Complex Mediation Requires Extensive Study
How should a mediator approach complex disputes? First, by understanding the situation and studying the case thoroughly. This was the recommendation of American mediator Gary Birnberg, guest speaker at the workshop organized by the Mediation Chamber (CMed) of ABPI’s Dispute Resolution Center (CSD-ABPI). He led the workshop titled “Facing the Challenge: Approaches to Resolving the Toughest Conflicts,” which was opened by the president of CSD-ABPI, Manoel J. Pereira dos Santos, and moderated by CMed director Karin Klempp Franco and deputy director Marcos Chucralla Blasi. The event took place on October 16.
Birnberg, a lawyer, mediator, and arbitrator specializing in solving complex and international commercial disputes, emphasized the importance of the mediator holding preliminary meetings with the attorneys of both parties, but separately, gathering all available documentation at this stage. “The first step is to understand the situation and identify any key elements, whether they involve technology, laws, or any other point. It is crucial to comprehend, know what works, and study to demonstrate that I understand what’s happening,” Birnberg said.
In the first conversation with the lawyer, Birnberg explained, the mediator begins to uncover what isn’t immediately apparent. “It’s these non-obvious things, little secrets, that the mediator uses to make a difference, both in the initial meeting with the parties and throughout the mediation process.” Sharing examples of mediations he had conducted, Birnberg highlighted the importance of confidentiality. “I specifically ask for a detailed explanation of key issues, strengths, and weaknesses of both sides’ positions.”
The speaker emphasized the importance of instilling confidence and certainty in resolving the conflict. “None of that talk of ‘I don’t know, maybe we’ll reach an agreement, maybe not.’ On the contrary, it is essential to show that resolution is possible, that we will get there today, and that attitude is also part of the mediator’s role.”
For Karin Klempp Franco, the event demonstrated how mediation can resolve simple and complex cases and was very valuable in presenting practical experiences, existing conflicts, and impasse situations. “We could conclude that mediation is always valid and does not exclude arbitration, as the essence of mediation is informality, flexibility, and the willingness of the parties.”
If you are an ABPI member and missed the workshop, you can watch it at any time on our website.
