The overall aim of a commercial mediation is, in a confidential environment, to quickly ease tensions in commercial relationships, prevent misunderstandings and allow the parties to develop conflict solutions which, as far as possible, satisfy the interests of both sides.
I am in favour of in-person mediation sessions where the companies’ representatives meet together with the mediator in joint sessions and also separately in caucuses. However, I am passionate about expanding through the online video-conferencing platform zoom.us such joint mediation sessions and breakout meetings to companies regardless of their geographical location whereby increasing their availability since there is no need to travel.
Commercial conflicts between companies are part of business life as any other conflict is part of human life. Companies are run by human beings.
Commercial conflicts arise when human beings wind up having differing perceptions of what they believe to be their commercial relationship, their common project, or their relationship of competition. There is no objective verity, no objective right or wrong in this World. There are, however, the subjective perceptions of company representatives and market players.
Nowadays, companies aim to resolve their commercial conflicts by means of cost and time-effective negotiation rather than through lengthy, costly, and risky litigation and arbitration proceedings. Due to innovation and the use of the Internet, parties are increasingly aware of their party-autonomy and their freedom of decision-making. Therefore, the traditional conflict resolution mechanism of state court decisions, an imposed order characterized by a vertical and hierarchical social structure, is giving way to negotiation as a conflict resolution tool that is characteristic of a horizontal social structure (the so-called “negotiation revolution”, Roger Fisher & William Ury, Getting to Yes, negotiating agreement without giving in, 3rd ed. 2012, preface).
However, traditional negotiation is not very different from litigation: the companies advance their respective legal positions and present their requests. In so doing, they often pressurize the other party using what might later prove to be “false power”.
Therefore, in order to avoid the hardening, a blockage, and a new escalation of the conflict between market players, the use of an external neutral and independent mediator will allow the parties and their lawyers to concentrate on the content of the negotiation, whereas the mediator will be in charge of leading them empathically through the structured negotiation proceeding. The mediator has no power over the merits of the dispute, only the parties have decision power.
As mediator, I will help the companies’ negotiators in accordance with the four key lessons of “principled negotiation” developed by Fisher and Ury, to separate the people from the problem, to focus on interest rather than positions, to develop, in a brainstorming session, as many options for mutual gain as possible, and to base decisions on objective criteria. I will, furthermore, encourage the parties to identify overlapping respective interests and to rely on “true negotiation power” by inviting them to continuously assess their best alternative to a negotiated agreement (BATNA) throughout the mediation procedure.
I will encourage the parties to meet in joint sessions and will call for caucuses when appropriate.
Since I believe in the parties’ autonomy, my mediation style is facilitative. However, upon request of both companies, I may adopt a more evaluative approach to the mediation.
Thanks to my legal background in intellectual property, IT, licences, distribution, competition, complex industrial projects, and international business law, as well as my psychology and intercultural communication skills, I am regularly retained as mediator for the resolution of complex and emotional commercial conflicts, often transnational, in the English, French and/or German languages.
My practice as counsel in mediations goes back 20 years and 14 years as mediator.
As mediator, I was – among others – in charge of the following disputes, between:
- a luxury group and a French fashion designer about alleged contract violations and other infringements (French, amount not specified);
- an aircraft manufacturer and a manufacturer of aircraft cabin interiors about an alleged violation of contractual obligations (English, €7 million);
- a Tunisian distributor and a French, UAE, and US manufacturer about the early termination of a distribution agreement (English/French, €2 million);
- 75 French and Swiss private persons and companies about alleged violations of provisions contained in a national Consumer Protection Code (French/German, €600,000);
- an American machinery producer and a Swiss packaging manufacturer about express warranties under a supply agreement and its early termination for convenience or fault (English, USD74 million);
- a German and a French company about the early termination of an IT project (German/French/English, amount not specified);
- European, American, and Arabian companies about the alleged breach of a joint-venture agreement for the exploitation of oil and gas fields (English/French, USD1 billion);
- two European companies about the technology of Augmented Reality for the media and entertainment industry which has already lasted 6 years with court cases pending in various jurisdictions of different countries (English/French, €1 million);
- two internationally renowned wine estates about an alleged trademark infringement (French, amount not specified);
- a French online distributor and a German provider of digital data about alleged contract violations, anti-trust and copyright law issues (German/French, €3 million);
- a French actress and her agency about the performance of an agency agreement (French, €300,000);
- Indian and American parties about an alleged incomplete technology transfer under a licensing agreement (English, USD400,000);
- 16 European TV broadcasters and collection societies about aspects of Time shifted TV viewing (Replay TV, Catch-up TV) and the collection and distribution of fees for copyrights and neighbouring rights (German, USD40 million);
- two European societies about the validity of international licensing agreements according to anti-trust laws (English/French, USD300 million);
- several European competitors about an alleged trademark infringement with court cases in many parts of the world for more than 25 years (English, amount not specified).