal persons represented by that) a path for solving their problems. It is by positive dialogue and understanding that the parties could be taken from their opposite positions to the field of common interests, in which they could try to reach an agreement in maritime mediation. It is in this way that the mediator should build bridges between the parties so that they will come to an area in which they will be able to arrange an agreement, to do so, without of all negativity.
One of the best tools of the mediator in maritime mediationis, definitely, empathy, which will be transferred to the parties. The maritime mediator has to have the ability to bring the parties to an approach during the process in an optimistic animus – leaving behind them all sorts of accumulated negativity created until arriving to the maritime mediation. Thus, the parties, with a convergent attitude, will bear in mind the alternatives they have outside maritime mediation only as these are: just other real alternatives. The mediator has to pay attention at all times, and be flexible and non-coercive, very patient and not to feel uncomfortable with his own silence. These are just some more of the skills that have to be considered when one wants to be named a ‘good maritime mediator’. Only leaving back divergent aptitudes, being open minded and targeted correctly applying the expressed tools and techniques, the creative alternatives will finally emerge to cover the interests and the common benefits of the parties.
Maritime mediation, correctly exercised, serves as an alternative dispute resolution form (ADR). On the other hand, it is evident that there are more ways to solve conflicts, in particular those which are based on adversarial principles – as are court or maritime arbitration proceedings. Both are based on objective criteria (such as Law, Justice and Equity) and in subjective ones (confidentiality, impartiality, business interests, economic needs, the value of time and effort spend in such a competitive market, the control of the solution or the value we place on the quality of life and health, which usually are badly deteriorated during the confrontation). Moreover, we can assure that maritime mediation goes even further with its appropriate methodology: during the maritime mediation process, present and future relations between the parties will be improved and even redeveloped, helping them to get on with their lives and shipping businesses.
If the parties get a priori a mediated agreement, perfect (everyone wins). If they do not, their positions and emotions will not be misunderstood in the least and will be much closer from that moment on. They might be close to a total or partial agreement, far away from inflexible positions and in the right direction, greatly increasing the chances of a good understanding in future negotiations. Even arriving to a court trial, ‘they may not have burned all the vessels!’.
It is the job of the maritime mediator to make sure the parties are aware that, through their efforts, they have tried by all means possible to reach a satisfactory agreement before going to court or to arbitration to ask for a legal solution. In very few occasions, the deal comes to an end in the weeks following the mediation process due to or through the reconstructed dialogue between the parties.
Unlike the maritime mediator, the judges are bounded to formal processes and they cannot manage the dispute in a subjective plane. In addition, they do not have time nor proper tools for it. Their task is to judge based on objective criteria of the Law and the tools and financial resources of the courts are limited. We should demand to give them a hand and, at the same time, solicitors might provide of information to our clients about the possibilities offered by the maritime mediation process, before filing the claim.
For all these reasons indicated we predict a bright future to the maritime mediation process, which – sooner than later -, may be highly recommended by all operators in many cases before going to maritime arbitration or judicial courts. Our Spanish Legal system allows our judges and magistrates, as has occurred in many States of the USA many years ago, to discretely refer certain cases to mediation – within its competence – which have been initiated in their tribunals (when they considered to be appropriate). It will occur sooner than we can imagine today. We understand that this brief maritime mediation procedure will become the filter that finally guarantees the meaningful access to the effective judicial protection of the defendant, with no delays for them or excessive costs to the rest of the community.
There is still no widespread culture on mediation among the legal practitioners. The Justice Administration machine have still to understand that court costs which might be saved, has to be applied on mediator training programs and in the promotion of this new alternative procedure. It is also true that to promote the implementation of maritime mediation and its development, the recent publication of the Act 5/2012, of July 6th will be of particular importance concerning mediation in civil and commercial matters (BOE, 162, of July 7, 2012). Now, the maritime mediation process is connected with the courts’ processes. It is expected that entrepreneurs and professionals (include maritime mediation clauses in their contracts) and, in particular, coordinating with judges so that the see the value of promoting maritime mediation as an alternative method that enable the effective judicial protection of the fundamental rights of the parties and citizens (secc. 24 Spanish Constitution). This is something that some judges have realized in Madrid and Barcelona courts. In this regard, the Board of Judges of First Instance of Barcelona ruled out in favor of mediation knowing that: ‘it must be given to it the opportunity to attend conflicts whose solution do not pass for a legal decision and when we see that there may be other possibilities that our best judgment’.
It is recently desirable that the introduction of this complementary conflict resolution method creates a closeness between the courts and mediation centers. It may exist between them easy communication systems, direct and fast (which, e.g., allow them electronically reports regarding the initiation and the completion of the mediation process).
Maritime mediation in the legal field: international legal history
Once again, the Anglo-Saxon Legal system took the lead in this matter. In the U.S.A., the government began to put into practice in the courts various ADR programs almost half a century ago, allowing the community to have access to the arbitration courts and mediation centers (some of them specialized in maritime mediation). Courts were rapidly connected with these institutions, and especially giving judges the power to refer any matter to maritime mediation or arbitration – so warns a sector of the dominant doctrine in mediation, led by Prof. Dr. James J. Alfini from Law School of the University of Florida – hundreds of thousands of cases have been satisfactorily resolved, thereby favoring the entire community. The American lawyers associations (the American Bar Association and others) quickly focused their sights in mediation and this, with its informal techniques and procedures so different from legal ones, captured the imagination of many lawyers throughout the U.S.A. (analytic skills are common in lawyers and mediators). However, the Supreme Court, due to the kind of issues and cases they are required to know, prefer to bet in any case for arbitration, a process more formally regulated.
The English Legal tradition, established in the Common Law (which came forward over 100 years for all European feudal legal systems), as well as on the principle of Equity (which prefer to bear in mind the intention that the form, not tolerating the existence of unrepaired grievances and not permitting excessive delays during the process), currently allows the judges to know what the true intentions of the parties are after the dispute started. To do this, a questionnaire is used by the English judge that is then passed to the parties after the answers of the complaint have been received from the defendant. With such a written questionnaire, similar to our previous oral audience, any information is collected separately from the parties that may help the judge to appropriately allocate the procedural avenue to litigation. The questionnaire responses help to focus the objective and the process can be started; the specific claims of the parties, the areas of expert knowledge or materials that are to be dealt with in it, and what is more relevant, is required for the litigants to clearly respond if they wish for a prior suspension of the procedure for a period of a month while they explore in any other alternative extrajudicial solutions (in a mediation, arbitration or in one of the mini-trials). Therefore, there is a clear jurisdictional support to the use of alternative dispute resolution, especially since it is one of the primary objectives of the Civil Procedure Act 1998 of the United Kingdom.
Cultural changes occurred in 1999 with the Woolf Reform. Since then the alternative use of mediation has being recommended by Judges and Magistrates in the UK. Some prestigious Judges among others, Lord Justice Mummery, Lord Justice Jacob or Magistrate Wilson, have been explicit in promoting the use of experts and surveyors to help the process of civil mediation. For his part, Sir Anthony Clarke (Master of the Rolls, President of the Civil Division in a Court of Appeal, competent in Maritime and Admiralty Law cases), in his conference on ‘The Future of Mediation’ presented in May 2008, stated that: ‘(…) ADR in general and mediation in particular, must become part of our litigation culture’. On one occasion, Judge Lightman ended one of his speeches saying that the message he was intended to transmit were that: ‘(…) has been given a chance to mediation as soon as possible before the legal costs rise. The incidence of these costs may be the biggest obstacle to its success. In litigation, there is only one winner and in general is for solicitors’ fees, as well as for the legal costs of litigation, by which litigants usually go through the judicial or arbitral proceedings for an extended period (…). The loss of a night of sleep is often a high price to be paid in these cases; an additional cost of litigation legal professionals and also the parties forget or underestimate too often when taking the decision to go to court’.
It is unquestionable that with maritime mediation everyone can be a winner, the costs may be low, the result can be achieved in a short period of time, and the personal and professional shipping relationships can be recovered. Maritime mediation is not a universal panacea; it has limitations and is not always applicable. In the opinion of the legal doctrine, the solicitors or counselors who lightly rejects the ADR methods without conscience, is inviting the other party to sue him for negligence [Dunnett v Railtrack (2002) CA, and Halsey v Milton Keynes General NHS Trust and Steel v Joy and Halliday (2004) CA, cases in which the winner was condemned to pay the proceeding costs for previously not attempted a deal in mediation].
This Anglo legal and practical attitude is in favor of boosting one last effort to the agreement (which prevails in other countries other than the U.S.A. and the UK), fortunately in this case is easily transferred to the countries of Civil Law as in Spain. The premises for the implantation and development of mediation in general and maritime mediation in particular are coincidental in both Legal systems, Common and Civil Law. What is more curious: in Latin countries, although they have drawn from the sources of Roman law in which the action and the process were central, feel comfortable with informal procedures in which the openness of mind, creativity and optimism play a fundamental role.
Types of mediation used in the resolution of civil and commercial disputes. Evaluative mediation v. facilitative or collaborative mediation in Maritime Mediation
Mediation focuses on the ultimate goal of reaching a settlement of a dispute. This orientation, rather than seeing the conflict as a conflict of interests and needs, should enable us to trace a path over which the parties will discover that they have common interests and ways to satisfy themselves. It is known in mediation as ‘to try to increase the size of the pie’.
An approach of this kind does not mean the specific maritime mediation process can be divided in one negotiation founded and in one based on analytical therapy. Absolutely not. The choice would lead the mediator – in the way of evaluative negotiation – to state its substantially in legislation and only in possible solutions that he gives, trying to achieve the agreement criticizing the costs of the legal system, its inefficiency and unpredictability. In contrast, mediators opting for use of purly therapeutic mediation mode would claim for their substantive experience in managing interpersonal relationships, focusing on the problems of the parties and criticizing the legal system in their tendency to ignore the underlying emotions and to destroy existing relationships.
There is another orientation born in New Zealand, the narrative mediation, which presents a new efficient approach for the resolution of conflicts. This mode of mediating suggests that reality is constructed from the conversations with the parties and other participants in the mediation process. The mediator, initially with greater presence, helps the parties in a new narrative about the conflict, performing a change in the context of the controversy leading them in order, from the divergence to the convergence, that they might finally resolve their problems alone and in a virtual mutual collaboration. The mediator, therefore, based on this new reality – without the conflict of the past history of the parties – would reach an agreed outcome.
Prof. Dr. James J. Alfini has come to classify pure negotiators or evaluating mediators into three distinct categories: thrashers, bashers and hashers. The thrasher mediator – usually lawyers with extensive experience – often spend much of their time destroying the positions of the parties with a technique that discourages direct negotiation between them, ending the process with a suggestion own right, in his more realistic view. The bashers -retired judges regularly feed on their judicial experience and use past successes to battle the conflict – focused from the beginning to reach an agreed solution, trying to move the parties to choose between a number of original deals. Finally, the hasher, is more flexible, prefers to encourage the parties thto negotiate. They play more of the role of facilitators to the agreement, as orchestrators of the conflict or it soundboard. However, often willing to employ basher and thrasher mediators methodologies if they believe are necessary or appropriate for the particular case.
Instead of labeling the mediators as stated above or do it as bad-evaluator, inefficient–facilitator or rare-transformer, another sector of the doctrine (led by Prof. Riskin) states mediation has to be sought according to the needs of the parties in each case. The mediator should continually be listening and wondering to himself whether he is using the correct strategy, style, technique, approach or orientation in the process. In our case, during maritime mediation, the answers to these questions will make the mediator will adapt to the needs of the moment. Thus, with similar to this system, even the more evaluative mediator will have many moments of highly facilitative and collaborative interventions focusing on emotions or needs of the parties, empathizing with them, and truly understanding the real interests and perspective of the other. They gradually weave a network that brings security to the parties so that they can converge with certainty in their agreement.
Other modes aids to ADR in Maritime disputes: Early Neutral Evaluation (ENE), Expert Determination (ED) and Expert Evaluation (EE)
The resolution of a disputes inter parts can be made by alternative means different to mediation, in the strict sense, or arbitration.
In the Early Neutral Evaluation (ENE), a third party – usually a good legal expert specializing in a specific matter of the Law as Maritime Law is – make a nonbinding appraisal on the conflict at the request of the parties. His opinion may be used or not in a subsequent mediation process. Start proposals made by the evaluator focus only on the claims and legal positions of the parties without considering the underlying interests of them. Thanks to the proposed neutral evaluation, the parties complete closing their wounds reaching an agreement voluntarily on many occasions.
In contrast to the above, in Expert Determination (ED), the parties agree to appoint an independent third party to assist them in resolving their differences. Due to the extremely technical matters of these kinds of disputes, they are subjected in general to this system of conflict resolution. The expert is usually a professional (e. g., Marine engeneer or Master Mariner with a good knowledge in Maritime Law) of recognized prestige in the subject matter of the controversy it whom both parties place their trust. The evaluator, if he was initially required to provide or take an informed decision (a determination), will end the dispute. The resulting expert determination – quick, profitable and ultimately – could be in this case binding on the parties.
We are, therefore, in presence of a sort of maritime mediation in which the evaluator could end up having to make a decision ultimately determined within the framework established by the positions and arguments of the parties. If at the end of the deadline for conducting the maritime mediation process has not been reached, a collaborative agreement between the parties, they may choose to ask the expert for to provide the solution and resolve the dispute. With this system of expert determination, the parties shall ensure an agreement on the issues in the context of the maritime mediation process: they would play their cards of evidences in this process rather than in a trial. This ADR procedure has also been called, in general, med-arb, because even though it could start being a collaborative mediation, at some point the mediator may stop informing or reporting and proceed to evaluate and give advice to one or both parties in conflict before making his own decision. In this moment, the mediator simply and clearly has lost its impartiality regarding the weakest party. In fact, when the maritime mediation process becomes transformed into an maritime arbitration process (as originally was agreed by the parties), the resolution has the status of an independent award but not an impartial one. What must be emphasized is that this arbitrator – before mediator – has heard testimonials outside the maritime arbitration process and will obviously affect their decision in an undesirable way to one of the parties. It is for this reason that these type of arbitrated maritime mediations have been expressly forbidden in many international standards.
Finally, there is an alternative dispute resolution method, less invasive than the previously described, the Expert Evaluation (EE). In this manner of mediation, an independent third party (one technical Surveyor also understood in Maritime Law, in our particular case) agrees to review and technically evaluate the shipping or admiralty matter under dispute. It differs from the ED for their advisory only and not binding. This system is fast, low cost and sometimes highly recommended in technical conflicts. Often includes an examination of the documents submitted by the parties, as a basis to help them in their agreement, while allowing them to have a clear idea of each possibility and the probabilities of success/failure out of any kind of maritime mediation, either at a court trial or in a subsequent maritime arbitration.
If the issue is resolved with the help of an impartial expert’s report, this one will be attached to the agreement. Thus, the differences consulting services provided by the independent third party will be a part of it. If this third one expert is a person other than the mediator (ie, whether the expert was called to give his opinion during the maritime mediation process), we understand that under Spanish law there would be no objection. The agreement ending the dispute could be approved in court or enforceability coated once it is raised to public deed by lawyers or advisers or directly by the parties. If not, we doubt very much that the agreement not falling into contradictions just mentioned above.
Please, see also our blog article Maritime Law Mediation. Mediation in Private Law in general .