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Bas van Zelst
Prof. dr. Bas van Zelst is professor of Dispute Resolution & Arbitration at Maastricht University. He practices law at Van Doorne N.V. in Amsterdam, the Netherlands.
Article

Access_open Evaluative Mediation (Part II), Deployment

How to Deploy Evaluative Mediation?

Journal Corporate Mediation Journal, Issue 2 2021
Keywords evaluative mediation, deployment, hybrids
Authors Martin Brink
AbstractAuthor's information

    Part II of this article addresses the question of how evaluative mediation may be used in practice. What guidelines are available to a mediator who considers crossing the line between facilitation and evaluation?


Martin Brink
Martin Brink PhD is Editor in Chief of this Journal, mediator and arbitrator at Utrecht and The Hague, The Netherlands.
Article

Access_open Dispute Resolution in the Chinese Belt and Road Initiative

The Role of Mediation

Journal Corporate Mediation Journal, Issue 2 2021
Keywords international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution
Authors Henneke Brink
AbstractAuthor's information

    With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested.


Henneke Brink
Henneke Brink is a Dutch lawyer, mediator, and owner of Hofstad Mediation. She carries out research and writes about topics concerning the relation between mediation and (inter)national formal justice systems.
Article

Access_open Evaluative Mediation (Part I), an Analysis

Evaluative Mediation, Working Method or Not?

Journal Corporate Mediation Journal, Issue 1 2021
Keywords core values, evaluative mediation, method
Authors Martin Brink
AbstractAuthor's information

    The phenomenon of evaluative mediation has invited much debate among both scholars and mediators. At the heart of that debate is the question of a definition of mediation. Considering all prevailing schools of mediation, the conclusion was that doctrine will not be able to prevent that mediation will continue to occur in all kinds of shapes and forms.


Martin Brink
Martin Brink (Van Benthem & Keulen BV, advocaten en notariaat at Utrecht, the Netherlands), is Editor-in-Chief of this journal.

Martin Brink
Martin Brink (Van Benthem & Keulen BV, advocaten en notariaat at Utrecht, The Netherlands), is Editor in Chief of this Journal.
Article

What Roles Do Forgiveness and Reconciliation Play in Corporate Mediation?

The Relevance of Forgiveness in The Work of Mediators in the Field of Corporate Mediation

Journal Corporate Mediation Journal, Issue 1 2021
Keywords forgiveness, reconciliation, corporate mediation
Authors Klaartje Freeke
AbstractAuthor's information

    The terms forgiveness and reconciliation are not the most frequently used words at the corporate mediation table. However, having been a conflict advisor and mediator for the last 17 years in both corporate and criminal cases, I know that the phenomena of forgiveness and reconciliation exist in all domains. Forgiveness can be found in everyday life, in small gestures and words. While researching this article, I spoke to three corporate mediators to find out what forgiveness and reconciliation look like in their fields of work, and it turns out that they might indeed be more present than one might think.


Klaartje Freeke
C.R.H. (Klaartje) Freeke, attorney and mediator at Freeke & Monster, Amsterdam.
Article

Corporate Mediation and Company Law

State of the Art, Recent Trends and New Opportunities

Journal Corporate Mediation Journal, Issue 1 2021
Keywords corporate dispute, enforcement, mediation clause, stakeholders, sustainability, sustainable development
Authors Valentina Allotti
AbstractAuthor's information

    This article describes the legal framework on corporate mediation in Italy with a particular focus on the effects of the mediation clauses included in company by-laws. The available data on the use of corporate mediation indicate that such clauses are not commonly used. There is still resistance among the parties in a dispute to engage in dialogue through mediation, not only where corporate disputes are concerned. The author suggests that one way to expand the use of mediation would be to promote the introduction of mediation clauses in the articles of association of companies. She also suggests that recent trends in company law, notably the emergence of sustainability issues, related to the impact of business activity on the environment and society, and more broadly on human rights, may create new opportunities for the use of mediation to prevent and solve corporate-related disputes.


Valentina Allotti
Valentina Allotti is a Senior Legal Policy Officer, Capital Markets and Listed Companies Area, Assonime. Views expressed by the author are her own and do not necessarily represent those of Assonime.
Article

A Reflection on the Evolution of Corporate Culture and Conflict Resolution (Part I)

The Resonance of Individual Conflict Resolution on the Collective Organisational Psyche

Journal Corporate Mediation Journal, Issue 2 2020
Keywords mediation, evolution system, corporate culture, conflict resolution, power struggle
Authors Hilde Kroon and Marcel Baatsen
AbstractAuthor's information

    In this article, a roadmap is proposed for both individual growth and eventual maturation of an organisation as regards how conflict is dealt with. Much can be achieved within organisations when the individuals who work there succeed in discovering and deploying their potential in order to deal with conflict in a mature manner.
    An organisation is a compilation of individuals and the overall culture of the organisation is, ultimately, determined by the collective wisdom of the people that form it, when it comes to dealing with conflict and related difficulties. The authors of this article propose a shared view to unearth the potential of an individual working in an organisation to creatively and proactively manage conflict, thereby opening a corporate portal that empowers the adoption of beneficial solutions in response to disarming and preventing difficult organisational situations.
    In Part I, the authors will discuss the transformation of the fear-based ego to clear a pathway for development to maturation of individuals and the overall culture of an organisation, following a multidimensional three-step Evolution System.


Hilde Kroon
Mr. Hilde Kroon is an independent mediator and trainer.

Marcel Baatsen
Marcel Baatsen is a former engineer and a freelance trainer.
Article

Access_open How to Successfully Manage Entrenched Conflict in Mediation

Journal Corporate Mediation Journal, Issue 2 2020
Keywords entrenched conflict, preparation, conflict identification, mediation model
Authors Sheila Gooderham
AbstractAuthor's information

    In entrenched conflict cases, mediation participants display a contradictory approach. They fail to take responsibility for their part in mediation and do not engage constructively in negotiations, whilst asserting a justificatory narrative for their behaviour. Usually they blame the other disputant, make excuses based on extraneous factors or even assert that the mediator is to blame for the lack of progress in mediation. In many entrenched conflict cases, there is no genuine commitment to negotiation at all on the part of the entrenched disputant. They are simply keen to present their case with an expectation that everyone else will fall into line with their demands. When entrenched conflict manifests, mediation is often being used as a forum for psychological game playing. Entrenched disputants tend to have a ‘win at all costs’ perspective. In some entrenched cases, mediation is simply being used as a tactic, with a view to fighting the case in court. In such circumstances, the entrenched disputant may simply see mediation as a means of eliciting further information about their opponent’s case, so as to benefit the entrenched disputant in subsequent court proceedings.


Sheila Gooderham
Sheila Gooderham is a writer, lawyer-mediator and director of The Mediation Specialists.
Article

Access_open Recourse to Mediation in Times of Crisis

Is Business Ripe for a New Approach That Saves Time and Preserves Relationships, Also in the Field of Competition Law?

Journal Corporate Mediation Journal, Issue 1 2020
Keywords cross-border mediation, crises, Covid-19
Authors Pierre Kirch
AbstractAuthor's information

    The purpose of this article is to share some practical reflections on cross-border mediation and its application to Private Competition Disputes in Europe, at this time of crisis. The outbreak of the COVID-19 pandemic has led to a rethinking of methods of dispute resolution, everywhere. In Europe, whether before the European Union courts in Luxembourg or the civil and commercial courts in the Member States, judicial procedures are at a standstill at the time of writing (mid-2020). Once the courts get going again, it will probably take years to get the judicial system back in good working order. It may be necessary to take shortcuts to get the system back in shape, such as cancellation of hearings, recourse to summary forms of justice, etc. That is not what the parties bargained for at the outset of their judicial procedure.


Pierre Kirch
Avocat à la Cour (Paris & Brussels Bars), Partner, Paul Hastings (Europe) LLP, mediator certified by the Centre de Médiation et d’Arbitrage de Paris (CMAP, Paris) and the Center for Effective Dispute Resolution (CEDR, London).
Article

Aviators Grounded by COVID-19 (But Mediators Are Ready to Fly)

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Fledgling mediators, Master Mediators, Ken Cloke, John Sturrock, Mediator’s Flight Plan
Authors Anna Doyle
AbstractAuthor's information

    Fledgling mediators are nourished by the wisdom of Master Mediators, until they find their wings and take to the sky. This is a personal perspective, inspired by the author’s attendance at a Master Class given by Ken Cloke in Edinburgh in 2008 (organised by John Sturrock of Core). It echoes precious wisdom, skilfully imparted and gratefully received. The Mediator’s Flight Plan has happily kept the author’s feet ‘off the ground’ for the past 12 years and has inspired her to fly. She shares it now in the hope that it may also inspire other mediators to dare to soar.


Anna Doyle
Anna (Walsh) Doyle is an International Mediator & CMJ Editorial Board member. She is also an external Mediator on the Global Mediation Panel at the Office of the Ombudsman for UN Funds and Programmes (independent contractor serving on an on-call basis).

Bas van Zelst

Louis B. Buchman
Louis B. Buchman is an attorney at law, admitted to the Bar in Paris and in New York, arbitrator and mediator at Paris, France.

Laurence Katz
Partner at gunnercooke llp in London, United Kingdom.

Claire Mulder LL.M
LL.M, business mediator, location Geneva, Switzerland.
Article

Access_open Rereading Fisher & Ury

Identifying the Advantages of Mediation in the Specific Setting of a Competition Law Dispute

Journal Corporate Mediation Journal, Issue 1-2 2019
Keywords modern mediation, principled negotiations, competition law
Authors Pierre Kirch
AbstractAuthor's information

    To analyse the advantages of mediation as a means of resolution of private competition disputes, it is helpful to look backwards to the underlying principles upon which modern mediation has been built. The principles that now guide leading mediation institutions in Europe are still based on the foundation that was laid by the methods of principles negotiations, written down in Getting to Yes: Negotiating Agreement without Giving In, by Fisher and Ury.


Pierre Kirch
Avocat à la Cour (Paris & Brussels Bars), Partner, Paul Hastings (Europe) LLP, mediator certified by the Centre de Médiation et d’Arbitrage de Paris (CMAP, Paris) and the Center for Effective Dispute Resolution (CEDR, London).
Article

The enforcement of mediation agreements and settlement agreements resulting from mediation

Journal Corporate Mediation Journal, Issue 1-2 2019
Keywords mediation, conciliation, mediation agreement, settlement agreement, Singapore Convention
Authors Niek Peters
AbstractAuthor's information

    Abstract: In this publication the author discusses first whether mediation agreements qualify as irrevocable agreements or whether the parties are free to disregard a mediation agreement when a dispute arises. Secondly, the author discusses whether, and if yes under what conditions, settlement agreements resulting from mediation can be enforced. In this respect, the Singapore Convention on International Settlement Agreements resulting from Mediation is also addressed.


Niek Peters
Niek Peters is partner of Simmons & Simmons, LLP, and professor of international commercial arbitration at the University of Groningen.
Article

What Is a Good Mediator?

Journal Corporate Mediation Journal, Issue 2 2018
Keywords certification, mediation, mediator, MMMM-rule
Authors Thierry Garby
AbstractAuthor's information

    When the time comes to select a mediator, the judge, the lawyers, the parties or the mediation centre will want to find a good one. This raises two questions: what is a good mediator and how to find one?
    The answer to the first question seems rather simple: a good mediator is one that the parties are happy with. This raises another set of questions: if the parties were happy with a mediator in one case, would they be happy with the same person in another case? Would other parties be happy with this mediator as well? If the answers are not a yes without reservation to both of those questions, then the question becomes: who would be a good mediator for this case between these parties?


Thierry Garby
Thierry Garby is a well-known and experienced mediator with most international mediation centres, particularly with the International Chamber of Commerce (ICC), the World Bank Group and the United Nations.

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Article

Access_open On the Concept of Corporate Culture

Journal Corporate Mediation Journal, Issue 1 2018
Keywords administrative instruments, business administration, corporate culture, corporate governance, long-term value creation
Authors Prof. Dr. Hans Strikwerda
AbstractAuthor's information

    The Dutch Corporate Governance Code-2016 stipulates that the executive board is responsible for creating a culture serving long-term value creation. Because the DCGC is law for public firms with this stipulation, the concept of culture is moved from the realm of informal administrative instruments to that of formal instruments, subject to dispute in case the duty of care is questioned. This article explains the provenance of the concept of culture, its multiplicity of attributed meanings and roles, and its changing nature in the digital era. Also, the article explains that for long-term value creation, more and different measures are needed than culture, values, vision, strategy or codes of conducts. This raises the question of whether an executive board having publicly committed the firm to long-term value creation demonstrates a credible commitment by complying with the DCGC, respectively culture as a means only, and can exculpate itself doing so. The answer is: no.


Prof. Dr. Hans Strikwerda
Prof. Dr J. Strikwerda, University of Amsterdam.
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