What is arbitration
[11 /] Mediation SAV: New training. Stämpfli Verlag CORINA BÖLSTERLI / CINTHIA LÉVY CINTHIA LÉVY / MAYA KIEPE DANIEL KETTIGER
1 THE PRACTICE MAGAZINE OF THE SWISS LAWYERS ASSOCIATION L ORGANE PROFESSIONNEL DE LA FÉDÉRATION SUISSE DES AVOCATS LA RIVISTA PROFESSIONALE DELLA FEDERAZIONE SVIZZERA DEGLI AVVOCATI ANWALTS new conception: SAVATI nouveau concept PAGE / PAGE 438/439 CINTHIA LÉVY / MAYA KIEPE Médiation judiciaire: volontaire ou obligatoire? PAGE / PAGE 446 DANIEL KETTIGER The legal secret in the coronavirus PAGE / PAGE Contact-Tracing PAGE / PAGE 465 Stämpfli Verlag
2 TABLE OF CONTENTS TABLE DES MATIÈRES LE POINT DE MIRE DU CONSEIL FSA 435 IN THE FOCUS OF THE MANAGEMENT BOARD SAV 437 Corina Bölsterli Mediation SAV: New training, new concept 438 Cinthia Lévy Médiation FSA Supplement: Nouvelle formation nouveau concept 439 Urs Weber-Stecher / Katia Rener ideal for business mediation Arbitration 440 Cinthia Lévy / Maya Kiepe Médiation judiciaire: volontaire ou obligatoire? 446 Jennifer Dürst / Julia Jung “Rumor mill” about mediation 454 Stéphanie Wietlisbach Mediation as an opportunity in the event of separation or divorce 459 ANWALTSPRAXIS / PRATIQUE DU BARREAU Daniel Kettiger Legal confidentiality in coronavirus contact tracing 465 Bruno Pasquier / Marilyne Pasquier statistique etil protection des données 472 Julia Kalenberg Challenging times to be able to act and remain successful 481 LEGAL LAW / JURISPRUDENCE 486 ANWALTSRECHT / DROIT DE L AVOCAT Tano Barth / Fabio Burgener Tensions entre avocats et magistrats: récusation du magistrat ou incapacité de postuler de l avocat? 487 SAV KANTONALE VERBÄNDE / FSA ORDRES CANTONAUX The SAV announces / La FSA vous informe 494 IMPRINT Anwaltsrevue / Revue de l avocat 23rd year 2020/23 e année 2020 ISSN (print) e-issn (online) Frequency / Parution 10 times annually / 10 fois l of citation / Suggestion de citation Anwaltsrevue 5/2013, p. 201 ff. Revue de l avocat 5/2013, p. 201 ss Editor / Edité par Stämpfli Verlag AG Swiss Bar Association / Fédération Suisse des Avocats Co-Editor-in-Chief / Co-rédacteurs en chef Peter von Ins, Lawyer (vi) Kochergasse 6, CH-3001 Bern Tel, Fax Dr. Patrick Sutter, Lawyer (PS) Färberstrasse 4, CH-8832 Wollerau Tel, Fax Contact Verlag / Contact maison d édition Martin Imhof Stämpfli Verlag AG Wölflistrasse 1, Postfach, CH-3001 Bern Tel, Fax Employee / Collaborator Thomas Büchli, Lawyer (Bü ) Livia Kunz, MLaw (LKu) Secretariat SAV / Secrétariat FSA Marktgasse 4, Postfach 8321, CH-3001 Bern Tel, Fax Advertisements / Annonces Stämpfli AG Postfach, CH-3001 Bern Tel, Fax Edition / Tirage copies / exemplaires (notarized / authentifié par un notaire) Sales / Distribution Stämpfli Verlag AG Periodicals Wölflistrasse 1, Postfach 5662 CH-3001 Bern Tel, Fax Members of the SAV should contact the SAV directly to change their address. Les membres de la FSA s adressent directement à la FSA pour leurs changements d adresse. Prices / Prix Annual / Annuel: CHF 233., EUR 271. (print and online); CHF 187., EUR 187. (Online) students / Etudiants: CHF 123. Prices include 2.5% VAT and shipping costs. Single issue / Numéro séparé: CHF 28., EUR 28. Members of the SAV free / Membres FSA gratuit All prices incl. 2.5% VAT / Tous les prix incluent la TVA de 2.5% The prices in are only valid for Europe. Les prix indiqués en ne sont valables que pour l Europe. Written termination possible up to 3 months before the end of the term. / Résiliation de l subscription possible par écrit jusqu à 3 mois avant la fin de l subscription. Copyright title << AnwaltsRevue / Revue de l Avocat >> by Swiss Bar Association, Bern Content by Swiss Bar Association, Bern and Stämpfli Verlag AG, Bern Design and layout by Swiss Bar Association, Bern. Designer: grafikraum, Bern All rights reserved. The magazine and its parts are protected by copyright. Only original articles that have not yet appeared in print are published. Contributions are accepted on the condition that the exclusive right of reproduction and distribution is transferred to Stämpfli Verlag AG and the Swiss Bar Association. Any use and reproduction requires the prior written consent of the publisher. / Tous droits réservés. The revue est protégée par la législation sur le droit d auteur. Ne sont publiées que des contributions originales qui n ont pas encore été diffusées sous forme imprimée. The contributions ne sont acceptées qu à la condition que le droit exclusif de reproduction et de diffusion soit accordé à Stämpfli Editions SA et à la Fédération Suisse des Avocats. Toute exploitation et reproduction nécessite l accord écrit de l éditeur. The opinions and views expressed by authors in this journal do not have to correspond to those of the editors or the SAV. / The opinions expressed in the cette revue par les auteurs sont personnelles et n engagent ni la rédaction ni la FSA. LAWYERS REVUE DE L AVOCAT 11/12 /
3 BUSINESS MEDIATION IDEAL ADDITION TO ARBITRATION URS WEBER-STECHER Dr. iur., LL. M., FCIArb, Mediator SAV / SKWM / CEDR, Lawyer, International Arbitration and Mediation, Wenger & Vieli AG, Zurich KATIA RENER Dr. iur., LL. M., Maîtrise en droit, lawyer, international arbitration, Zurich Keywords: business mediation, arbitration, "Arb-Med-Arb" proceedings Business mediation is so far not very widespread in Switzerland. There are still too many psychological barriers in all the groups of people involved. It is precisely “Arb-Med-Arb” processes that can bring about a considerable increase in process efficiency. They can also help promote familiarity and acceptance of mediation for international business cases. Various sets of rules can be used to carry out “Arb-Med-Arb” procedures, for example those of the Swiss Chamber's Arbitration Institution (SCAI) and the International Chamber of Commerce (ICC). I. Introduction In a time of economic uncertainty and administrative constraints, the demand for efficient and inexpensive dispute resolution mechanisms is also increasing. Disputed proceedings are usually time-consuming and costly and additionally hinder the economic activity of the company. For commercial law disputes, an out-of-court solution such as mediation can represent a suitable alternative, even during pending arbitration proceedings, to settle a dispute quickly and efficiently and to maintain or even improve an existing business relationship. This article should briefly show what mediation is (II.), Why business mediation (B2B mediation) is still not very widespread in Switzerland (III.) And the advantages of a combination of arbitration and mediation ("Arb-Med-Arb" ) and could thus contribute to a further spread of business mediation (IV. and V.). II. What is mediation? In mediation, two or more parties try to amicably resolve a conflict with the help of one or more independent third parties, taking into account all important interests. 1 It is a flexible procedure in which the parties have final control over the decision to settle the dispute and the conditions of the solution The role of the mediation person As an independent and impartial third party, a mediation person supports the conflicting parties in negotiating their conflict on their own responsibility and to resolve amicably. 3 Apart from the criterion of neutrality 4, the parties are free to choose the mediation person and can choose them on the basis of their suitability, experience or additional qualifications. 5 1 DANIEL GIRSBERGER / JAMES T. PETER, Extrajudicial conflict resolution, 2019, margin no. See definition of the Center for Effective Dispute Resolution (CEDR) in London, available at: see also DANIEL MARUGG, Arb-Med-Arb a promising variant for arbitration proceedings , ZZZ 2020, S, p.13; Art. 216 ZPO for judicial mediation; Regarding the regulations in the Swiss Rules and the ICC Rules, see IV definition of the Swiss Bar Association below: sav-fsa.ch/de/weiterbildung/mediation/ueber-den-mediator. html. 4 For more details, see GIRSBERGER / PETER, op. a. Cit., Margin no. 452 ff. 5 GIRSBERGER / PETER, op. a. O., Rz ANWALTS REVUE DE L AVOCAT 11/12/2020
4In B2B mediation, this is often done with the participation of lawyers on both sides. 9 In this phase, they usually write short written submissions (10-15 pages) with a few (often agreed) enclosures that are made available to the mediator as a starting point. This phase ends with the conclusion of a mediation agreement, in which important aspects, e.g. the mediation person's fee and confidentiality are regulated. Opening phase: The parties and the mediator will meet for the first time in person or, especially in the current situation of the COVID-19 pandemic, online by means of a video conference. The mediation person explains the procedure and their role in the introduction, and the parties are then given the opportunity to present their opening votes. Exploratory phase: The mediation person helps you to understand more precisely the positions and interests of the parties through questions and active listening in a combination of plenary discussions and, with the consent of the parties, separate private discussions. She agrees with the respective party exactly what (if anything) she may mention to the other party, how and when, from a separate confidential meeting. The private conversations with the parties (so-called "caucuses") are a central element of mediation, which can resolve stuck positions and open up new perspectives for the subsequent discussion in the plenum. 10 Negotiation phase: The mediator works with the parties to more clearly identify the differences between the party positions and interests and helps them to find a solution that can at least be sketched out in the main. 11 Final phase: The negotiation results are specified, if possible a proposal for an agreement is formulated and this is tested for its practicability. In addition to practicability, it must be checked again whether the agreement really satisfies both parties, deals with all relevant points of dispute and minimizes the risk of future disputes. 12 If no agreement is reached, the mediation person and the parties determine that the mediation has failed. The mediation person can, however, if desired, maintain the dynamics of the mediation process for any later attempted agreement through appropriate follow-up contacts. Business mediation (B2B mediation) in particular Most commercial disputes that are the subject of arbitration or state court proceedings can also be the subject of business mediation. The idea of mediation is becoming increasingly popular, especially in larger companies, because if it is successful, it means a large gain in time and a considerable reduction in opportunity costs, and if it fails, it only entails a relatively small loss of time and little additional costs compared to a directly initiated litigation . 14 SMEs seem to be a bit more conservative and still prefer conflict resolution in front of state judges. 15 That in itself is a shame because mediation offers a very suitable conflict resolution tool, especially for SMEs, for which the entrepreneur is usually directly responsible (and not an employed manager). For business mediation, it should be emphasized that companies should not only be represented in mediation negotiations by their party lawyers, but should also be represented by their own decision-makers. 16 III. Why is business mediation so little widespread? Business mediation has so far been relatively little widespread in Switzerland and continental Europe. Why is that? In themselves, many of the potential 6 Corresponding certifications are e.g. B. offered by the above-mentioned CEDR in London, but also by the Swiss Bar Association. 7 MARUGG, op. a. Cit., P. 14 f. 8 GIRSBERGER / PETER, op. a. Cit., Margin no. 484 and margin no. 637 ff .; see also the overview at MARUGG, a. a. O., S More details on the role of the lawyer GIRSBERGER / PETER, op. a. Cit., Margin no. 665 ff. 10 S. also MARUGG, op. a. O., S For a more detailed overview of possible tactics the mediator can use, see e.g. B. The CEDR Mediator Handbook, 2015, pp. 68 ff. 12 The CEDR Mediator Handbook, 2015, S MARUGG, a. a. O., p. 15; see also The CEDR Mediator Handbook, 2015, S To the whole GIRSBERGER / PETER, a. a. Cit., Margin no. 472 ff. 15 Cf. GIRSBERGER / PETER, op. a. O., margin no. So also MARUGG, op. a. O., p. 13. LAWYERS REVUE DE L AVOCAT 11/12 /
5 users agree that mediation offers a very efficient and inexpensive way of resolving conflicts. So there must be some (hidden) reasons that stand in the way of further dissemination of business mediation at a time when the greatest importance is attached to efficient conflict resolution. In the following, it will therefore be briefly discussed what such reasons could be. This requires a look at the personal situation and interests of the parties to the dispute (users), their internal representatives and external consultants and the providers of dispute resolution services. 1. Users of mediation services The parties to the dispute have often long since negotiated unsuccessfully before initiating mediation and have thus lost the belief in an amicable settlement with the other side. 17 You fear that a subsequent mediation will only entail additional expenditure of time and costs, but not a solution. In this phase, at least one party to the dispute is usually ready to initiate a dispute, be it a state judicial proceeding or an arbitration proceeding. Depending on whether the respective user is an entrepreneur (e.g. owner of an SME) or a manager of a large corporation, personal concerns or limited decision-making authority may conflict with the decision to mediate. The person responsible within the company structure very often sees himself exposed to a higher personal risk and wants to avoid a loss of face in the event that mediation fails Perceiving the process as an increased risk. The suggestion of an in-house lawyer to try mediation in the event of a dispute can be viewed critically within the company because the manager responsible has to expose himself during the mediation negotiation and risk losing face if it fails. In general, it can be difficult to find the right time to propose mediation. Out of fear that this could be immediately interpreted as a sign of weakness by the other side, an in-house lawyer often shies away from it. External party representatives External party representatives or legal advisers may be critical of mediation because they are concerned with mediation in general and their role in such Procedures are not familiar enough. In addition, lawyers often feel uncomfortable when they are not responsible for conducting negotiations for their party, as is the case in a contentious procedure, but when they only have an advisory role in the mediation negotiation alongside their clients. In cross-border disputes, legal representatives from different legal cultures can also have different ideas about how mediation should be carried out. 20 If agreement negotiations were unsuccessful in the run-up to the mediation, the legal representatives, due to a lack of familiarity with the mediation process, doubt that the diverging ideas of the parties can be brought down to a common denominator through the additional presence of a mediation person. 21 And in the context of pending court or arbitration proceedings, the legal representatives hesitate to propose mediation because this could be interpreted by the other side as a sign of weakness. Finally, it should be added that mediation can also be less interesting for external party representatives because, if successful, it can be done promptly with little effort and thus generates less fee than a controversial procedure, which is usually much more complex and takes considerably longer. 4. Providers of “Dispute Resolution Services” Lawyers who specialize in international court or arbitration proceedings, in addition to their role as party representatives, are often used to acting as arbitrators, but are not so familiar with the role of mediation. There may also be very fundamental doubts about the effectiveness or the place of mediation between the phase of negotiations and the initiation of arbitration proceedings (or state court proceedings). Even if the role of an arbitrator and a mediation person has certain similarities, there is a significant difference: An arbitration tribunal can and should assess and answer (legal) questions. A mediation person, on the other hand, should hold back both with regard to the parties and with regard to classifying or answering legal questions.This does not correspond to the usual role of lawyers. Finally, for this group of people the fact that mediation is fundamentally less time-consuming (but not less demanding!) And is usually done much faster (and is therefore associated with lower fee volumes) than arbitration, can lead to a certain reluctance. 17 GIRSBERGER / PETER, op. a. O., Rz cf. The CEDR Mediator Handbook, 2015, S cf. JEREMY LACK / RENATE DENDORFER, The Interaction Between Arbitration and Mediation: Vision vs. Reality, Arbitration VZ 2007, S cf. GIRSBERGER / PETER, a. a. Cit., Margin no. 631, see GIRSBERGER / PETER, op. a. Cit., Margin no. 634; LACK / DENDORFER, a. a. O., S LAWYERS REVUE DE L AVOCAT 11/12/2020
6 5. Conclusions Overall, the above statements show that each of the groups of people involved in a dispute between companies has understandable reasons not to favor mediation as a dispute settlement mechanism. Either they do not believe in the effectiveness of a mediation process due to a lack of better knowledge, do not feel comfortable in the role intended for them in the context of the mediation process, interpret the suggestion of mediation as a weakness or shy away from taking responsibility for the process because the risk of a Failure exists. In the following, the question will therefore be examined whether this reluctance can be counteracted with a clever combination of arbitration and mediation. IV. Combination of arbitration and mediation (“Arb-Med-Arb” procedure) 1. Features of the “Arb-Med-Arb” procedure “Arb-Med-Arb” denotes a procedure in which, if necessary, after failed negotiations arbitration is first initiated between the parties. Once the arbitral tribunal has been established, the arbitration proceedings are suspended and mediation is carried out. 22 If the parties are able to resolve their disputes through mediation, the agreement reached can be recorded in an arbitration award with agreed wording, which becomes legally binding and is enforceable. 23 If the parties fail to resolve their dispute through mediation, arbitration will continue. 24 An “Arb-Med-Arb” procedure can already be agreed between the parties in the main contract. The parties can also later, e.g. B. during an already ongoing arbitration, agree on the implementation of a mediation, whereby the best time for the mediation window must be examined in each individual case based on the specific circumstances. 25 Another decisive feature of an “Arb-Med-Arb” procedure is the consistent separation of the functions of mediation person and arbitrator; d. That is, the role of mediator should not be performed by a member of the already constituted arbitration tribunal. 26 This is the only way to ensure that the parties can openly communicate their interests to the mediator in private conversations without having to fear that confidential information they disclose in this context will be used against them in the subsequent arbitration or the arbitral tribunal if the mediation fails (at best unconsciously) influence the advantages of an «Arb-Med-Arb» process An «Arb-Med-Arb» process has various advantages. A party to the dispute that is tired of negotiating after long, tenacious attempts to reach an agreement can use the initiation of arbitration as an exemption and thus show the other party that it is no longer ready to go round in circles, but wants to finally take a step forward. If, within the scope of the arbitration proceedings, the mutual positions and demands are set out in detail in a first exchange of letters, this may result in the possibility of resuming negotiations on the basis of the significantly higher level of knowledge about one's own positions (including one's own weaknesses) and opposing positions. 28 For companies, the additional disclosure of further interests in the context of mediation can serve to provide mutual clarification, which can improve mutual understanding. If these negotiations, which are subject to strict confidentiality, are also accompanied by a professional mediation person, this increases the chances of a successful negotiation result. In-house lawyers and external party representatives were able to thoroughly work out their party's position as part of the initial arbitration proceedings. So you are fully integrated in the process and have an in-depth knowledge of the dispute. In this way, the understanding of mediation as a professional way of resolving conflicts can grow, and the concerns that mediation could be viewed as a sign of weakness can take a back seat. 29 Experience also shows that a better understanding of the positions and interests of the other party increases the likelihood of an agreement. Parties and their representatives are more willing to take a certain risk in order to participate efficiently in the process and to promote settlement negotiations. Since the parties have full control over which information is passed on in the context of the mediation, they can determine its scope and the associated time expenditure. This regularly leads to increases in efficiency and cost savings. 22 MARUGG, loc. a. Cit., P. 16. This article mainly deals with arbitration; a comparable combination is also possible at any time in the context of state court proceedings (Art. 214 ZPO), see GIRSBERGER / PETER, a. a. O., margin no. According to Art. 217 ZPO, the same is also possible within the framework of a state procedure. 24 GIRSBERGER / PETER, op. a. O., margin no. As a rule, the procedural management conference discusses the phase of the arbitration procedure in which a mediation procedure should be carried out, which is entered accordingly in the procedure calendar. 26 Same opinion GIRSBERGER / PETER, op. a. O., margin no. The authors of this article are aware, however, that there are different opinions on this, in particular on the approach that the arbitral tribunal or one of the arbitrators can take on the role of mediation person. 27 MARUGG, loc. a. O., S CAROLINE MING / CHRISTIAN IOVENE, Advantages and Benefits of the Revised Swiss Rules of Mediation 2019 In Light and in Line with the Singapore Convention, ASA Bulletin 2/2020, S cf. LACK / DENDORFER, a. a. O., S LAWYERS REVUE DE L AVOCAT 11/12 /
7 By embedding mediation in an arbitration procedure, the parties achieve the additional security that a settlement reached in mediation can be directly enforced if necessary by converting it into an arbitration award with an agreed wording. 30 Finally, the risk of a statute of limitations expiring is averted: In arbitration proceedings with an international dimension, the arbitration proceedings pursuant to Art. 181 PILA are pending upon submission of the notification of arbitration; In the case of an internal dispute, the lis pendens result from Art. 372 ZPO "Arb-Med-Arb" proceedings based on institutional arbitration rules Today, the majority of commercial international arbitration proceedings are based on contractual clauses that declare the arbitration rules of an institution to be applicable. There are two main sets of rules for international arbitration in Switzerland: the International Swiss Arbitration Rules of the SCAI from 2012 (“Swiss Rules”) and the Arbitration Rules of the International Chamber of Commerce 32 from 2017 (“ICC Arbitration Rules”). In addition, many of these institutions have also issued mediation rules in recent years, including the SCAI in July 2019 a revised Swiss Rules of Mediation and the ICC in January 2014 the ICC mediation rules. These rules allow a tailor-made combination of mediation and arbitration. This is briefly discussed below. A) Swiss Rules and Swiss Rules of Mediation Although the Swiss Rules do not expressly provide for the connection of arbitration with mediation, they do offer several options for carrying out an "Arb-Med-Arb" procedure. Article 15 (8) of the Swiss Rules provides that the arbitral tribunal, with the consent of all parties, can “take steps to resolve the dispute by mutual agreement”. This provision is often still understood today to mean that the arbitrators or the chairperson of the arbitral tribunal can make themselves available to support the parties to the dispute in settlement discussions. Such settlement negotiations then often resemble a kind of audience audience, as is known by the Zurich Commercial Court. On the basis of Art. 15 (8) Swiss Rules, an arbitration tribunal can also suggest that the parties integrate a mediation window in order to reach an agreement with the help of a mediation person in a confidential 33 mediation procedure separate from the arbitration procedure. In practice, it is usually advisable to provide the mediation window after the first comprehensive exchange of correspondence has been carried out in order to be able to fully utilize the advantages of the combination of arbitration and mediation described above. If the parties come to an agreement, the arbitral tribunal can then record the agreement in the form of an arbitration award with the agreed wording without justification (Art. 34  Swiss Rules; see also Art. 18  Swiss Rules of Mediation). According to Art. 16 (5) Swiss Rules of Mediation, the SCAI Secretariat can certify to the parties and the mediation person that mediation has taken place and has been concluded with a settlement; According to Art. 17 (2) and (3) Swiss Rules of Mediation, the Secretariat can issue a certified copy of the settlement agreement upon request and after appropriate examination and certify its authenticity to the parties. This can be of great use in recognition and enforcement proceedings before state courts. 34 Articles 18 and 19 of the Swiss Rules of Mediation also contain specific rules on the combination of arbitration and mediation, in particular with regard to the supportive involvement of the SCAI Secretariat. B) ICC Arbitration Rules and ICC Mediation Rules The ICC Arbitration Rules also offer the possibility of mediation within pending arbitration proceedings. The arbitration tribunal and the parties can thus agree in the procedural management conference to be held after the arbitration tribunal has been constituted that a mediation window will be inserted at a certain point in time as part of the arbitration proceedings. 35 The ICC Rules of Arbitration also contain a reference under the model clauses to multi-level dispute settlement clauses that propose a combination of arbitration and mediation. 36 The mediation process is strictly confidential and there is strict separation between arbitrators and mediators and arbitration and mediation proceedings. 37 A settlement reached through mediation can then be recorded in an arbitration award based on the consent of the parties in accordance with Article 33 of the ICC Rules of Arbitration. Even if this is not explicitly mentioned in this provision, such an award does not require a justification in order to meet the requirements of the ICC arbitration rules MING / IOVENE, a. a. O., S GIRSBERGER / PETER, op. a. O., Rz International Chamber of Commerce (ICC). 33 Art. 13 Swiss Rules of Mediation. 34 MING / IOVENE, loc. a. O., S Article 24 ICC Rules of Arbitration i. V. with Annex IV “Process Management Techniques”, let. Hi). 36 p. 82 of the Arbitration Rules and Mediation Rules, available at: ICC-2017-Arbitration-and-2014-Mediation-Rules-german-version. pdf. 37 Art. 9 and 10 (3) and (4) ICC Mediation Regulations. 38 JASON FRY / SIMON GREENBERG / FRANCESCA MAZZA: The Secretariat s Guide to ICC Arbitration, A Practical Commentary on the 2012 ICC Rules of Arbitration from the Secretariat of the ICC International Court of Arbitration, 2012, Art. 32 Rz ANWALTS REVUE DE L AVOCAT 11/12/2020
8 V. Conclusions Although it is generally recognized in business circles that mediation can be an efficient and cost-effective mechanism for resolving conflicts, business mediation is still not very widespread in international cases compared to arbitration; State jurisdiction is still preferred in internal disputes. Responsible for this are not primarily factual arguments, but rather psychological barriers in all groups of people who are involved in such disputes. One possibility to counteract these barriers was presented in this article. If mediation is embedded in arbitration proceedings, for example within the framework of the institutional rules of the SCAI or the ICC, the associated procedural safeguards and advantages, especially for the lawyers involved, be they in-house lawyers or external lawyers, can dispel certain concerns and theirs Change attitudes towards mediation; Access is easier if the process has been clearly defined and the parties' positions have been worked out in detail beforehand, and discomfort diminishes when one sees one's own role more clearly and knows that, if necessary, the arbitration process can be continued without much loss of time. If the in-house lawyers and the external lawyers have been able to break down their inhibitions, this automatically leads to a different approach to advising their clients. They tend to dare to include corresponding clauses in the contracts and to propose a mediation window to their clients in an arbitration procedure or to attempt mediation directly before a contentious procedure is initiated. Well-structured “Arb-Med-Arb” procedures can definitely contribute to the increased use of business mediation. But they are probably not sufficient. It is also imperative that a large number of in-house lawyers, attorneys and providers of dispute resolution services familiarize themselves with mediation and get to know the various communication and negotiation techniques that are used in mediation. The best way to do this is to take part in appropriate training or further education. It is very much to be welcomed that from 2022 the SAV will offer specific mediation training with a focus on the target group of lawyers who, after passing exams, entitle them to use the title Mediator SAV, Mediator SAV. 39 It is to be hoped that the company-specific aspects of business mediation find their appropriate place in it, in order to also inspire colleagues, who otherwise primarily work in the world of court and arbitration, for this training. Then business mediation also has a real chance of being given the place it deserves to resolve economic conflicts. 39 See the information on the new mediation training concept of the SAV and future regulations in this booklet. Secure data exchange for lawyers *** ANWALTS REVUE DE L AVOCAT 11/12 /
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