LECTURES AND PRESENTATIONS AT THE THIRD WORLD MEDIATION SUMMIT 2016
Isabel Álvarez Martin1, Virginia Cifre Berenguer2, Ricardo Gandarias Tena3, Inés Martin-Palomino Diaz-Cordoves4 , Virginia Cifre Verenguer,(Traducción).
For the third consecutive year The World Mediation Summit 2016, entitled “THE ART OF MEDIATION: DESIGNING OUR DESTINY.” was held in Madrid, Spain at the Faculty of Law, Complutense University, from 7th to 10th of June. Mr. Kevin Brown is the initiator, executive organizer and president of Mediation International. The aim of this conference is to promote mediation as a means of conflict resolution, bringing together professionals worldwide, in all areas related to conflict management, share experiences and emerging trends in mediation in the various areas in which mediation has its place as well as promoting Madrid as an internional mediation centre.
Key Words: Summit, Mediation, International, Conflict Management, Madrid, Alternative Dispute Resolution,
1 Lawyer, trainer and mediator. Member of the Association of mediation and pacification of conflicts, Asimedia, AMM (Madrid Association of mediation)
2 Lawyer, trainer and mediator. Member associations Amee (Association for mediation, meeting and listening), Asimedia and the Group Mediart.
3 Lawyer and mediator.
4 Graduated in history of art, mediator. Member of the coordination of the Complutense Institute for mediation and conflict management team (IMEDIA) and the own Master: mediation and conflict management (Universidad Complutense de Madrid); Member of the Association Asimedia.
* Authors have been presented in alphabetical order.
TUESDAY, JUNE 7, 2016 3
WEDNESDAY, JUNE 8, 2016: PRE-CONFERENCE WORKSHOPS 3
Simultaneous workshops 3
1.Organizational mediation. 3
2.Workshop on construction of attitudes and interventions from the systemic mediation. 3
3.Taking advantage of the power of an expert mediator. American Institute of Mediation. 4
4.The offender who becomes a victim.-restorative justice. 5
5.Mediators without borders. Collaborative processes: the intersection between the communities’s needs, the interests of the companies, the responsibility of Governments and socially responsible development. 6
6.Intrajudicial. Challenges to criminal justice and the peaceful resolution of conflicts. 6
7.Priorities, intentions and perspectives.. 7
8.Construction mediation. 7
THURSDAY, JUNE 9, 2016 8
Opening ceremony. 8
1.Roundtable. International organizations. 9
2.Mediation: a tool to restore peace and democracy. 10
3.United Nations diplomats. 11
4.Judges and justice. 12
FRIDAY, JUNE 10, 2016 14
1.Medical-mediation workshop: mediation in health care. 14
2. Sport mediation. 15
3. Community/police/Judicial mediation. 16
4.Mediation: Global recognition as a profession. 16
5.Opportunities for mediation in health contexts. 17
6.Conflict Resolution Online. 17
7. Designing our destiny.. 18
8.Workshop: promoting mediation; the more difficult subjects.. 18
9. Roundtable discussion: Spanish experts.. 19
Closing ceremony. 20
TUESDAY, JUNE 7, 2016
The first day of the Congress was devoted entirely to a meeting of IMI (International Mediation Institute), a non-governmental initiative based in the Netherlands, interested in implementing transparency and high standards of competence in the practice of mediation in all fields of mediation at the international level.
WEDNESDAY, JUNE 8, 2016: PRE-CONFERENCE WORKSHOPS
The welcome speech was delivered by Ruth Sirman, member of Mediation International, Kevin Brown, President of that institution and member of IMI and Emilio Navas, member of IMI and AMM. They explained the programme activities (workshops and conferences) that would take place during the three days of the Summit, as well as the activities carried out on Tuesday, June 7 by the International Mediation Institute.
1.Organizational mediation. Dr. Deirdre Curran (Ireland), Treasa Kenny (Ireland), Margaret Bouchier (Ireland)
The first workshop in the international room was Organizational/Workplace Mediation (organizational mediation), carried by three researchers from Ireland: Dr. Deirdre Curran, Treasa Kenny and Margaret Bouchier. Dr. Curran directs a research group on organizational mediation at a national level at Kennedy Institute, and Margaret is a founding member of that research group and part of the research team that is currently working on a project of the MII (Mediator´s Institute of Ireland). This project investigates the competencies and skills of effective mediators in work centres, project in which Treasa Kenny is also involved.
They explained their research work and practice of mediation, pointing out the advantages of mediation as a form of conflict resolution, and stressing that the focus in the investigation has gone from being purely theoretical to practical. And thus, the starting point of the research being conducted, is a community of practice and learning with key areas such as, among others, mediation regulation, analysis of costs and benefits, trade unions and organizations, ethics in mediation, the barriers to it…She also pointed out that the objective of this research is to position Ireland as an international reference in research on organizational mediation.
2.Workshop on construction of attitudes and interventions from the systemic mediation. Antonio Tula (Argentina), Emilio Navas (Spain).
We enjoyed the art of mediation as implementation of the systemic model. The parties and mediators observe each other what is happening to our surroundings (“when I look at it, he observes then I look at it. Both are in mutual observation. By observing their responses to my comment… I see myself in their remark”).
He explained mediation as a system clock, “a system of elements or components directly or indirectly related in a casual network, each component is related to at least ome other, and is more or less stable within a certain period of time”.
The clock represents energy (second hand, minute hand, and hour), the protection box and the outside world. The power of mediation is communication and interaction with each other at the meetings with the mediators and the parties. The system limit is the frame of the work. For Tula mediation as a system is structured on the interaction of subjects with each other observing: parties and mediator, we are subjects in mutual observation, the mediator is not in crisis and generates options and outputs while the other parties are in crisis and conflict.
The power of mediation is communication and interaction with the other, creating creative reflections. Quoting Marinés Suares, said that we stabilize the narratives that bring and with active listening we generate reflexive processes.
In this system the limit is in the protection box, allowing you to make an analysis, generating confidence and framing of the principles of mediation work, mutual respect for this reframing helps us to organize the interaction.
He reflected how from the systemic observation works with uncertainty and the hypothesis, the theory is clear, but not so much in each specific case by pointing out that the inclusive looks are important for this reason, systemic, NLP and constructivist. Creativity comes from looking at the options of parties, epistemology enables us to see and expand the individual dimensions, lawyers are integrated as systemic advisors and the mediator takes the role of technical integrator as a subsystem.
3. Taking advantage of the power of an expert mediator. American Institute of Mediation. Lee Jay Berman (USA), Ana Sambold (USA)
The workshop, Harnessing the Power of the Master Mediator (taking advantage of the power of an expert mediator) offered us a masterclass on different techniques and strategies useful for all mediators.
They began their presentation with a few questions that invited us to reflect: what Leonardo Da Vinci and an expert mediator have in common. Multi-talented, open-minded, curious to learn, communication skills… and how to become a skilled mediator and at this point they stressed the importance of, among others, a deep openness and receptivity of the present moment, self-awareness and personal work in order to integrate heart, spirit, and mind.
They explained the difference between the intuitive mediators and counter intuitive ones, the level in which they actually work (here they projected the famous picture of the iceberg), verbal communication skills as well as advanced styles of communication (Thomas Kilmann matrix), the techniques of verbal communication highlighting the flexibility and non-verbal communication techniques and giving a few brushstrokes of neuro-linguistic programming.
They concluded the workshop with a practical exercise on prospects, prejudice and impartiality in mediation.
4. The offender who becomes a victim.-restorative justice. Guillermo Bendicho, Juan José de Lanuza Torres, Mónica Cristóbal Álvarez, Andrés Vázquez (Spain)
Guillermo Bendicho commented that the victim approach is the epicenter of restorative justice and that the victims may react in different ways. It also stressed the importance of empowering the offender, but in a regulated way so there is a breakdown in the balance between the victim and the offender.
Andres Vázquez, insisted that criminal mediation works, that the results are proof of this and contribute to improving the criminal justice system. He also stressed that restorative justice shortens processes and place the offender in the way not to commit a crime again. Currently, he said, criminal mediation services volunteers who invest their time and money, conduct the mediation except in some regions like the Basque country and Catalonia.
He explained the procedure of criminal mediation in which the offender is called first through letter and attends an informational interview, accompanied by his lawyer, with the mediator. After this, if he wants to start a process of mediation, signs the informed consent. Once the offender has agreed, mediators will contact the victim, following the same process and, if agreement is reached for this purpose, both the offender and the victim go to an meeting. The victim comes to the process convinced that he is not the culprit and the offender will be advised by his lawyer with the message(s) that have to be transmitted The mediator helps change the perspective of the two parties. Thanks to criminal mediation, the offender has the opportunity to correct the effects of thi parties criminal actions, recognizing facts and repairing the damage and the victim, at the same time, is heard, and if they so wish, mediation will end by signing an agreement.
He indicated that victims can be classified into four groups:
First group: innocent victim, there was no provocation or other form of participation in the crime other than being the victim.
Second group: the victims have collaborated in the action and there is a reciprocal culpability.
Third group: victims who comment on the action. There are many mediations with serious pathologies, and they force us to close them because they don’t know what affects them and their consequences.
Fourth Group: victims who abuse mediation and are handicapped by a deed committed by a third party and use mediation for the purpose of personal vendetta.
To complete the workshop and to provide a practical element, the facilitators performed a role play.
5.Mediators Without Borders. Collaborative processes: the intersection between the communities’s needs, the interests of the companies, the responsibility of Governments and socially responsible development. Elodie Van Sytzama.
Through collaborative processes, we can achieve benefits both for companies and for the needs of the community. MBB Consulting promotes mediation worldwide through multi-sectoral collaborative processes, introducing language and elements of the agreements reached in mediation. The agreements are useless if a collaborative attitude is not maintained after achieved.
Through their pro bono work, major challenges are addressed as it has happened with the Paris Summit on climate change. Governments cannot do it alone.
The question was raised of how to keep neutrality if one of the parties pay, coming to the conclusion by attendees, the importance of being transparent from the outset with the parties in order to resolve the contentious issues before they arise.
She concluded the Conference by pointing out that the strengths that MBB have are their values, the relationships that have been created over a decade, and their collaborators all over the world.
6.Intrajudicial. Challenges to criminal justice and the peaceful resolution of conflicts. Maria Diez de Revenga, Javier Parra (Spain).
This workshop discussed intrajudicial mediation and the challenges and opportunities in criminal mediation, presenting a project that is being carried out in Murcia: Intrajudicial mediation of Murcia (UMIM) unit. This project was born in 2012, was applied as a pilot from 2013 to 2014 and in 2015 was adopted officially as a project of the Ministry of Justice. The background of this project is based on multi-door experiences of the American model in Washington: Multi-Door Dispute Resolution, division of the courts of the District of Columbia (USA).
The UMIM is a service integrated in the Judicial Office within the procedural common service of management, which centralizes the activity of mediation for all jurisdictions.
The terms of the Protocol and service operation is as follows: admission of claims transferred to the judge for processing, those organized through the service entrance SCP, SCP General of management of the procedure and SCP execution.
Judicial mediations are done through outsourcing in mediation institutes and external mediators. The UMIM mediation areas are several (family, criminal, civil, probate, mortgage, employment and litigation). They provided data on the typology of the conflicts, the percentage of agreements and level of satisfaction of the users. They also explained neutral mediation professionals for the region of Murcia, promoted by the European Group of magistrates for the mediation (GEMME) and consisting of a space of encounter and work of professionals interested in the promotion of mediation.
The conclusions of the project were positive and concluded the conference with the phrase “everything can be arranged outside the courts without ever entering them, because judges become thieves of others conflict”.
7.Priorities, intentions and perspectives. Ruth Sirman (Canada).
Ruth looked at several tools to use during mediation. If, before the mediation, parties can still work together, the best method is to implement strategies of conflict prevention. The warring parties tend to be occupied with blaming the other, ignoring its share of participation in what is happening.
She said that a system is comprised of the set of elements that comprise it and not isolated parts. If we only see the parts, we cannot see the problem as a whole.
She suggested we should invite those involved in the conflict, and have them share again their history and, in their narrative, not letting them speak of the other party, encouraging them to do something different than what is expected of them. She continued explaining that throughout their history three versions exists: mine, the other´s and what really happened. “We judge ourselves by our intentions, others by their actions or the effect their actions have on us”.
Finally, Ruth conducted a dynamic processto explain the different forms that we have at the time of dealing with a task and the conflicts this creates working as a team.
8.Construction mediation. Beatriz Rodriguez de la flor de Marcos, Maria Concepcion Rayon (Spain) amd Lorenzo Pratz (Spain).
During this conference, Mediation in construction, areas of specialization were discussed thoroughly, leaving in evidence the complexity of the context by the typology of covering conflicts and which in turn have to do with the large number of actors, issues, interests and situations that make them up. Also discussed was the legal framework covering conflicts in this area.
Beatriz de la Flor de Marcos began her lecture contextualizing in construction disputes: many linked professionals (developers, architects, commercial…), the complexity of the process (adversarial culture, many contractual relations, natural factors, very tight margins, very tight time schedules…). She said the types of most common conflicts in construction in Spain (claims for damage to the building, stakeout and easements, primary and consequential economic damages, certifications of work too, falsehood in official documentation of work, breaches of planning regulations, breaches of qualities…) and did mention that claims against the technology Court and construction of the United Kingdom between 1999-2010: (18% more construction defects, 13% payment problems, 12% design problems). She also spoke about the types of conflict in construction mediation included in the CGPJ Guide for the practice of judicial mediation.
Maria Conception Rayon explained the reason for the complexity of the issues in construction from a legal point of view, explaining that there are many stakeholders, including insurers and types of legal liabilities that may arise, the terms of warranties and the limitation periods to take into account, the proof of damage, the importance of the expert evidence, repeat or return action, and that judges are not specialists in construction issues. With this scenario why not attend mediation prior to litigation and/or after started (judicial trial). It is more frequent that businesses rely on ADR but pointed out that there is still much to be done. It is important that efforts by the institutions of the State implement ADR in order to increase and incorporate it in the Spanish culture,
In closing, Lorenzo Prats presented a proposal: “conflict resolution tables” (MRC), based on the “International Dispute Boards” which, not being mediation itself, can be included within ADR. These “conflict resolution tables” are institutions for the prevention and management of conflicts that builders can implement as permanent organs. They are composed by one or three members, which are normally set at the start of a contract to assist the parties to resolve possible disputes and controversies that may arise later during its execution. They are usually used in the field of medium- or long-term contracts. Globally this figure is more similar to arbitration, where its three permanent members make decisions or recommendations based on international standards, conflict resolution tables establish a regulation by which they regulate, administer and manage disputes. Within the International Chamber of Commerce regulation that is part of the design, organization and operation of these tables is about to be published. Proposed in Spain as a model to adopt, a hybrid between mediation and arbitration, adapted to the Spanish mediation regulation (5/2012 Law) and that its members not issued decisions. He said that the regulation in which the design, organization and operation of these tables will be framed is about to be published.
THURSDAY, JUNE 9, 2016
WMS 2016, the opening ceremony began with the Rector of the Complutense University, D. Carlos Andradas; D. Kevin Brown, President of Mediation International; Dean of the Faculty of law, Mr. Ricardo Alonso García; Dª Irina Vanenkova, Executive Director (IMI) International Mediation Institute and Maria Concepcion Rayon, president of WMS Academic Committee.
Mr. Kevin Brown, opened the ceremony expressing his gratitude to all the participants, explaining that the aim of the event was to create and disseminate the culture of mediation and of the profession worldwide, bringing together professionals and experts from all countries and a multitude of areas to share resources and to build bridges.
Dª Irina Vanenkova, offered her support. She said that the future has to be between us, that is the dilemma that we face every day and mediation is the way to make that change and to build on this basis. Forces should unite to take our profession worldwide. She highlighted the motto of Spain “(Plus Ultra, beyond) with these words I would like to encourage us to go beyond”.
The Dean of the Faculty of law, D. Ricardo Alonso, highlighted the quiet and unhurried style of Irina Vanenkova, Director of IMI, virtues and positive skills as President of the International Institute. He noted that more than 30 nationalities gathered at the Faculty and the cross-cutting nature of mediation which covers all areas where conflicts occur, missing the political mediation arena because of the political situation in Spain.
Finally, the Rector of the UCM, D. Carlos Andradas, expressing thanks to all participants, commenting that this summit, at the Faculty of law, which conforms more to prosecution, also opens the door to mediation and dialogue, commenting on the advantages of mediation where parties resolve their conflicts on their own, aided by mediators. He encouraged further progress in the dissemination of the culture of mediation.
1.Roundtable. International organizations. (IMI) International Mediation Institute (Irina Vanenkova, Executive Director); (AIM) American Institute of Mediation (Lee Jay Berman, President); (CIARB)Chartered Institute of Arbitrators (Richard Honey, Faculty); (MBB) Mediators without borders (Elodie Van Sytzama); (AIA) Association International Arbitration (Johan Billiet, President); (IDM) (Beatriz Rodríguez de la Flor, Member of the Commission of labour); Moderator: Florence de Vesvrotte.
Johan Billiet, (AIA) President Association International Arbitration. Lawyer and member of the bar of Brussels. He said that they participate from 2010 in the European Commission’s mediation activities. Focus on cross-border mediation where mediators can act in different jurisdictions, with the support of the European Commission, inviting us to participate in this organization.
Secondly Ms. Irina Vanenkova, Executive Director International Mediation Institute (IMI) pointed out that the students are our future and that universities help to create that future. She highlighted the programs of qualification programs, certificates and seals of quality, in order to recognize and give confidence in the quality of mediation and the mediator profession. To do this they have created professional certifications. The major objective is to educate society. The Director said that there is much talk of the problems in the fields of mediation, she prefers them to call them challenges.
From the American Institute of Mediation and training, Mr. Lee Jay Berman, said that the (AIM) was created to focus on the forefront in the use of methods and disciplines of other fields such as neuroscience, training of sales and tools to complete mediations.
Mrs. Elodie Van Sytzama member of mediators without borders (MBB), in her speech explained that conflicts and wars destabilize our environment and human lives, “we must concentrate increasingly, there is a large global immigration and it is very important that people take ownership of their own lives”. She mentioned the importance of the standards and guidelines for mediators, but not to institutionalize us because over-regulation could lead to the “death of mediation”. We are developing a large change of paradigms that encourage broader systems, where the people decide how they want to resolve their conflicts. It is important to highlight the role of women in the resolution of conflicts, we are all necessary.
Finally, Beatriz Rodríguez de la Flor, Member of the Commission of Institutions for the Dissemination of Mediation (IDM) commented that her organization includes 16 institutions, was created in 2014 as a group for the promotion of mediation and in Spain the trend has always been to fix the conflicts from the courts or the negotiation but currently mediation is becoming the priority to deal with conflicts.
Comments and challenges expressed with respect to mediation, seen from the attendees and participants, for mediation be fully accepted mediators must be good professionals and follow the same standards with an ethical and professional code with the ability to investigate and review, with reasonable fees for the mediators, they want to know if they can make a living with mediation. Standards, training, experience, institutionalization, is the new challenge. How is training and formation guaranteed? Is it important to look for markets and sell mediation? Is it important to note a key activity at each institution? Leadership without ego!
2. Mediation: A tool to restore peace and democracy. Juan Garrigues, Mabel González Bustelo, Rubén Campos, Elena Baixauli. Moderator: Laura Arranz. (Spain).
In the third speech of the day, Elena Baixauli, analyzed the social changes related to current situations of conflict and mediation in politics, making allusions to the classical Greece, the Sophists and Socrates. She said that to solve problems we don´t have to continue thinking the same way since, at the present time, there are five generations living together. We should generate new alternatives and change the paradigm and introduce mediation as a way of life. Political leaders should act with respect and solidarity, because this is not only an economic crisis but also a crisis of values.
Juan Garrigues, mentionedhis experience as a private mediator and participation in conflict resolution with several countries involved throughout the world, such as Syria, Mali and Libya facilitating dialogue between Governments, the UN and the armed groups, highlighting the importance of the negotiations to the disarmament such as strategy and policy. He stressed that the official negotiators do not include mediators.
Mrs. Mabel Gonzalez-Bustelo focused on non-violent armed conflict, citing Latin America especially Honduras, Venezuela and El Salvador, where the highest rates of homicidal violence is exceeding the thresholds of their wars. In her speech she said that the response of Governments is to militarize, which eventually leads to civil war. The local experience of mediation carried out in Medellin, with results to minimize violence and periods of truces, have achieved that there is less violence and even periods of truces, non-professional local mediators, carrying the mediations in secret, remain in isolated episodes since they cannot learn from one another.
Rubén Campos, as an expert in the areas of Asia in non-violent political movements, spoke of the Club of Madrid (www.clubmadrid.org), which carries out missions led by former heads of Government in areas with no conflicts working pro bono. The key point is that they are people who generate confidence. They try to search for meetings between leaders in conflict in a third neutral country in order to build trust. They start with very small goals showing some agreements.
This type of mediation is requested occasionally by their own Governments, but it is more usual that groups that are committed to change ask for it.
3.United Nations diplomats. Ambassador Danko Zelenika: Bosnia & Herzegovina; Nini Loseliani Sharmazanashvil: Georgia diplomat; Honorary Consul of Cyprus in Sevilla: José Carlos Ruiz-Berdejo and Sigurtà. Moderator: Santiago veil Antelo, Director of the diplomacy magazine.
The Bosnian ambassador Mr. Zelenika discussed his embassy’s participation in activities of various organizations and various projects, highlighting pacification as a continuous process, promoting multiculturalism, multi-ethnicity and diversity resulting from historical differences. He said that his country’s multiculturalism has always been “West meets East”. They have created a Council in which Muslims, Christians and Jews engage in different celebrations with great mutual respect.
He highlighted the essential role of the United Nations in conflict prevention and resolution. He also noted that recently the European Institute of Peace has intensified its dialogue and negotiations in Europe, and makes a great effort to promote mediation. He also spoke of the importance of cooperation in establishing mediation strategies and building bridges of cooperation and intercultural understanding.
Ms. Nini Loselani, from Georgia, described the great work being carried out in her country to adapt to today’s world and be competitive, highlighting that her country was 70 years behind other European countries. Although Georgia has no gas or oil, it is a country of remarkable natural beauty, natural resources (agriculture and mining) and major cultural and tourist potential and, although there are currently no mediation courses in the diplomatic school, she believes that future curricula will include this discipline.
Mr. José Carlos Ruiz-Berdejo, Honorary Consul of Cyprus in Seville explained the difference between diplomatic career consuls and honorary consuls, and the mediation efforts made by all of them by helping with their knowledge of the language and local customs when foreign conflicts arise.
He said diplomats are required to attend a year of training in various areas, helping them in their mediation efforts.
When asked what they thought about the future role of the military and the army in mediation processes, Nini Loselani Sharmazanashvil, responded that Georgia has the army at the country’s border and it is very important that it is peaceful and seeks dialogue alternatives. She said that her country´s army is now more modern and more humane, thanks to better training and development, and that that gives better results.
Finally, the moderator of the table and director of “Diplomacia” magazine ended the conference by highlighting that while the current name of the institution is Ministry of Defense it should be considered to change it for Ministry of Peace and Conflict Management.
4.Judges and justice: Mrs. Ana Carrascosa (C.G.P.J.); Judge D. Paul Gilligan; D. Julio Fuentes; D. Julio Banacloche. Moderator: Mª Concepción Rayon.
Judge Paul Gilligan, member of GEMME, said that, currently in the mediation field horizons are extended in meetings and conferences, discussing, among other topics, if the informative session should be compulsory and the costs payments for cases in which one of the parties does not want to attend mediation. Ireland is governed by customary law (common law), and has the lowest ratio of judges and very high legal costs that confers a special prominence to the mediation there.
Ms. Ana Carrascosa, lawyer of the Technical Cabinet of the Council General of the Power Court in Spain, commented that they were judges on an individual basis, and not its governing body, those who began to promote mediation from 2014, establishing that it was something essential from the implementation of the law. The CGPJ, sees some obstacles since the paradigm shift in society, which cannot be sued for something that is unknown, so it is important to start a campaign with leaflets and from the courts. It is also important that judges form together and this initial training center is in Barcelona, through training activities and workshops for all jurisdictions in the five branches of law and also in the provinces of Spain. Worried about the quality, work in two lines, through inspections and assessing how to create a system of mediation in different courts, at the same time study to validate quality criteria to refer cases to mediation, convinced that mediation is worthwhile. She noted as important points: to standardize the implementation of projects and to promote mediation in jurisdictions where it is unknown, such as labour jurisdiction, in places of Spain that have less presence, such as Castilla la Mancha and Extremadura.
From the Ministry of Justice, D. Julio Fuentes Gomez, Technical General Secretary of the Ministry of Justice, said that judges value each conflict that they have, and urge the best form of resolution, knowing that the Judgement does not resolve the conflict. Arbitration excludes the courts, but mediation is complementary to it. Judges are turning to mediation to avoid procedures, simplifying and speeding up the process (avoiding witnesses evidences, forensic evidence…), while allowing the parties to take responsibility in their own agreement, and may return or may not return to the judge to homologate it.
He highlighted some points to reinforce the role of the judge: forcing the parties to initiate good faith mediation; promote the idea of the agreement; consider how to strengthen conciliation with mediation, court hearings, after the citation, which starts in 2 or 3 months and this would be the work of the lawyers of the administration of Justice; recognition and experience to exercise and to refer cases intra and extra judicial with professionalism.
For his part, the director of the Department of procedural law of the UCM, D. Julio Banacloche, insisted that he is a convert of mediation for its restful effect, but that the jurisdiction does not provide that feeling. He is in favour of mediation in civil and criminal, but it is always parallel to the courts since, in his point of view and in the light of the current legislation, he doesn’t see intrajudicial mediation taking place.
He said that the great promoter of mediation is the CGPJ, but according to him, they have no competency because derivation is not referred to in the organic law of the Judicial power (citing article 560 of the L.O.P.J.). A legal way, that currently does not exist, should be set, although the Spanish law of Civil procedure (L.E.C.) collects the information of the parties about the possibility of going to mediation, (Articles 414 and 428 LEC).
In his opinion, “there should be no pro-mediation judges and this should be discussed, something that today is not there. Even if judicial mediation in the courts exists, it might distort the judicial decision”.
5.Ambassadors: Ambassador of Australia: Virginia Greville; Israel’s Ambassador: Daniel Kutner; Ambassador of Serbia: Danko Prokic; Ambassador of Slovakia: Vladimir Gracz; Embassy of Germany: Mr. Stefan Bantle. Moderator: Santiago veil Antelo, Director of the diplomacy magazine.
The representative of the German Embassy began his intervention by stating: “when the use of weapons starts it means that diplomacy has failed.” Increasingly diplomacy focusses on prevention and conflict management and experts offer their advice to bring positions closer and facilitate dialogue, in the hope that agreements can be reached and the country’s stability increased. In the globalized world we care about conflicts and we have to take responsibility. The refugee crisis is the result of the Syrian conflict and because mediation is important, there are initiatives to encourage mediation. All NGOs coordinate projects supported by grants, guidelines and information, and these organizations create platforms for dialogue and developing great peace projects.
Ms. Virginia Greville, Ambassador of Australia, stated that credibility is the most important thing. She explained that she is a diplomat trained in negotiation rather than a mediator, which are two different concepts and commented on their commonalities and differences in respect of empathy, understanding what the parties to the conflict want, persuasiveness and leadership and setting the limits of action. Everything is within an ecosystem and everything is related.
The third intervention was by the Ambassador of Slovakia, Vladimir Gracz, who began by saying that the political situation in Slovakia, which soon will assume the presidency of the European Union, is similar to that of Spain. In the globalized world in which we live, the “voter” has become a mediator and political parties must create a government. The Slovakian electoral vote was divided between 8 parties and therefore political parties were forced by voters to engage in dialogue in order to form a government. Finally a government of 4 parties was created, with all the related differences. This is the current trend and a global phenomenon. The voter served as a mediator and took action to resolve the situation. “If there is no will to reach an agreement, there will be no agreement; and instead of doing business with war why is it not done with peace?” he remarked.
Commenting on the situation between Serbia and Montenegro, he said the separation had not been easy but some arrangements for a referendum, which resulted in the independence of Montenegro, had been agreed.
It is important that the European Commission keeps mediation in mind. There are strong disagreements on how to solve the problem of migration. We should be a mediating country not promoting our opinions but listening to all the options and securing commitments.
Mr. Kutner, the Israeli Ambassador, stated that mediation has become a fertile field. He would not describe himself as an expert in mediation but defined it as the intervention of a third party to reach an agreement of some sort between conflicting parties. In his region and in relation to the Palestinian/Israeli conflict, they are in a period of preventive diplomacy to end the armed conflict. The United Nations was created as a mediator and plays an important role in establishing a ceasefire and the end of the war. Israel believes that direct negotiation is the only way to reach agreements. In 1991 in Madrid a process of bilateral negotiations in working groups took place and that was the starting point. Based on the objectives declared by each of the parties (where there is a will, there is a way), remote communication channels were opened, through which important ideas were raised in a way which was not public. This led to the Oslo agreements and to the signing ceremonies of 1993, which continue to drive the progress of negotiations between Palestinians and Israelis. Based on the experience in this part of the world, direct negotiation seems to be more effective in leading to the cessation of conflict and the ceasefire, which is why negotiations should be directly between the parties, if they want to be more effective. He stated that the Palestinians are determined to take it to international levels when it should rather be a direct negotiation between them and us, addressing the sacrifices both sides must make to reach real agreements.
FRIDAY, JUNE 10, 2016
1.Medical-mediation workshop: mediation in health care. Amparo Quintana García, Rosa Fernández, Miguel Ángel Moreno, Juanjo Hidalgo, José Luis Encarnación. (Spain).
Through role-playing, a case of a conflict between doctor and patient is represented in a clinic: a claim of a patient for a medical malpractice. It should be noted the likelihood and the didactics of the workshop were strong, which allowed a good learning.
The workshop closed with an explanation and detailed presentation about the elements that make up conflicts in the health care context.
In the majority of mediations we find imbalances, and the mediator´s work is to rebalance the parties so that nobody feels left.
In co-mediation, there is a collaboration agreement between the Bar Association and the Medical Association in order to form co-mediation teams composed by a doctor and a lawyer. Health mediation is one of the most important areas because we are all patients and users of health and, at the same time, the Health Organization is very complex and is full of interrelations. On one side, there is the health area and on the other the social-health area, the spark of conflict can occur.
It must take into account some characteristics; the implications of the environment, social diseases that may have a stigma, tend to be conflictual which can be lengthened in time, leads to a loss of confidence in the doctor and in the system…All of this has to do with very specific emotional topics.
They discussed how sanitary conflicts are addressed: face to face, in the Customer Service Department or through complaints, before the courts and courts of arbitration.
They also noted that most often conflict come from the different interpretation of the patient´s rights, welfare conflict (room heat, the sheet stings…) are very common. The right to information, privacy, access to their own history clinic. These rights causes real conflicts. The right to receive an explanation and an understandable treatment, since we have gone from an era in which no one had informed consent to a worldwide signed informed consent, which can bring many problems, and what many people don’t know is that informed consent may be cancelled.
The emotions of the parties are sometimes common, pain, death and disease affects not only the sufferer but also the family and others.
2. Sport mediation. Dr. Volker Hesse, (Austria); Juan Ramón Montero (Spain); Paulino Fajardo, (Spain); Aditya Shivkumar (India). Moderator: Marisa Santana (Spain).
Marisa Santana began the conference by saying that in Spain, from a year ago, sports mediation is a trend upward in the sports law and is one alternative for the resolution of conflicts.
Secondly, Paulino Fajardo, lawyer and Doctor in law from ICADE, joined HERBERT SMITH FREEHILLS, intervening in sports law in the field of civil liability and insurance. He is Professor of ICADE, Carlos III, and I.E.
Volker Hesse is an attorney and mediator, specializing in sports law, intervened in third place.
Juan Ramón Montero arose as a lawyer, legal advisor to corporations, managing partner of Montero, Labrador & associates.
The following questions were raised: why is ADR an appropriate method for resolving conflicts in sport? “Sport is competition and there is a prerogative that isn’t competitive in the legal sphere”.
How does the behavior of the athletes influence childhood and popular culture? “When we designed the culture of peace, it was extrapolated in sports culture reinforcing certain values that are very unique in sport”.
There are conflicts in sport, which occur within their own competition and conflicts that arise outside, in business and in the field of sport enterprise. In the field of sport mediation is used to avoid erosion of the relations, while in sport, it is also useful for the issue of confidentiality.
In elite sports there are international elements, different cultures, languages and this can be a source of conflict, mediators become translators and this is why mediation plays an important role in sport.
Agility, immediacy and speed are key elements in sport mediation. Another advantage of the sport is the relocation. In sports there are different skills; the unifying themes, clubs, etc. They need someone who can organize components to resolve the conflicts.
Another conflict area in sports is the labor area as is the relationship between athletes and employer is very peculiar, moreover the civil liability which in sport generates many problems.
FIFA has a panel of ADR that has 3,000 conflicts already resolved. There is an Arbitration Commission created by the Spanish Court of sports arbitration which can mediate and conciliate in the Spanish Olympic Committee.
What are the skills of the mediator? When one operates in certain sectors experience is needed, since sport has its own rules and its own understanding. In Switzerland, there are associations of mediation in sport requiring 200 hours of training.
Neutrality is very important but it is also important that the mediator knows the matter.
3. Community/police/Judicial mediation. Claudia Maffettone, (Morocco); Christophne Imhoos, (Switzerland); Karolina Mania, (Poland). Moderator: Yolanda Ramirez (Spain).
Christophe Imhoos explained that, in Switzerland, since 2011 there was a unification in civil law but actual mediation is not being used regularly in civil conflicts. Mediations are offered by telephone. In Geneva they defend mediation and there are big hopes for the favorable development of mediation as a possibility for conflict resolution.
Karolina Mania spoke about online mediation. This term covers all conflicts that are used in online communications. It is one of the best examples of ODR and is one of the best alternatives to ADR. E-commerce is widely used. It can also be done in other sectors, banking, family law etc. Consumer disputes are not personal. There is a European ODR platform available since most of the complaints were from the EU.
4.Mediation: Global recognition as profession. Beverly Tarr (USA).
She explained to us how to build a business mediation and the importance of being a man or woman to start a business of mediation. The individuals do not want to decide on their children in a trial. She revealed that their cases are resolved in two days and the importance of confidentiality: “what is said in the room stays in the room”. The mediator´s job is to ensure understanding of the process.
When starting up a business it is necessary to look at the market, the mediator must develop their own mediation style. It´s important to take into account that each mediator has a way to approach the conflict.
“In every business we need a bit of luck and you can earn money selling your own personality, being credible.”
Regarding advertising of our businesses, she emphasized the importance of changing the web at least once a month and choose the proper keywords in order for others to find it easily.
5.Opportunities for mediation in health contexts. Leticia García Villaluenga, Santos Bolado Narganes, Juan José Hidalgo Arroquia. UCM (Spain).
Leticia García Villaluenga, as Director of the Master: Mediation and Management conflicts UCM and the Institute for Mediation and Conflict Management (IMEDIA), made a presentation on the evolution and development of mediation in the University permeating through the form of pyramid organization training (master and courses to the personnel of administration and services – PAS – and teachers – PDI – senior members of the UCM), diffusion, through its conferences and mediation through its services: internal, external, students, and judicial. Finally with the investigation, through a project R & D+I with the San Carlos Hospital. Other projects with AECID, hospitals of the community of Madrid, doctoral thesis, interventions in primary care. Currently working on a project for Development Cooperation in Rondônia (Brazil) called “Itinerant justice”.
Stated objectives, structure and functioning, exposed a case that she is currently working on in the context of a healthcare institution. She described how the case goes forward and the actions taken on it until today, making it clear as to type of multipart conflict, complexity and multi-faceted conflict.
Finally she asked of the workshop participants to do an exercise, which consisted of three questions that were given to them, in order to make reflections and contributions on how to continue the case exposed, thus making the role of being a “reflective team”.
6.Conflict Resolution Online. Graham Ross (UK)
Spoke about on-line systems to manage conflicts, the law requires companies to use mediation online. In the Netherlands they have established a system for divorces, separations, marital and other.
A Californian legal technology company, helps lawyers, mediators and the parties, with a system that facilitates and helps to reduce the time and the results. Since all these efforts require much time, through models and a platform with icons, and very simple to manage. Those interested, depending on their cases and needs, can inform and orient themselves on what they have to do and how it relates to children, heritage, etc…
The Organization of Justice, submitted a proposal last year in California.
7. Designing our destiny. David Silvera (Israel), Noah Stein (USA), Christiam Lamm (Spain). Moderator: Silvia Landa Ocon.
David Silvera mediator in Israel, began the conference by placing, as an example the symbolism of the bear and the tree located in the Puerta del Sol and the coat of arms of the town of Madrid. He said that it symbolizes the conflict between the Church and the State in the past. From the point of view of mediation we must know the parties and each party to understand the other.
He said that Israel works from psychological principles, made reference to the example of the orange that we all know and explained that the mediator, has to meet the needs of each party through dialogue.
Noah Stein spoke second, from the USA, he is dedicated to the world of business, master in finance and negotiator in large companies, who develops his activity in organizations. He commented that, in the area where he works, being a facilitator is the key.
Christiam Lamm, closed the seventh conference talking about the evolution that is taking Spain mediation and how international experiences can help us to interact and also serve us as a guide. We must really adapt if we want to change our destiny, “Nothing is done without that until you imagine”. In organizations, objectives to reach are planned and then routes are developed.
8.Workshop: Promoting mediation; the more difficult subjects. Ruth Sirman (Canada).
Ruth said that in all the mediations that are carried out, the mediator learns something.
The participants were organized into groups to discuss the following questions:
1 What is in mediation that cannot be addressed?
2. What behaviors do we reward in mediations?
It is important how we communicate that we are mediators, because, little by little, together, we create in society an idea of what mediation is.
It is important to be honest and say the mediations we are doing or are not doing so we all know where we are. Those who have long been in mediation must mentor beginning mediators , sharing the reality of the situation and not what we would like it to be.
3. How do we feel about a mediation or a failed act? Here, we first discussed about what was a failure, since it meant something different to each of us. We face it or place the blame on the other?
4. In 10 years, what do we hope to happen to the profession of mediation and what do we think that will no longer work? and in 20 years? It is important to be honest and say the mediations we are doing or we’re not doing, so we all know where we are. Those who have been working a long time in the mediation should be mentors for those who begin, telling them the reality of the situation and not where we would like to be.
9. Roundtable discussion: Spanish experts. Trinidad Bernal Samper, Daniel Bustelo, Ana Criado, Carlos Giménez, Cristina Merino, Josep Redorta. Moderator: Emilio Navas. (Spain).
Mrs. Trinidad Bernal said that in Spain still there are more mediators than people who come to mediation, and there is an excessive judicialization of mediation, thus causing the risk of losing the freshness of the mediation itself, It is important to trust people to develop mediation as a culture.
D. Daniel Bustelo, explained that mediation has nothing to do with the law, which only has to regulate when there is a supplementary agreement. As speakers we are, each have our own desires and impulses, which may not be regulated by law.
He made an important distinction between judicial conciliation and mediation, in need of greater support. He said all systems are good, depending on the people, and so we must give freedom to people, giving up narcissism and we must tolerate differences. Judicial mediation might constrict this. Spain has made a beautiful journey and conveyed that what we need is support to judicial conciliation but also for mediation. The mainly purpose of mediation is listening.
D. Josep Redorta noted that, besides mediation, there are a large number of tools to solve conflicts. Mediators are changing and sooner or later, something will change in society. Professions are initiating processes of change, first on a personal level, we are incorporating new skills and, when the market is prepared, mediation will be incorporated in it. Today we already talk about relational justice, a new concept in line with the people. In Spain there is little research in mediation and it is now necessary to perform further research.
Da. Ana Criado said not to believe in judicial mediation. Mediators want to make money by mediating and mediation is where the market is. It should end the idea that it is the State that has to give us the money and focus on having professional quality, investing in our business, spreading what we do and also guaranteeing it with a seal of quality.
D. Carlos Giménez said that there are three routes to practice mediation: professionally (quality, rigor and gave an example), broadening the knowledge of mediation to non mediators (teachers, civil servants, etc.) and encouraging mediation citizenship through civic culture of conflict.
Da. Cristina Merino stated that mediation costs must be paid by the final recipients or grants.”Mediators must adapt to the needs of stakeholders and not pretend that they are those who adapt to us”.
At the conclusion of the summit, Kevin Brown expressed his great joy and satisfaction. He noted that the work that began in October, 2014, getting speakers with excellent personal and professional qualities had been a success. He also highlighted that this year, at the World Summit Mediation, more than 30 countries have been represented. All this work and success
encourages and motivates the preparation of the next WMS.
Thank you all.