IBA Tokyo - Corporate Disputes: Why is mediation relevant and how does it work?

IBA Tokyo - Corporate Disputes: Why is mediation relevant and how does it work?

At the International Bar Association conference today, LexisPSL Arbitration Editorial Board member Joseph Tirado of Winston & Strawn (London) co-chaired a joint session with the Closely Held and Growing Business Committee, which looked at the impact of mediation in relation to disputes between stockholders, disputes between a shareholder and the corporation, disputes between joint ventures, disputes related to sales purchasers of shares.

Corporate disputes : Why is mediation relevant and how does it work?

Corporate disputes resulting from commercial agreements and transactions are frequent and the costs and delays of litigation and arbitration are increasing. Yet, mediation is still hardly used. Should corporate and commercial lawyers care? Are mediators effective solution finders in corporate disputes?

This session provided a comprehensive picture of the pros and cons of using mediation in corporate disputes so as to enable the attendees to counsel their clients effectively :

  • When does it make sense to mediate or to contractually provide for mediation? Which type of parties, which type of relationships, which industries, which contracts, which issues?
  • Why would it work where negotiations have failed?
  • How is it conducted?
  • What is so special about a third-party mediator and how does he/she « work his magic »?
  • What’s the role of a party’s counsel in the mediation process?
  • Consequences of a « failed » mediation process : confidentiality and strategic concerns
  • What’s the experience of mediation imposed by law? What’s the trend?
  • Should you accept a hybrid mediation/arbitration process?

In terms of format, the session was effectively in two parts:

The first half looked at (i) the problems specifically associated with closely held enterprises and (ii) the basic aspects of mediation – pros and cons and mechanics. Our speakers on Panel 1 were Diane Bertrand (Canada), Regina Lynch (Brazil), Rajiv Dutta (India), Nadya Alexander (Hong Kong), and Miguel de Avillez Pereira (Portugal).

The second half was a mock mediation, with members taking the part of client, counsel, mediator and other relevant parties. The speakers on Panel 2 were Joe Tirado (England), Danny McFadden (Hong Kong), Patricia Barclay (Scotland), Seiichi Okazaki (Japan), Gàbor Damjanovic (Hungary) and David Sondheimer (USA).

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