Note: this interview was originally published in Spanish in “La Notaria” magazine in 2014. The original article can be view here.
Throughout his extensive career, James South has developed training courses in institutions and universities of universal prestige, including the Notary College of Catalonia, and has been an advisor for the World Bank, the Foreign and Commonwealth Office, the Ministry of Justice in Bosnia-Herzegovina, and the Sindh tribunals in Pakistan. Currently, he is serving as the Global Director of Training and Advising at CEDR.
What is CEDR’s primary goal? Our primary objective is to help businesses and individuals in conflict to resolve their issues in a better way than going to court. We help in negotiations in order to arrive at an agreement that will be suitable for both parties, and that will be better than the judgement provided by a tribunal or a court.
What are the main advantages of mediation? First of all, an advantage is that mediation takes significantly less time than going to court – it’s extremely efficient. A mediation might take only one day, or at most, a month, whereas a case that goes to court could take years. The second advantage is in the price: the cost of a mediator for one day, plus lawyers (who are typically present in commercial cases) is much less than in the case of the years of proceeds in court. Finally, a third important advantage is that mediation allows the parties involved to maintain a working relationship. If parties choose to go to court, the relationship is bound to be destroyed, whereas if parties mediate, it is possible to keep a good (or workable) relationship, and a business partnership could be continued.
In which countries and in which areas is mediation in the most advanced phase?
Mediation began in the Anglo-Saxon countries: the United States, and afterwards in England, New Zealand, and Australia, which is where the advantages are the most visible. But now mediation is used all over the world. CEDR works in Africa, Asia, and now in many parts of Europe due to the European Law of Mediation, which states that for a conflict in the continent, the mediation agreement will also be valid in other EU countries. Currently, every country in Europe agrees with and abides by the Law of Mediation. A law that is valid for a dispute in Spain would be similarly valid in any other part of Europe. This is why now it is a good time for mediation in Europe.
For the case of the areas in which mediation is most utilized, those would be commercial, civil, family, and EU disputes.
In Spain, statistics show that mediation is only used for 1% of cases. How can we improve this?
In fact, in most of the world, above all, the lawyers are the ones who fear mediation a bit, because they are used to the process of going to court. They think that mediation will put them out of work and that they will lose money. But that will never happen: there will always be cases that go to court. Mediation is just another option for solicitors and notaries to help their clients. It is very important that lawyers understand that it is an opportunity for them as well, to be in the mediation with their clients. They should understand this, because it is through the lawyers that this message can also arrive at the clients. And clearly, if they can see the advantages that I mentioned earlier in relation to time, cost, and the maintenance of relationships, the client will be satisfied and will be more likely to recommend that solicitor or notary for mediation the next time.
What percentage of mediations are successful?
According to studies conducted by CEDR in relation to our mediations, approximately 70% of mediations reach an agreement in one day, and another 5% reach agreement a bit later. In total, 75% of cases arrive at an agreement. We cannot guarantee an agreement, because the process is voluntary, and we cannot decide to make a decision ourselves – that must be the choice of the client. But nevertheless, the percentage is high.
In spite of the advantages, we mentioned that in Spain, mediation still has not been implemented to the highest degree. What do you think are the biggest reasons?
I think that the courts need to be more active, as is the case in other parts of the world. There needs to be a structure within the court system that encourages the use of mediation. Judges need to have the power to say to parties that are going to go to court that they should go to mediation first. Currently, the Law of Civil and Commercial Mediation helps – rather than just replicates the European Law of Mediation, it addresses domestic issues as well. Finally, it’s also important to continue educating about mediation and to create a mediation culture.
What characteristics should a mediator have?
In general, the three most important traits are as follows: first, a mediator should be able to develop a good working relationship with the parties, since they are in a difficult situation in relation to each other. Second, the mediator should know how to steer and conduct the process. And third, the mediator should help the negotiation between the parties. The mediator must understand how they can help. In relation to the mediator’s background training, it depends on the topic – it might be better as a lawyer, a doctor, or an architect, for example. The majority of mediators in the commercial and civil sector come from the legal world and have been trained as lawyers, but there are some who have not. In England, the non-lawyers make up 30% of the population of mediators. In family mediations, there are many more mediators from different backgrounds.
What do you think notaries could contribute as mediators?
I think that notaries have a very important role in civil and commercial mediations – they already have a background knowledge of the legalities of the context. When a potential agreement is reached, you need to know what the other option is – what will happen if the agreement does not work and the case goes to court. The notaries know this. Furthermore, they know the fundamental positions of each party, and how to explore and negotiate using these. In this sense, notaries have a strong ability to develop the mediation.
What are CEDR’s main motives in choosing the Notary College of Catalonia as the exclusive centre for training mediator trainers?
In the year 2012, I went there for the first time in order to launch a joint project, in coordination with the European Union, with the goal of training mediator trainers. It was clear to me that the College is very active and open to new ideas in this regard, and that its goal is to further develop this type of work for notaries. Afterwards, with the European Law of Mediation coming into force, we said that now is the time to launch a course on training the trainers. It has been extremely important for the course to have a good uptake because of its quality – and the College has been very vocal that parties should be able to rely on great mediators. That’s the mentality we’ve been working with.
Which partners is CEDR working with?
We often work with law schools, in addition to other mediation organisations in different parts of the world – many of which do not yet have mediation as an established method of dispute resolution. We also work on individual projects – for example, working with a court to develop a mediation programme within the court with the judges, lawyers, and mediation associations. One can we worked on in Egypt, in which we worked with the Commercial Court, the judges were not the final destination, but rather worked in the preparatory stages, making them the mediators.
What is the difference between mediation and arbitration?
The biggest difference is that the mediator does not make any decisions, he only helps to move the process along by easing the relations between the parties and helping with the negotiation. It is the parties themselves who make the decisions and who decide if they want to reach an agreement and what will be included in the agreement. The mediator might offer his opinion and advice, but never makes the decision. In arbitration, the arbitrator makes the decision. Additionally, as I mentioned earlier, mediation is much cheaper than arbitration, which in this regard would be more similar to taking a case to court (or even more expensive). Mediation is also more time-efficient than arbitration. Furthermore, in the case of a business dispute, it is always advantageous to have those with interest in the case making the decision, rather than receiving a verdict from a third person, so that the parties can remain in control. In arbitration and court, this option is not a possibility.
Is justice of the 21st century brushing off mediation?
I believe that we live in a world full of conflict, and if we want to continue as a society, we need to develop processes that prevent us from fighting all the time – I believe that is what citizens need. In this century, the processes by which we arrive at an agreement with another person are significantly better than those processes with an adversary.
It is true that, as with any development, mediation is advancing very slowly in its beginning phases, because we are talking about a change in the culture of the legal, social, and personal aspects of conflict resolution, and that takes time. But slowly, bit by bit, it is changing. For that to happen in Spain, it is imperative that law schools continue developing their role to strengthen the process of mediation.