Mediation of commercial disputes in the Moldovan courts

CEDR International Dispute Resolution Centre 70 Fleet Street London EC4Y 1EU Tel +44 (0)20 7536 6000 Fax +44 (0)20 7536 6001 E-mail info@cedr.com www.cedr.com

Executive summary of recommendations

Legislative framework Mediation Council Review of Mediation Council capacity to fulfil the role required under the draft mediation law. Civil Procedure Rules Consideration should be given to a CPC mediation referral mechanism for judges. Stakeholder engagement Judiciary Mediation awareness to be part of sitting judges continuing professional development and in the curriculum for trainee judges. Lawyers Intensive awareness raising campaign to lawyers about the benefits of mediation to them and to their client needs to be undertaken, enlisting the support of high profile champions within the legal community. Business A significant outreach campaign to businesses about the benefits of mediation and enlisting key sector champions with the assistance of the American and Moldovan Chambers of Commerce and Industry. Public A wider awareness campaign focussed on the general public and potential disputants should be considered. Building capacity and capabilities Mediator skills training Consideration should be given to standardising a mediation curriculum based around interactive skills training; and standardising the assessment criteria for mediation trainers. i

Continuing Professional Development (CPD) be mandatory for mediators qualified under all systems of assessment to assist in creating a quality proposition for mediators within Moldova. Council of Mediation to foster a membership forum for mediators as a vehicle for encouraging professional development. Develop a cadre of master trainers (medium-term objective). Administration of the pilot programme Separate staff should be engaged for the mediation pilot if this is possible. In addition, consideration should be given to nominating a senior individual to be the official spokesperson for the mediation pilot scheme so that there is a focal point for its stakeholder engagement and marketing activities. Individuals responsible for case administration must be trained in mediation case management. Strategy for mediation pilot Scope and case suitability The mediation programme within the Court should focus on cases of a commercial nature only.

Relationship with the Courts The model to be used should be a regular court-annexed mediation programme.

Voluntary vs. mandatory Mediation at the Moldovan Court should be a voluntary process, which both disputants need to agree to, in order for it to proceed.

Incentives to mediate Court to consider what incentives and sanction can be used to encourage parties to mediate. Judges to be incentivised to refer cases to mediation through recognition of such cases, in their disposal statistics

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Operation of the pilot programme Screening and referral of cases There should be a presumption of referral to mediation for most cases of a commercial nature, with the judge allocating the case making the final decision on referral to mediation upon reviewing the file, claim and defence.

Appointment of mediator Mediators initially should be appointed from those who are CEDR accredited mediators through the EBRD project. The court should develop a set of minimum criteria for mediator skills training programme from which it will accept mediators onto the panel in the future. Sitting judges should not mediate cases in the mediation programme. An agreed fee should be paid to mediators as part of the pilot programme. Mediation process The following should be the broad structure of the mediation process in the Moldovan Courts mediation programme: 1. The parties should have 60 days from referral to mediation to settle the case. This could be extended by 1 more month with the consent of both parties. 2. There should be a period of 30 days from the invitation to mediate to the parties agreeing to mediate. If no agreement to mediate is reached within this time the case should be referred back to the court for listing for trial. 3. The mediation session should be 3-4 hours in length, but there should be no limit to the number of sessions, which should be left to the discretion of the mediator. 4. The mediations will take place at a premises designated suitable by the court. As a minimum 4 rooms should be available for mediation. 5. A mediation agreement will need to be drafted, which parties will sign on the day of the first mediation session. 6. To confirm settlement in mediation, a simple and effective method for turning settlements into consent decrees should be established.

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Introduction ....................................................................................................... 1 Creating the right environment ............................................................................... 2 Legislative framework ............................................................................................... 2 Regulation, organisation and administration of mediation ............................................... 4 Training of mediators ............................................................................................ 4 Civil Procedure Code ............................................................................................. 5 Stakeholder engagement ............................................................................................ 5 Judiciary ............................................................................................................ 6 Lawyers ............................................................................................................. 7 Business ............................................................................................................. 7

Building capacity and capabilities ............................................................................ 9 Mediator skills training .............................................................................................. 9 Administration of the pilot programme ........................................................................ 11

Strategy for mediation pilot ................................................................................. 12 Scope and case suitability ........................................................................................ 12 Relationship with the Courts ..................................................................................... 12 Voluntary vs. mandatory .......................................................................................... 13 Incentives to mediate ............................................................................................. 14

Operation of the pilot programme ......................................................................... 16 Administration process ............................................................................................ 16 Screening and referral of cases .............................................................................. 16 Appointment of mediator ..................................................................................... 18 Mediation process .................................................................................................. 18 Referral time-frame ............................................................................................ 19 Mediation time-frame ......................................................................................... 19 Session length ................................................................................................... 19 Number of sessions ............................................................................................. 19 Mediation location .............................................................................................. 19 Documentation required ....................................................................................... 19 Outcomes from mediation ........................................................................................ 19 Enforceability of settlements ................................................................................ 20 Non-settlement .................................................................................................. 21

Conclusion ....................................................................................................... 22

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1.1

Introduction
This report has been prepared as part of a project funded by the European Bank for Reconstruction and Development (EBRD) to assist in Justice Sector Reform within Moldova, particularly through the strengthening the system of alternative dispute resolution (ADR) in Moldova and the promotion of its use, especially in the business community. The aim of this report is to set out recommendations for optimum structure for mediation of commercial disputes in the Moldovan Courts, including the design of a pilot programme for a court-annexed scheme. It has been prepared by consultants from the Centre for Effective Dispute Resolution (CEDR) which is a specialist conflict management and dispute resolution organisation based in London, United Kingdom. Over the years CEDR has advised many jurisdictions and worked with many courts in different parts of the world on establishing court-based mediation programmes. The CEDR consultants were supported by Moldovan legal consultants from the firm, ACI Partners. In the research work leading to this report, the CEDR and ACI consultants met with representatives from the Ministry of Justice, National Institute of Justice, Superior Council of Magistracy, Court of Appeal, two Chambers of Commerce, and the Mediation Council. All groups provided valuable insights into how best to integrate mediation within Moldova. We also attended a Mediation Roundtable organised by the Ministry of Justice. We would wish to acknowledge the constructive and engaged manner of all participants and the common goal of beginning the process of planning a successful mediation system.

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Creating the right environment

Mediation within Moldova has many high level supporters, including being keenly advocated both by the present Minister of Justice and by the President of Moldova, himself a jurist and former head of Moldova's Supreme Magistrate Council. The government of Moldova has prepared a Justice Sector Reform Strategy for the period 2011-2015 (Strategy), developed with the assistance of the European Union and the Council of Europe. The Strategy represents a comprehensive and integrated sector-wide approach to challenges facing the Moldovan government in the administration of justice. It lays down a common framework for all reform efforts in the justice sector of Moldova, integrating the various concepts and action items to be completed over the reform period. One of the seven pillars of the Strategy is the role of justice in economic development, under which several measures are contemplated to improve the efficiency of the judiciary and thereby influence economic growth. One such measure is to strengthen the system of ADR in Moldova and promote its use, especially in the business community. The implementation of ADR systems, specifically mediation, has come as a priority to increase access to justice, increase trust in the justice system, decrease pendency of the courts, and promote inward foreign direct investment. However, in order for ADR to thrive, it is essential that it operates within a supportive legal and commercial environment. Legislative framework

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During the course of our stakeholder interviews, there was a great deal of discussion about whether there was any need for legislative and procedural amendments in order to encourage and/or provide a more supportive framework within which mediation might become successful. Moldova currently has currently a Law, No.134 of 14.06.2007, on mediation, but there was general consensus at the Mediation Roundtable hosted by the Minister of Justice that it has not been effective. In one discussion, a former judge of the Commercial Court proclaimed that in the four years since the introduction of the initial mediation law I have not seen any cases go to mediation. Further to this, in the Mediation Roundtable meeting, the Minister of Justice was quoted as stating that 99% of people surveyed agreed the purpose of the mediation law has not been accomplished. In meetings with stakeholders, various opinions were offered as to reasons behind this lack of take-up of mediation within Moldova:

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In a meeting with representatives of the business sector at the American Chamber of Commerce, they stated that there was a general lack of awareness within both the legal and business sectors about mediation and even those that were aware currently see no value in its application; Likewise, in meetings with various members of the judiciary, they observed that greater awareness was desirable; In meetings with judges and judicial bodies, concern was expressed about the lack of practical referral mechanisms within the courts and the effectiveness of the enforcement of awards; Many stakeholders highlighted the current lack of incentives and or sanctions for mediation, both of which they regarded as essential to encourage its use; Representatives of the legal and business communities expressed a concern about the lack of standardisation of training curricula within the jurisdiction.

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Reflecting this experience, a new Mediation Law has been drafted which is clearly well researched and makes reference to a number of policy documents including the UNCITRAL Model Law on International Commercial Conciliation, the European Union Community Directive 2008/52/CE, and Recommendations of the Council of Europe. Evidently, the Ministry of Justice drafters took note of mediation laws and practice in other similar civil law jurisdictions, and as a result the proposed legislation appears generally sound and consistent with international norms1. The draft mediation law outlines: o o o o o o o Chapter 1: General Definitions Chapter 2: Council of Mediation Chapter 3: Certified Mediator. Mediation Organisation Chapter 4: Principles of Mediation Chapter 5: Mediation Procedure Chapter 6: Special Provisions on Mediating in Civil and Commercial Law Disputes Chapter 7: Special Provisions on Mediating in Criminal Cases

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Although, for the avoidance of doubt, we make no comment on chapter 7 of the draft law, which deals with mediation in criminal cases and is, therefore, outside the scope of this project,

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Chapter 8: Support of Mediation by the State.

Captured within the law are many articles which are used in best practice around the globe and which should provide a solid foundation for mediation to grow in Moldova. The draft law specifically tackles issues such as the regulation and organisation of mediation and the training of mediators. CEDR has several immediate comments on both areas. Regulation, organisation and administration of mediation

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Under Chapter 2 of the draft law, the Council of Mediation becomes the central institution for promoting, organising and administering mediation within the jurisdiction. The draft law provides details of the seven members of the Council, and specifies that it may establish a technical secretariat, but otherwise it is largely silent on the methodology of how the Council is to go about its work and, in particular, the level of supporting infrastructure that may be required. In CEDRs experience, the successful development, regulation and promotion of mediation within a jurisdiction can become a substantial undertaking which will require proper resourcing. The Councils secretariat will need a formal base and all of the logistical considerations required for an operational office, and may also require input from a range of professional skills, including marketing professionals in particular. It is important that the Council is established and operates as a professional organisation, rather than merely as a committee of distinguished members. In order to cement its role as the flagship organisation for the development of mediation to across the legal and business culture of Moldova, it is specifically recommended that the Council has a key voice in inter-departmental meetings regarding the variety of approaches to be adopted when implementing mediation-related policy. Recommendation: Review of Mediation Council capacity to fulfil the role required under the draft mediation law.

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Training of mediators 2.18 Under Chapter 3, there is reference to initial and continued professional development for mediators, there are no details as to the nature of that training other than that Article 6(4) specifies a minimum threshold of 40 hours duration. This emphasis on duration rather than approach to training is, in CEDRs experience, a common mistake made in the early stages of mediation development. Although it largely operates in a legal context, effective mediation training requires a very different approach to legal education the rules of mediation may be learned in a formal classroom setting, but the 4

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key challenge of developing professional soft skills such as communication, questioning, listening and negotiation coaching can only be developed through skills training which has a very strong element of practicing, feedback and coaching (i.e. learning by doing, rather than learning by being told). 2.20 More specific recommendations for the development of mediator skills training are set out in chapter 3 below. Civil Procedure Code 2.21 The difficulty on relying on a new mediation law or amendments to current legislation is that it takes time to navigate through the process of enactment. Greater traction may be achieved if the court-annexed programme were to be accessed through amendments to the Civil Procedure Code. This amendment would facilitate the introduction of court-based mediation to allow judges an effective mechanism to effectively refer cases, allow the promotion of mediation through communication with parties, and the regulation of the role and status of the mediator. More attention on court-annexed referral system is available in section 4. Any changes to the CPC regarding implementation of a court-annexed system should be left until after the pilot has been conducted, as there will not be sufficient infrastructure for its extension to all courts especially at the early stages. However, it may be necessary that the Ministry of Justice or Superior Council of Magistracy issue a decree to organise the pilot in the designated courts as the pilot would have to be tied to existent regulations. Recommendation: Consideration should be given to a CPC mediation referral mechanism for judges. Consideration to be given about any necessary conditions in which the pilot will operate.

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Recommendation:

Stakeholder engagement 2.23 Greater and more effective use of mediation has a range of potential benefits. For the parties to commercial disputes, it offers dispute resolution that can be quicker and cheaper, with more tailored outcomes, than is often possible through the courts; this frees up funds that are otherwise earmarked for litigation contingencies. For courts, mediation can substantially reduce case load burdens, improve clearance rates, and raise efficiency in the administration of justice; this can allow the state to streamline administrative costs in the justice sector. However, for these benefits to be realised in Moldova, it is critical that commercial mediation becomes an effective and attractive alternative that is well understood by potential litigants. This requires extensive activities to promote the benefits of mediation. The scale of this 5

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challenge cannot be underestimated - the experience of ADR development programmes the world over is that creating demand for services is a far harder challenge than training mediators or building organisational capacity 2. 2.25 The key reason for the recurring difficulty in growing demand for mediation services is that an initiative faces two challenges: o First, there is a need to educate its key audiences about what it has to offer this often means explaining to them the concept of mediation, highlighting its benefits and demonstrating how it works. However, this awareness-raising work does not of itself generate any significant take up of services, and a more targeted sales campaign is therefore generally required in order to persuade parties and their advisers to purchase a mediation solution for any particular dispute.

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Such work to promote the concept of mediation is very resource-intensive and the Mediation Council should therefore be careful to enlist as many collaborators as possible in this effort. Suitable candidates would be leading lawyers and business organisations, as well as the government and judiciary. Individual mediators, once trained and accredited, should also be encouraged to act as champions for the cause. This recognition of the importance of promoting mediation as an alternative form of dispute resolution also emerged very clearly from the consultants meetings with representatives of the Judiciary, the Ministry of Justice and business groups, Judiciary

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In order to most effectively implement mediation within the courts, judicial awareness of the process is essential. Not only is this work required in order to establish the role of the judiciary, but it will also have an impact on the level of take-up of mediation - it is well established that lawyers are influenced by the attitudes of the judiciary. Mediation awareness for sitting judges could be adopted through their continuous professional development run by the National Institute of Justice, and incorporated into the initial curriculum for judges-in-training. The key messages to be delivered to the judiciary relate to the overall societal advantages of the processes. These can be supplemented by additional benefits of more personal interest to the judiciary specifically, use of mediation can lead to a reduction in the courts workload, thereby improving its efficiency and enabling resolution of more cases in less time.

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Key Lessons Learned for Developing ADR projects..Creating demand is more difficult than creating supply. Incentives have to be there. To mitigate the lack of demand, attract quality cases by establishing a good mechanism for case selection and create awareness IFC Alternative Dispute Resolution Manual: Implementing Commercial Mediation, page 80

Recommendation:

Mediation awareness to be part of sitting judges continuing professional development and in the curriculum for trainee judges.

Lawyers 2.31 In many jurisdictions, mediation can be seen as a threat to the lawyers role in the court process. Getting lawyers to encourage their clients into mediation and not block referrals to the mediation programme is essential to the success of any programme/pilot. Lawyers can also have a multiplier effect if a single law firm can be persuaded to inform all of its key litigation clients about mediation, then a larger number of organisations can be reached more quickly than if they had to be approached individually. An in house ADR Champion can promote mediation more effectively through the firms marketing programme than any amount of plain advertising. Accordingly an intensive awareness campaign must be undertaken with lawyers, in order for them to see the benefits of mediation to them and to their clients. Enlisting the support of high profile champions of mediation from within the legal community should be actively pursued, to serve as a focal point to encouraging lawyers to refer cases to mediation. The key message to be delivered to lawyers is that the process is beneficial to their clients. Equally important, lawyers must be reassured that the introduction of newer, faster and lower cost techniques of dispute resolution will not threaten their own commercial interests. Hence, an additional key message to lawyers is that, rather than representing a threat to their future revenues, mediation can in fact provide an opportunity for increased business by increasing client satisfaction and confidence in lawyers abilities to achieve cost effective resolution of disputes. Recommendation: Intensive awareness raising campaign to lawyers about the benefits of mediation to them and to their client needs to be undertaken, enlisting the support of high profile champions within the legal community.

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Business 2.35 At present although a mediation service is offered by several institutions, such as the Chamber of Commerce and Industry, there has been little if any take up. Feedback from representatives of the business community at the American Chamber of Commerce is that a lack of awareness is a major contributing factor. A significant outreach campaign to engage businesses in this process is, therefore, recommended. In promoting mediation, the key message to be delivered to corporates is that the process brings significant commercial benefits. Specifically:

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Use of mediation can result in significant savings in the time needed to resolve disputes faster resolution leads to reduced uncertainty and, therefore, lower business risk. There are also significant cost savings to be made, not only in terms of reducing legal fees but also by way of avoiding wasted management time caused by the distractions of longterm disputes3. Less formal processes also provide opportunities to maintain individual business relationships that might otherwise be significantly damaged by protracted litigation. In the longer-term, an increased use of mediation by business has the potential to improve the overall business climate, not only by providing opportunities for improved dialogue and early resolution of disputes but also by freeing up the courts such that they can focus their resources on those few matters that do require their attention.

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The diversity of the corporate audience means that it is very difficult to access them on a one-to-one basis. Accordingly, it is generally more cost effective within a domestic market to work through multiplier organisations such as Chambers of Commerce and other industry associations. By way of example, the American Chamber of Commerce have already indicated that they are agreeable to the preparation and distribution of pamphlets and marketing materials to promote mediation to their members. Such organisations should be engaged in specific initiatives to promote mediation within particular sectors. Suitable sectors would be those which are known to have a high incidence of significant disputes (e.g. construction and infrastructure development) and/or which are likely to attract significant international involvement as a consequence of Moldovas continued economic development. Recommendation: A significant outreach campaign to businesses about the benefits of mediation and enlisting key sector champions with the assistance of the American and Moldovan Chambers of Commerce and Industry. A wider awareness campaign focussed on the general public and potential disputants should be considered.

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Recommendation:

It is important to stress this second element, the potential savings in management time, not only because research has shown that this cost is often significantly greater than the legal fees involved in a dispute but also because it is a more palatable message for the legal community.

Building capacity and capabilities

Mediator skills training

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The proposed new Mediation Law clearly envisages the development of a professional group of suitably certified mediators and mediation organisations within Moldova. Thus consideration will need to be given not only to the nature of that training but also to the question of how aspiring mediators training and skills are to be assessed and monitored. Historically there have been a variety of approaches to training within Moldova, each based upon different curricula. This diversity, and the lack of an acceptable common standard, has been highlighted as a concern by business representatives. There also appear to be concerns about the level of training delivered. In a number of meetings with the CEDR consultants, participants expressed doubts about the abilities of mediators qualified under former systems. Most characterised past courses as having been taught by psychologists and legal professors and giving participants a thorough understanding of theory of mediation but little practical skills development. We understand also that the practical application of these skills is not usually assessed in this type of training. As previously noted, based upon over 20 years experience of training and accrediting mediators, CEDR believes it is essential that: o mediator skills training includes significant elements of skills practice, feedback and coaching, in preference to classroom-based book learning; in order to embed learning in adults, their adoption of the necessary skills of effective mediation should be assessed by reference to a clear competency framework.

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Given that the court (and, in practice, the State) will be in the position of effectively endorsing individual mediators through their involvement in the court system, it is clearly also important from a public policy perspective that the selected individuals have been assessed and confirmed as having the particular skills and competencies required. This is the approach which CEDR adopts in its own mediator skills training throughout the world, and which has been found to be highly effective in many other jurisdictions. As detailed in the attached Appendix A, the course offers delegates the opportunity to develop their skills through role-play and then to demonstrate their skills in assessment by competent mediation trainers who are themselves all experienced practicing mediators.

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Using this as a reference point, CEDR recommend a standardisation of approaches with a robust system of certification supervised through the Council of Mediation. Appendix B sets out details of CEDRs own Assessment Framework4. For those mediators that have qualified under the former system, it is recommended that they have mandatory continuing professional development (CPD) in the application of their skills. Additionally, CPD should be mandatory for mediators qualified under newly developing systems. In both instances, this would not only ensure quality assurance but ensure that mediation is established as a reputable profession within the jurisdiction. The Council of Mediation should also promote the development of a membership forum for established mediators in order to encouraging their mentoring of newly accredited mediators and also to create a knowledge sharing network. A final need that has been identified in meetings with Ministry of Justice is that there is a present lack of mediation master trainers within Moldova. This may not be an immediate concern given the proposal that the initial cadre of mediators for the proposed pilot is trained by CEDR as part of the EBRD project. In the medium-term, however, there will be clear need to develop trainers, ideally from amongst the mediation practitioner group. Recommendation: Consideration should be given to standardising a mediation curriculum based around interactive skills training; and standardising the assessment criteria for mediation trainers. Continuing Professional Development (CPD) to be mandatory for mediators qualified under all systems of assessment to assist in creating a quality proposition for mediators within Moldova. Council of Mediation to foster a membership forum for mediators as a vehicle for encouraging professional development. Develop a cadre of master trainers (medium-term objective).

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Recommendation:

Recommendation:

Recommendation:

For the avoidance of doubt, this recommendation does not mean to imply that only CEDR training should be approved. Rather, any training course can be approved provided that it meets the criteria of enabling participants to achieve (and demonstrate that they have achieved) the core competencies required for effective mediation.
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Administration of the pilot programme 3.10 In order for the proposed pilot programmes to be effective, there will also be a requirement to select and develop the capabilities of the staff who are to administer those programmes. There are broadly two options of how the court-annexed programme can be administered, namely to assign existing court staff to dealing with cases, or to have a separate staff within a court-annexed mediation pilot scheme. The relative advantages and disadvantages of each approach are as follows: o Existing staff dealing with all cases This would centralise the process and would allow ease of information exchange between the court and the mediation pilot scheme. Staff would have broad understanding of the processes and thus would be able to provide support to litigants as and where necessary. However, using the same staff might reduce the ability of the mediation scheme to develop its own identity and culture. The court might not be as flexible with staffing, and it could become confusing for users of the mediation pilot scheme if the staff are the same as those who work for the court. This might also add an extra workload burden on existing staff, as well as requiring them to be trained in managing a process which is not familiar to them and quite different from managing cases through the normal court system. o Separate staff within the centre This approach would provide the mediation pilot scheme the opportunity to create its own identity and culture; and the staff would be able to provide specialist knowledge and guidance about the use of the centre. It would also allow for more effective management of the cases within the mediation programme. Such an approach may, however, carry additional cost implications in terms of the numbers of staff required. Consideration will also have to be given to the practicalities of case management and information technology clearly if cases for both the courts and the mediation pilot are to be managed and tracked using the same systems, it might be operationally more convenient to share staff. In such situation, however, it would still be important to promote the separate identity of the mediation service wherever possible. 3.12 On balance, the CEDR consultants recommend that separate staff are engaged for the mediation pilot if this is possible. In addition, consideration should be given to nominating a senior individual to be the official spokesperson for the mediation pilot so that there is a focal point for its stakeholder engagement and marketing activities. Recommendation: Individuals responsible for case administration must be trained in mediation case management. 11

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Recommendation:

For the Ministry of Justice or Superior Council of Magistracy to consider nomination of a senior individual to be the official spokesperson for the mediation pilot.

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Strategy for mediation pilot

This chapter sets out some of the strategic issues to be addressed as part of the design of the proposed mediation pilot. Scope and case suitability

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The question of what cases are suitable for mediation often causes a great deal of discussion. In this instance, however, there was widespread agreement by all workshop participants that all of types of commercial cases identified by the diagnostic study would be appropriate for mediation. Whilst other types of case may also be suitable for mediation (for example matrimonial and certain criminal cases), these should not be included within the scope of the proposed pilot. Recommendation: The mediation programme within the Court should focus on cases of a commercial nature only.

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Relationship with the Courts 4.4 One of the key considerations in any court-connected mediation pilot is the question of its positioning and relationship with the Court system. Two broad approaches are available: o Court referred mediation In this approach, the ADR centre has a close working relationship with the court system but is not necessarily as part of it. Litigants can access mediation services either by way of a referral from the court, or by making a direct approach (possibly even before any formal litigation proceedings have been initiated). One of the key benefits of a court-referred system is that the ADR centre is seen as operating separately from the court and will have more flexibility in approach and function. By its very definition the mediations that are referred to the centre will be voluntary, meaning parties will be free to agree or disagree to the referral. This separation can, however, also present a challenge in that there might be reluctance by a party to agree to referral to a centre that is outside the court. Also parties look to the court to provide an unbiased resolution to their dispute. Anything outside of that venue might be viewed with suspicion. o Court-annexed mediation

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In Court-annexed mediation, the service is provided by the court as part of the same judicial system, and the court controls the entire process. Within this model, there are two options as to how cases can get to mediation. In the regular model of court-annexed mediation, cases go into the court system and it is the judge who would refer the case to ADR. The alternative model, usually termed multi -door, the system of ADR is still supervised by the court, but does not rely on cases entering directly into litigation. Rather, cases come into the court system and are then allocated either to an ADR or litigation track, either at the choice of litigants or by the court staff (although some jurisdictions deploy a dispute management panel of allocation judge to make such decisions). If mediation is not successful, the case is then referred onto the mainstream litigation process. 4.5 Discussions in several of the consultants meetings focused on which model would be best suited for the court; and there was a broad consensus that a court-annexed system would be most suitable for Moldova. The fact that the mediation programme would part of the court structure was regarded as providing reassurance to litigants. Although there is a national case management and allocation IT system, there was still a belief that the judges should have some active role in determining which cases should be considered for mediation; and again the involvement of a judge should make it more likely that parties would agree to mediation. It was recognised, however, that the involvement of a judge in the screening of cases must also be balanced against the need for the expeditious handling of each case, and that the screening process must not in itself materially add to the administrative burden on the judges. Given these views, CEDR considers that the regular model of courtannexed mediation would be the most suitable for the court. This regular model is also recommended in that it entails the least amount of change to the current court administration process, with a screening and referral process being able to be utilised alongside what works best within the current administration of the court. Recommendation: The model to be used should be a regular court-annexed mediation programme.

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Voluntary vs. mandatory 4.8 While all agreed that mediation would provide the court system added benefit, there was some disagreement about whether mediation should be mandatory or voluntary, or whether this might depend on the type of case being considered (e.g. should all probate cases be mandatorily referred to mediation?). o Voluntary mediation

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In a voluntary system, the court/judge would offer the parties the possibility of resolving the dispute through mediation or another model, leaving the decision about whether to take part with the parties. Traditionally most court-annexed programmes are voluntary. o Mandatory mediation This process is mandatory only in terms of entry into the process, in that parties must attend mediation, but not in terms requiring a resolution to the dispute, as the mediator cannot force the parties to a resolution. 4.9 There are arguments in support of both approaches and each has benefits and challenges. No matter whether mediation is voluntary or mandatory, each offers an opportunity for the resolution of a dispute. While settlement rates of both systems vary, the benefit of mediation was acknowledged and it was agreed that if this could provide satisfaction for at least 50% of the cases in Moldova, then this would help deal with the huge backlog of cases that currently exist in the court (approximately 54,000). However in this instance CEDR would recommend that a voluntary model be adopted for practical reasons. Any attempt to make mediation mandatory would be a large shift in the approach of the court, and would undoubtedly encounter resistance by lawyers, who might argue that their clients right to go to trial is being removed. Significant resistance by lawyers might see the initiative flounder in the early stages, and it would therefore be advisable to start with a voluntary approach and try to use the successes that such model brings in order to encourage take-up rather than go down a mandatory route. A second reason is that a move to mandatory mediation would most likely necessitate changes to the Civil Procedure Code and also possibly supporting legislation. All of these things would take time and be bound to encounter resistance from lawyers and others opposed to mediation. Recommendation: Mediation at the Moldovan Court should be a voluntary process, which both disputants need to agree to, in order for it to proceed.

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Incentives to mediate 4.12 In some jurisdictions courts encourage parties to mediate by introducing incentives or imposing sanctions and these can include: o Incentives for the parties:

Full or part payment of state / court fees Stays of proceedings

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Preference for setting down for trial if no settlement o Incentives for judges:

Extra recognition for cases referred to mediation by a judge in disposal statistics. As an example, in Croatia as part of the Judicial monitoring process, judges were given 2 credits for the disposal of a case through mediation, while disposal by trial received 1 credit. o Sanctions Adverse costs orders (such as the Civil Procedure Rules of England and Wales). Rule 44.3(2) of the Civil Procedure Rules of England and Wales allows Judges to penalise parties who unreasonably refuse to attempt mediation by awarding a higher level of costs against them if they are unsuccessful at trial, or recovering a lower level of their costs if they are successful at trial.

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It was the feeling of many participants that incentives could be applied to the Moldovan Court system to promote the use of mediation. In particular, the incentive for judges to refer cases was regarded as a possibility but require further discussion on how judges refer cases to mediation. There was general discussion that while adverse cost orders could be made in theory, in practice this would not work as judges would be reluctant to make such orders especially at this initial stage of implementation. However CEDR would still encourage the court to consider more widely whether incentives and sanctions can be built into the programme in order to encourage parties to mediate. Recommendation: Court to consider what incentives and sanction can be used to encourage parties to mediate. Judges to be incentivised to refer cases to mediation through recognition of such cases, in their disposal statistics.

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Recommendation:

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Operation of the pilot programme

Administration process

5.1

Set out below are the broad stages of administering mediation through a court-annexed programme:

Screening and referral of cases 5.2 The method of screening cases and the mechanism to refer cases into the mediation programme are essential decisions when implementing any court-annexed mediation programme. Of the different mechanisms presented, there was agreement that it should be something that judges and other court staff would feel comfortable and confident using. The main question that was considered was: where does the screening and referral occur? From experience from other court-annexed systems around the world there are a number of different options in this respect. These are set out below with discussion from the workshop summarised for each:

5.3 5.4

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Automatic referral if an agreed category of dispute - with opt out by parties While this held some appeal for participants as it facilitates referrals into the mediation process with the lowest administrative burden, the concern was that such a system may exclude the judge from being part of the decision-making process about whether a case is actually appropriate for mediation.

Screened by court staff prior to allocation to a judge While it was suggested that staff could be trained to assess the suitability of a case for mediation, there was also discussion that there might be limited availability of staff who could perform this function. Again the role of the judge was seen as important here and therefore it was felt that this was not an appropriate method for the Moldovan courts.

Screened by judge at preliminary stage of litigation process. There was a general belief that the judges should ultimately decide which cases should be referred to mediation, and this would be consistent with current practice. Judges would review the case once the claim and defence have been received in order to determine its suitability for mediation. It was also thought that if the judge in the case had made an active decision to refer the case to mediation, then the parties might be more willing to agree to the mediation. This role must not, however, create any excessive administrative burden on the judge.

Specialised case track management unit established to allocate to litigation of mediation A specialised case management unit has worked well in many centres but again this limits the role of the judge and there was a strong belief that the judge should be involved.

5.5

Accordingly CEDR would recommend a hybrid approach that starts with a presumption that certain categories of cases will be referred to mediation. This should be indicated on the file when the case is allocated to the judge; and the final decision on whether the particular case is actually suitable for mediation would then be taken by the judges once they have reviewed the claim and the defence. Recommendation: There should be a presumption of referral to mediation for most cases of a commercial nature, with the judge allocating the case making the final decision on referral to mediation upon reviewing the file, claim and defence. In order to facilitate this, a decree may be necessary by the Ministry of Justice or Council of Magistracy detailing the court referral process and criteria for referral.

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Appointment of mediator 5.6 There was general agreement that trained mediators must be used in the pilot in order to ensure a high quality of service to disputants and to ensure the mediation programme is successful in resolving disputes. One possible solution for establishing the initial panel might be that all who attend and are successfully accredited through the CEDR/EBRD mediator skills training course could be eligible to mediate in the programme. (Refer to Appendix A for course description and a breakdown of content). At a later stage, it is not envisaged that the courts would host mediator training specifically, but they and/or the Council of Mediation should establish strong criteria for identifying eligible panel mediators within the jurisdiction. There was some debate amongst participants and the CEDR consultants about whether sitting judges should be used as mediators for court-annexed programmes. Although CEDR believe that judges can make excellent mediators, for the purpose of the pilot it is recommended that the panel of mediators does not include sitting judges. In relation to the remuneration of the mediators, those participating within this pilot will be paid a fee for mediating such disputes, funded by the EBRD project. While it is acknowledged that there is restricted funding for this, it is CEDRs experience that mediators may be happy to be involved in this pilot programme on an unremunerated basis, in order to gain experience. Recommendation: Mediators initially should be appointed from those who are CEDR accredited mediators through the EBRD project. The court should develop a set of minimum criteria for mediator skills training programme from which it will accept mediators onto the panel in the future. Sitting judges should not mediate cases in the mediation programme. An agreed fee should be paid to mediators as part of the pilot programme.

5.7

5.8

5.9

5.10

Recommendation:

Recommendation:

Recommendation:

Mediation process 5.11 The following summarises extracts of discussion on how the mediation process should broadly operate within the court-annexed programme:

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Referral time-frame 5.12 CEDR has previously advised in other jurisdictions that some 15 - 30 days should be given from the time an invitation to mediate is sent for the parties to reply agreeing to mediate. Following this, if no agreement is reached, then the file should automatically be transferred back to the court. This period should give lawyers sufficient time to consider mediation and refer it to their clients for consideration; and then for the lawyers to write back to the mediation programme, notifying them of their clients decision. Conversely, it does not permit undue delay if mediation is not selected. Mediation time-frame 5.13 Mediation sessions should take place within a designated amount of time from the agreement to mediate with possibilities for extension (but limited). If mediation is not completed within this period, then the matter should be sent back to the trial judge, unless the parties agree otherwise. Session length 5.14 To manage court time effectively each mediation session should be limited to 3 to 4 hours. This will also allow mediators to use time limits to their advantage. The preparatory training for mediators will focus on the specific skills required to mediate in time-limited court programmes. Number of sessions 5.15 The number of sessions should not be limited and should be at the discretion of the mediator. However any subsequent sessions should be scheduled only after consultation with the appropriate centre staff about available time slots. Mediation location 5.16 Ideally there should be at least 4 rooms available for mediation, which would allow two mediations to take place simultaneously (with each mediation using two rooms). CEDR are, however, aware that there are significant constraints on capacity to house mediation rooms. Documentation required 5.17 A simple mediation agreement will be required to set out parties agreement to the process . This should be provided by the centre to the mediator on the day for signing by the parties prior to the commencement of the first session of the mediation. Sample of mediation agreements used in English court programmes are available and can be provided to the court. Outcomes from mediation

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Enforceability of settlements 5.18 There was extensive discussion around issues of ensuring the enforceability of settlement agreements arising from successful mediation, with the main risk perceived as being that parties agree to a settlement with the mediator and then subsequently change their mind. It is worth noting that the mediation process itself provides some assurances in this regard. Firstly, because any settlement is by way of consent only, the majority of mediation agreements are honoured without the need for any enforcement action. In addition, a settlement agreement is itself enforceable as a contract. This concern about enforceability is, however, prevalent in many jurisdictions in which mediation is emerging, and it therefore generally advisable to seek to address it rather to permit a possible barrier to entry into the process. The usual approach, therefore, is to arrange for the court to approve mediation settlement agreements, and thereby to convert them onto more formal court orders, which should be relatively simple to enforce. This is a well-used procedure within the Civil Procedure Code and therefore should not present a barrier for application on a mediation settlement agreement. It is, of course, important that this process by which the court approves mediation settlement agreements does not become a hearing by the judge of the underlying merits of the case. The process should, therefore, be designed as one in which the judge confirms the parties agreement to the settlement, without necessarily having to spend a large amount of time looking into the particulars of the case. The process suggested by CEDR would enable the parties to go back before a trial judge within one month of the mediation. The judge would confirm with the parties that the settlement agreement reflected the agreed outcome and to vouch for their signature. In effect, the judge would then confirm the settlement agreement as a court settlement. Possible concerns arising from this approach might be that such a delay could be problematic in terms of parties changing their minds about the settlement. It might also be seen as increasing the administrative and time burden on the courts and the parties by having to organise another hearing which they would have to attend. One possibility used in another court-annexed programme would be to have a Duty Mediation Judge who is not listed to hear cases while mediations are being undertaken. This judge would be available for parties to go to immediately upon reaching agreement to get the agreement made into a consent decree. Alternatively another approach used in England and Wales is that the consent order is given merely upon application by the lawyers and no hearing is required at all.

5.19

5.20

5.21

5.22

5.23

5.24

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Non-settlement 5.25 There might be occasions when cases do not settle, and there needs to be a formal process whereby they are referred back to the court and the stay of proceedings removed (if one has been granted). This process needs to consider if the case would return to the judge originally assigned and a suitable method of returning back into the court system. Mechanisms should also be put in place to ensure that the judge assigned to any case that has not settled at mediation is not provided with any information about what transpired during the course of that mediation. Recommendation: The following should be the broad structure of the mediation process in the Moldovan Courts mediation programme:

5.26

1. The parties should have 60 days from referral to mediation to settle the case. This could be extended by 1 more month with the consent of both parties. 2. There should be a period of 30 days from the invitation to mediate to the parties agreeing to mediate. If no agreement to mediate is reached within this time the case should be referred back to the court for listing for trial. 3. The mediation session should be 3-4 hours in length, but there should be no limit to the number of sessions, which should be left to the discretion of the mediator. 4. The mediations will take place at a premises designated suitable by the court. As a minimum 4 rooms should be available for mediation. 5. A mediation agreement will need to be drafted, which parties will sign on the day of the first mediation session. 6. To confirm settlement in mediation, a simple and effective method for turning settlements into consent decrees should be established.

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6
6.1

Conclusion
The preceding discussions and recommendations are not meant to be an exhaustive plan for a court-annexed programme within Moldova. Rather it is intended to provide some key recommendations as a framework for beginning to develop an effective court-annexed programme. All participants of the workshops indicated that now was the right time for the introduction of mediation into the court system, and it is hoped that his report will serve as blue print for the Moldovan Ministry of Justice should they decide now to proceed with a court-annexed mediation programme.

6.2

Graham Massie Director and Mediator Centre for Effective Dispute Resolution

Ranse Howell Head of Negotiation & Leadership Academy, Mediator Centre for Effective Dispute Resolution

April 2013

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Appendix A CEDRs Mediator Skills Course Outline

Course content The course constitutes approximately 50 teaching hours over a period of six days. This is extremely intensive and a prompt start at 08.30 and a finishing time of 18.00. Delegates will need to prepare thoroughly for this demanding programme and a minimum of 16 hours pre-reading should be reserved in advance of the course. The Mediator Handbook, case studies and role-play instructions are dispatched one month in advance and maximum benefit can only be achieved if all delegates are familiar with these key materials. The structure of the training would be as follows: Days 1, 2 and 3 By alternating the methods of demonstration and practice we take delegates through the phases of mediation training from the first day of the course. Skills and process are explored looked at and tried in practical exercises. Case studies, based on actual mediations, are used throughout and participants will experience the role of mediator, adviser and mediation party. Day 4 This is a 'practice day' of shared learning in preparation for the assessed days. During the day each participant will experience the role of Mediator, Party and their Advisor. There is a coach with each group in every session, throughout the day providing guidance and input as the role play progresses. The whole day is devoted to a single detailed case study and participants practise the skills at each stage of a mediation. The training faculty coach small groups of participants through the case study and provide personal feedback to the Mediator of that session. The mediation sessions are interspersed with group discussions covering the key issues faced by the mediator. This is done in order to focus on what is going well for the Mediator and what areas are to be developed in preparation of the assessment days. Days 5 and 6 (assessed days) Each participant mediates one simulated case on each day. A faculty member observes each session and assesses performance against a set of competencies. Individual feedback, group learning and discussion continue alongside this assessment.

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Consistency of delivery A very detailed CEDR trainers' manual has been developed which, for each part of the course, sets out the learning objectives, teaching methodology and debrief points, to ensure that quality and consistency of delivery are maintained Live demonstration of the mediation process CEDR does not use video or power point to explain the process; rather we use live demonstration of the phases of mediation, by the experienced CEDR lead trainers. Although this is more difficult and more trainers it is highly effective in showing how the mediation process works and allows participants to interact and ask questions. Focus on process and skills in parallel The skills mediators use are linked closely to the different phases of the mediation process. CEDR therefore links relevant instruction in the skills to the examination of the phases of mediation. Active-engagement through role play Adults learn better by doing rather than just seeing, and therefore the CEDR course places emphasis on participants practising the skills and process through role play and exercises. Extensive coaching of participants During role-play CEDR trainers provide coaching to the practising mediators by reference to a formally defined and well tested competence framework which provided the basis for the assessment process (see later). This ensures consistency of coaching across groups and maximises the opportunity for participants to be successfully accredited. Private one-to-one feedback Course evaluations over the last 20 years consistently rate the level of 1-to-1 feedback given to participants as one of the most valuable aspects of our course. During the last 3 days of the course, coaches/assessors have a 15-minute private session giving specific feedback on areas that worked well and areas which need to be developed. This feedback is given in a constructive and appropriate way, using methodology developed over many years. A CEDR coaching and feedback manual has been developed to ensure consistency of approach and quality delivery. It should be noted that to achieve the coaching and feedback to the level set out above coaches have to be present in each group for the whole mediated session. Clearly, to maintain this level of quality there is an impact on cost, as more coaching personnel are required.

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CEDR Accreditation The Certificate of Accreditation is awarded to participants who demonstrate the level of competence to achieve the status of CEDR Accredited Mediator. It is a highly challenging course, but approximately 70 per cent of participants achieve accreditation. The Foundation Course in Mediation Skills Certificate is awarded to acknowledge the participation of those who do not achieve accreditation, and an opportunity to be reassessed may be available for some participants.

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Appendix B CEDR Mediator skills training course - Assessment guidance

Assessment will be made against eight competencies: Relationship skills 1. Creates an environment conducive to mediation 2. Develops communication and interaction with each individual participant Process skills 1. Establishes and maintains a safe and effective working structure 2. Manages the process and works through the phases of mediation Content skills 1. Facilitates the parties in creating workable solutions 2. Enables momentum and progress through active engagement with the people and the content Written Assignments 1. Able to document areas of agreement between the parties 2. Able to learn through awareness of own strengths and weaknesses. Relationship, process and content skills are assessed by CEDR faculty members through the observation of candidates in simulated mediation situations. The remaining competencies are assessed through written work submitted after the completion of the course. The guidance under each competency identifies activities, skills and approaches that may be used to demonstrate competence. The guidance under each competency is exactly that guidance. It is unlikely that a candidate will have the opportunity to exhibit all the points listed. The list is not exhaustive. The assessment categories are as follows: O C W N I/E Outstanding = the mediator demonstrates great ability in this competency Competent = the mediator is competent Working towards = the mediator achieves some attributes and is working towards the required level of competence N = the mediator does not achieve the competency I/E = insufficient evidence. There was no opportunity for the mediator to exhibit competence in this area

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Relationship skills 1 Creates an environment conducive to mediation Sets the scene and sets the tone conveys energy, enthusiasm and personal warmth appears relaxed, alert and confident with the process makes good use of the physical environment attends to participants comfort and needs motivates parties and representatives to participate Builds confidence and trust establishes the mediators authority communicates in an assured, open manner, verbally and non-verbally demonstrates neutrality through equal treatment of the parties and use of nonjudgmental language has prepared well and appears well-prepared recognises issues of discrimination, equality and diversity and manages any perceived power imbalance defuses unhelpful tension and harnesses constructive tension is sensitive to team dynamics and manages intra-team relationships adapts to different individual and corporate cultures Key Personal Attributes: humanity, integrity, alertness and verve

Develops communication and interaction with each individual participant establishes rapport quickly with the parties and others present encourages parties to talk and to express what matters to them by using open questions and other communication skills listens attentively, prompts, paraphrases, and reflects back demonstrates understanding of each partys situation, their perspective and their feelings about it uses silence positively, and maintains good balance of airtime between mediator and participants recognises, respects and responds to expressions of emotion allows parties to express emotion in order to enable progress uses awareness of body language, own and others, to enhance communication acknowledges the significance to parties of problems and issues uses touches of humour effectively frames, reframes and uses language flexibly so as to influence participants positively

Key Personal Attributes: humanity and imagination

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Process skills 1 Establishes and maintains a safe and effective working structure Takes responsibility for the process: the principles explains roles, responsibilities and procedures to the participants demonstrates familiarity with the procedure, structure, ground rules and responsibilities within the mediation process respects and preserves confidentiality manages the process with confidence remains in charge of the process throughout handles challenges to the process or the mediator calmly and with authority is alert to ethical dilemmas and handles them safely Key Personal Attributes: integrity and responsibility

Manages the process and works through the phases of mediation Takes responsibility for the process: the practicalities opens the mediation well works through the process fully adopts a pace which is responsive to the needs of the parties summarises and checks before moving on, especially at the end of private meetings makes decisions about the order of events and the use of private and joint meetings, consistent with progress chairs any joint sessions in a manner that encourages a productive conversation to take place manages transitions between sessions keeps all participants informed regarding the process, and anticipates and flags up possible process choices helps participants to use the time productively by setting tasks or creating working groups keeps notes, as necessary, unobtrusively manages time well uses any visual aids or flipchart purposefully manages own pace, energy level and emotions; takes time for reflection between meetings Key Personal Attributes: humanity, stamina and verve

Content skills 1 Facilitates the parties in creating workable solutions motivates parties and representatives to take responsibility for the outcome of the mediation and to make their own decisions allows the parties to determine the content keeps options open, avoiding premature commitment to solutions generates an atmosphere of creative problem solving and keeps a horizon of settlement in view for everyone establishes any common ground and finds practical ways to interrelate parties goals remains alert to and picks up on areas for further attention - including legal, commercial and personal aspects helps parties move from emphasis on rights to a future focus on interests, priorities and options for resolution guides parties to move between attention to the detail and awareness of the bigger picture to assist progress uses hypothetical questions and other techniques which expand possibilities for settlement, including non-financial elements takes account of any previous settlement offers highlights any lessons to be drawn from the causes of the dispute that may affect proposed settlement terms uses strategies to overcome deadlock draws together options into a coherent settlement package helps parties think through details and test that a proposed solution is workable Key Personal Attributes: determination, stamina, imagination and commerciality

2 Enables momentum and progress through active engagement with the people and the content identifies and probes issues explores positions to gain an understanding of underlying interests, needs, beliefs and priorities creates opportunities for dialogue and flow of information between the parties manages information exchange tactically to good effect uses a range of types of questions to work with the content; for understanding, probing and challenging enables parties to see the situation from a broader perspective including the other partys point of view picks up on verbal and non-verbal cues to promote progress manages parties expectations works well with numbers, and helps parties to formulate proposals to have a positive impact helps participants to save face for themselves and each other

CEDR

29

 recognises and works with different negotiating styles and tactics, and coaches parties to negotiate effectively encourages the parties to re-evaluate their own and each others position challenges and tests reality to encourage movement, whilst retaining the trust of the parties helps parties to reassess risks and benefits of particular outcomes, including failure to agree

CEDR

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Written assignments The following competencies are assessed on the basis of a written assignment that the participant sends to CEDR following completion of day five of mediator training.

Able to document areas of agreement between the parties covers relevant areas in detail reflects the spirit of the mediation in choice of language produces a written agreement which is clear, concise and unambiguous in terms of language.

Able to learn through awareness of own strengths and weaknesses In relation to mediation: is willing to assess own strengths and weaknesses realistically identifies specific learning from past experience (personal and professional) gives one or two examples of how learning has led to changes in behaviour comments on specific feedback received during the course (from colleagues and/or faculty) identifies specific learning from the experience of being the mediator on the course identifies other specific learning that has heightened awareness of own strengths and weaknesses.

CEDR

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