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Mediation In France, Opportunites And Challenges

Mediation In France, Opportunites And Challenges

Is mediation in France getting any traction? There seems to be a pattern emerging with mediation in Europe – have we taken a wrong turn and what are the golden opportunities for budding French Mediators? Diana Paraguacuto-Maheo gives the inside track on Mediation in France and describes how she promotes mediation to her clients.

This is Part 1 of a 2-Part Interview, make sure you check the second half out, all about Mandatory Mediation in Argentina.

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Full Transcript

Aled: Hi everyone. My name is Aled Davies, founder of mediatoracademy.com, home of the hungry and passionate mediator and a place where new and aspiring mediators come and listen to experienced mediators share their hard earned knowledge, expertise and strategies. All the things that have helped them become effective mediators and build a successful mediation practice.

I get very excited about these interviews. I find them inspiring. I find them motivating. They encourage me to stretch my comfort zones, think differently, act differently and I hope you’ll be inspired too. I hope you will be inspired to stretch your comfort zones, think differently and take some lessons from this interview, apply it to your practice, go out into the world and build your own little success story and maybe come back here and share your story with my audience.

Okay, so two questions for todays interview. What would happen if a law mandated categorical attendance at mediation? That’s more or less what they’ve done in Argentina. Is it working for them and could it work anywhere else?

I also know we have an international audience on Mediator Academy and I’d like to know what’s going on in different parts of the world, so I’ll be finding out the current state play of mediation in France. How do you get started as a mediator in France? Where are the opportunities and what are the challenges? My guest today is perfectly placed to answer these questions. She was admitted to the Madrid Bar in 1999, New York Bar in 2004 and more recently Paris in 2010, where she now specializes in international litigation, arbitration and alternative dispute resolution. She served as counsel in international arbitration proceedings, held under the auspices of the International Chamber of Commerce, the International Center for Settlement of Investment Disputes, the London Court of International Arbitration. She has expertise in international disputes involving state entities as well as African, Asian, European and Latin American parties. She regularly advises clients on the drafting of dispute resolution clauses and conflict management systems. She’s a Fullbright scholar and of course a CEDR accreditated mediator. I’m delighted to welcome Diana Paraguacuto Mayu [sounds like 2:43] to Mediator Academy. Did I get that right?

Diana: Absolutely. Amazing.

Aled: Welcome, Dianna.

Diana: Thank you, Aled.

Aled: We met at a mediator networking event where you spoke very briefly and if I’m honest, you should have been the headline act rather than the act they bolted on to the end. Hopefully we’ll see more of you speaking, but you talked about your experience of mediating in France, but also gave more of a broader understanding of mediation in Latin America.

I want to start with hearing a little bit about you and what sparked your interest in mediation? How did you go from being a lawyer full time and moving to ADR and mediation? I know you’ve still got feet in both camps, but what got you interested in the first place?

Diana: I do actually continue practising a lot as a lawyer, however as a lawyer I do advise my clients on mediation as well and I really push them to adopt this alternative way of resolving their dispute. But the way I got introduced into mediation was actually through arbitration, international arbitration. When I was practicing international arbitration and drafting very long memorials on behalf of my clients, I started having the feel that I was not probably providing as much value as I thought or I wished for, for my client.

As you know, in international arbitration leads in an exit procedure or an ICC arbitration or even an LCIA arbitration, so submissions are really heavy, very long and require hundreds and hundreds of pages and the intervention of experts in so many different aspects. Sometime actually I would say when it was two or three in the morning, I was wondering if really we were helping our client get their dispute result in the most efficient way, because even if we won a lot of these cases, the client were not always happy. They say we’re not happy because the solution that the judge at the end, or the arbitrator at the end ordered did not finally resolve their business issue necessarily. Yes, they had for example the financial award, they were paid damages, but money was not all. It was business relationships that were distressed or totally destroyed because actually after an arbitration you usually don’t talk to your opponent anymore and you don’t work with them anymore.

There’s been delays in construction projects that you cannot recoup and a lot of mistrust. I found and I talked to my clients and I found that the level of satisfaction was not as I thought it was and it just made me start thinking about more efficient ways of resolving disputes and I discovered mediation and this collaborative way of finding a solution and that’s when I contacted CEDR and got trained and more and more and I saw, I could witness the added value of mediation.

At this stage, I want to highlight, I’m not one of these persons that thinks mediation brings the solution to all the problems. I think mediation is one tool among other alternative dispute resolution tools that we have available and I do believe that like a surgeon, we need to be able to pick the right tool for the right dispute. A surgeon doesn’t use a hammer if he just has to, I don’t know, take a mole out of your skin or something.

I do believe that in the next few years, the way we should approach mediation is less as an exclusive tool and more as one tool among many others that we need to master as well, like dispute boards, adjudication, many others, arbitration which can still be helpful and help our clients at different moments.

Aled: Okay, so as a lawyer representing clients, it sounds like you promote mediation to them. Suggest, ‘Look there’s a better way you can get more value from dispute, preserve relationships, maintain ongoing commercial relationships, litigation and even arbitration isn’t the way to achieve that. Mediation is or other less adversarial dispute resolution methods are.’ What sort of reaction do you get from your clients when you have those types of conversations?

Diana: I would say it depends. You need as a lawyer to be able to find the right moment to tell your client that the only way he knows either litigation or arbitration is not the right way for him. Usually my clients have a misunderstanding of what is mediation really or what are the other alternative mode of dispute resolution. They just don’t know, so there is a lot of explanation to be done. So you need to first understand that on their part they may not be ready to hear what you’re telling them and the risk here is that your client sees you as being maybe a weak lawyer because you don’t want to fight. You’re not the warrior that they were looking for and that’s problematic at a certain point. You really have to show a lot of empathy in a way and use the skills that mediators and good mediators have, which is empathy. You need to show, ‘Look I understand where you are. I understand you’re frustrated and that you want to use heavy weapons. But here is why I think you want the best results you could get.’ Then you say, you have to explain, ‘Here are other options that you might want to consider.’ Then you have to reassure them, ‘If at the end, you as a client, you want to go to war, here are the consequences, but I’m ready to go with you along, but I will have told you what other options are there and why I think they are better for you’. But, and it’s risky. You need to make sure that the client that is in front of you is ready to listen to you, because if you don’t have their attention, they’re way too emotional, then you won’t get anywhere.

Aled: Okay, so you’ve triggered a number of questions in my mind, now. First of all, I love the metaphors that have been weaved into your narrative. You talked about clients wanting a warrior to go to war and deploy heavy weapons. It creates a real vivid picture of litigation and clients wanting that sense of protection. Trusting that their legal representative is going to fight on their behalf until the last person is standing. That’s quite an interesting image in my mind. You talked about finding the right moment and clients having a misunderstanding of mediation and I wondered whether, so two thoughts in my mind. One is, clients in what market, are there clients that are predominately French? Are they international? Are there some clients that have more understanding and appreciation of mediation or less?

I’m asking that question because the people are going to be watching this interview are mediators like you, like me and wanting to understand how they can be more effective, be busier as mediators. In order to do that, how do they either strike up conversations with particular clients, potential markets? How do they go about educating, reducing these misunderstandings that people have? So….. Yeah.

Diana: You’re totally right. I think when I speak about clients, it’s unfair because clients are very different from one another and as you said, there are different markets. My clients are mostly international, but I do have to admit that the difficulties that I find is usually more probably with French clients or clients from continental Europe at this stage for now, because mediation is not as prevalent. The use of mediation is not as prevalent in France or in continental Europe as it is in Anglo-Saxon countries and again there is more work to be done to explain what it is and mostly to explain what it is not. Most of those clients do have an idea, they think they know what mediation really means. To them it’s not necessarily satisfactory. In reality, when you delve into the debate and the explanation, you quickly understand that it’s just not clear in their mind what mediation means. They don’t understand what it is.

Aled: Okay, so is it the responsibility then of mediators, to be educating lawyers in France and continental Europe to help them understand it better so that they are more informed when they’re having conversations with their clients. So that in the right moment, you talked about finding the right moment so that lawyers have the skills, the knowledge, the awareness to be alert to those right moments in the conversations with their clients. You say, ‘Look I know you want me to deploy the heavy weapons and fight the battle for you and I think there’s another way of achieving more, getting more value from this.’

Diana: I do believe that one tool for mediation to succeed at least in France and I’m probably sure elsewhere is to educate lawyers, because lawyers in France don’t all know exactly what mediation is either. If they don’t know what it is, they cannot present it and explain it to their client and they cannot recommend mediation when mediation could be very useful to the resolution of a conflict. In France, we are working at the bar at putting in place a school for lawyers where we would not only train them as being mediators, because right now in France, we don’t have enough mediation for all the mediators that are out there.

Aled: That’s a familiar story.

Diana: However, we put a lot of emphasis on developing the mediation advocacy skills. That’s probably the core of our programme, so lawyers can accompany and later recommend – accompany their clients through mediation or through the, sort of, choosing what alternative to litigation there is and then if mediation is the right tool, then go to mediation. Accompany properly their client to mediation and of course prescribe mediation to mediators, which we have a fair number of mediators here in France.

Aled: Okay, but most of them are unemployed.

Diana: I think that at this stage in France, we have very few mediators who do mediation exclusively. We have a lot of people who like me, continue being a lawyer and mediator and try to develop their mediation practice and as the mediation practice develops, maybe make the choice to become exclusively a mediator or a mediator arbitrator. Very few leave from their exclusive practice of mediation. I would say probably very few. I don’t want to venture into a figure, but it’s low.

Aled: Okay, so one of the challenges in France is education. Parties, clients don’t really understand what mediation is, but their lawyers aren’t in much of a better place to be able to advise them on anything other than litigation.

Diana: Yes, I think there is a lack of understanding from lawyers because they also see mediation as a sign of weakness and mostly a waste of time. I’ve heard that expression many times. They feel that they do mediation every day. What does that mean? Does it confusing mediation with negotiation? They don’t understand the added value of a third party who is impartial, neutral, with facilitative skills and could help parties get closer and find a constructive solution together. There is this [inaudible 00:18:42]. There is secondly the problem of the fear. I think that lawyers in France are still fearful. Fearful of something they don’t know, mediation and fearful of losing probably some of the case they are handling because of course mediation requires at first we think much less work, than a litigation that could last for two or three years.

Aled: Yeah. I remember going to a debate many years ago in London, debating that ADR stands for Alarming Drop in Revenue.

[laughter]

Diana: Here we go. Common fear.

Aled: Exactly. Okay, so there’s a fear which is normal and natural I think whenever a big change is looming in the horizon, a big black cloud as some might perceive it. Clients see mediation as a sign of weakness and a waste of time. What other factors might prohibit parties embracing mediation in France? That’s a slightly loaded question, because when I listened to you present, you talked about the French culture and how they weren’t predisposed to mediating. Is that right? Did I get that right?

Diana: Yes. Absolutely. I venture to say something like that. I’m not sure why my French mediators will know that. I don’t think so, but I do believe there is something French culture, I do not think it cannot be overcome, but I do think it explains some of the resistance that we are facing in France. I think culturally, French are very much used to a center of decision that comes from the top. Paris, France is a very centralized country and if we don’t obtain a real political push from a President, it could be from a very strong Prime Minister or whatever, I don’t think mediation will go as far as it goes or is going elsewhere. If we have a good political push, I do believe that French people will accept that decision and follow through, but it seems that under French culture, the stamp of authority is necessary to force acceptance in a way. And here we probably are starting to debate the issue of mandatory mediation in Argentina. I don’t think we’ll have to go that far in France, but I do believe that French are predisposed in accepting more decisions that come from the top, than anything else, and I also do believe that the French system, the French judiciary system which is mostly based on exchange of written submission doesn’t necessarily favor mediation.

Aled: Okay, so it sounds like culturally from your perspective, the French people, I wouldn’t say it’s a deference to authority, but they have more trust in authority. Is that another way of looking at it?

Diana: Yes, probably. It’s a way to put it. I think they accept a decision coming from the top. They like authorities. There is no way around. They do like authority. We elect our President, but our President really act much like a monarch. We are really democratic, but we do like some strong power in the top, so decisions are made from the top and then come down and we accept that to the extent of course it’s democratic, but we do want strong figures and I think it’s very much accepted in French culture.

Aled: Okay. Which might explain then parties, clients reluctant to mediate, seeing it as a sign of weakness, wanting a strong person with authority to represent them, to stand up for them, to tell them what to do, to advise them. They don’t want to have to make decisions based on emotion. They want to have decisions laid out for them.

Diana: I think that’s right and I think that’s proven by the fact that alternative means of dispute resolutions are very successful in France. For example, arbitration. France is one of the biggest place for international arbitration. Of course we are the ICC, which we also have judges who built over the years and for the last 200 years, a fabulous set of case law to support arbitration and arbitration is very much used everywhere in France and not only in international settings. It seems that French people are comfortable with an arbitrator making a decision as a judge would.

Aled: Okay. Alright, so we almost segued nicely into the second half of the interview, but just before we move into mandatory mediation and that murky waters of mandatory mediation, if I was a mediator starting out in France, what sort of advice would you give me, Diana?

Diana: Don’t put your eggs in only one basket. I would say, you are a visionary and you need to defend what you believe in and what you want to do and we are lacking people in France who really speak their mind about mediation and are ready to go educate people about mediation and tell people how much value can be added by using through mediation. I would say do it, but not exclusively. It would be too risky and it would be a lie. I would be lying to that person if I said, ‘Yes of course, don’t worry, it will work very well, you won’t have any difficulty.’ I would say, ‘Be patient, but mostly be perseverant, persevere’. We need people who believe in it and are ready to give a lot of energy to spread the word.

Aled: Is there a central organization in France? Are there conferences that take place in France where mediators come together?

Diana: Absolutely. We have actually a lot of institution, one that was put in place the CMRP which was put in place by the Chambre de Commerce du Paris, which is a very successful institution. They entered around, for now probably around 800-900 cases a year, which doesn’t seem much if you compare to Cedar example in London, I think which I understand probably handles ten times more cases a year, but their figures are slightly growing every year and we have L’acadÈmie de la MÈdiation which is a group of people that is like a think tank where people from companies and lawyers and mediators go to get together and try to discuss what should be done in order to foster the use of mediation in France. They originated the signing of a charter, where I think we have 45 signatures of that charter of mediation, big groups like WIG, Arriva and others have signed that charter, so there a lot of initiative going on there. Our bar association, the person who’s a lawyer could also participate to the commission on mediation at the bar, which is also very active and tries to put together proposals to the Ministry of Justice so as to reform our law on mediation and again try to [inaudible 00:28:17].

Aled: What was the organization before that? The one who developed the charter? What was the name of that organization?

Diana: L’acadÈmie de la MÈdiation, so mediation academy. We have a lot of schools on mediation, plus the one that we are building within the bar.

Aled: Okay, good. Coming up in the next part of the interview is a bit of a hot potato. Mandatory mediation. Could it work for some cases? Should we just give it a try? Well that’s what they’ve done in Argentina, so how is it working for them? Also, are we really listening to what users we want? We keep promoting the benefits of mediation, but is it really what they want? Do they know what they want? Has anyone even thought of asking them? All this and more in the next part of the interview, so make sure you check it out.

About the mediator

Diana Paraguacuto Profile Pic

Diana specialises in international litigation, arbitration and alternative dispute resolution. She has served as counsel in international arbitration proceedings held under the auspices of the International Chamber of Commerce, the International Centre for Settlement of Investment Disputes, the London Court of International Arbitration and UNCITRAL arbitration rules. She has expertise in international disputes involving state entities, as well as... View Mediator