“To be successful, negotiators must recognize that signing a contract is just the beginning of the process of creating value especially during long term negotiations.”
The agreements reached by our Law Office were first on the list (January- February2015) in the Courts of First Instance both in Athens and Piraeus.
We believe in the pioneer process of Mediation, as part of the Greek State Action Plan for achieving social peace and accelerating the administration of Justice.
Indeed, in two separate cases, the Judicial Mediation Agreement, which we signed, has the serial number 1 in the Athens Court of First Instance. So has the serial number 1 the Private Mediation Agreement in Piraeus Court of First Instance.
The Mediation Agreement, becomes a public document from the moment it is recorded in the Court of First Instance, therefore, enforceable. However, for reasons of protection of personal data of the parties, we do not display the parties’ and the lawyers’ particulars.
The First Mediation Agreement
in Athens Court
The First Mediation Agreement
in Piraeus Court
The Mediation Stages
“Negotiation is defined as the process of communication (written, verbal or otherwise) carried out between at least two or more parties (individuals or groups), originally holding different positions or interests, were conflict of interest arises. The dynamic and going on interaction of the parties is pursued every time through this process, in a way that each party gains directly or over time the maximum possible benefit (measurable or not) for himself or the third party. The kind of benefit is mainly determined by the current needs or goals pursued by the parties.” (Karageorgiou Dimitrios, Koratzani Amalia, Mariolis Michael, Niafas Evangelos, Founding Members of the Hellenic Negotiators’ Association, 2014)
In the photo you see the hotel by the railway station in Lausanne, Switzerland. The flags of the countries are placed in pairs- “the states which originally held different positions or interests, were conflict of interest arose.” Specifically from left to right: 1) Germany-Italy 2) Greece-Turkey 3) Israel -Palestine 4) China- Japan 5) America- Russia 6) France 0Britain. (Photo archives 2014 by Natalia Liaropoulou).
In order to solve a case through the process of Private Mediation or Judicial Mediation, four stages of negotiations are followed.
In the first stage the attorney informs his client about the alternative dispute resolution and he suggests the most appropriate to the case. The negotiation challenges which the attorney may meet at this stage are due to: a) the ignorance of the client about Private Mediation and Judicial Mediation b) the resort to the justice system for vindictive reasons c) the client’s bias against his lawyer (alleged lack of aggressiveness when the lawyer proposes ADR.)
In the second stage, after the client has agreed to bring his case to Private Mediation or judicial Mediation, the Accredited Mediator for Private Mediation or Chairman of First Instance for Judicial Mediation, informs the attorney of the other side, about a pending application for resolution of the case through Private Mediation or Judicial Mediation.
In the third stage, the attorney of the other party informs his client about the pending request for resolution of his case through Private Mediation or Judicial Mediation. The attorney of the other side may at this stage meet the same negotiation challenges as at the first stage. He may also be faced with the mistrust of his client about the incentives of resolving the case through Private Mediation or judicial Mediation.
In the fourth stage this potential suspicion is removed and the negotiation challenges are turn into value added by the Accredited Mediator or the Chairman of Court of First Instance, who clarify the advantages of Private Mediation and Judicial Mediation in private meetings with the parties. In the joint meetings position- based or interest- based negotiation takes place under the following considerations:
Position- based and interest- based Negotiation
During Alternative Dispute Resolution (ADR) processes, we focus on moving beyond positions and try to ask the parties, what the underlying interests that the people negotiating are interested in, are. In other words, the parts are not asked “What do you want? What’s your position?” Instead, they are asked “Why do you want it?”
Let’s take the example of a cargo of oranges which is claimed by two traders. Until this dispute is settled by the Court, the oranges will be definitely rotten and the two traders will lose money, time and energy. But if a negotiator asks the two traders the reasons for claiming the oranges, maybe the answers would be that the one trader wants the oranges for their juice and the other one wants the oranges’ skin for making sweets.
So if the cargo is not equally distributed to both traders, neither is it granted to one of them, but each trader takes what he is truly interested in, both traders will be satisfied and extra value will be created in this deal in comparison with the value of the initial claims.
When we make a deal we must know if the process is a dispute resolution or deal making. In a dispute resolution we look back to the past trying to resolve a dispute, we look backwards, we are more positional. However, even if we resolve a dispute, we can simultaneously make a deal, if we are looking forward and are focused on the interests of the parties. Even when we are dealing with a dispute resolution negotiation, we should be thinking: “How can I focus on the interests of the parties, to make a larger pie? How can I develop a solution that benefits both sides?”
Types of dispute resolution
The alternatives to litigation types of dispute resolution are Arbitration, Mediation, and Negotiation.
The third party processes are Mediation, Arbitration, Litigation.
The processes related to finding the underlying interests of the parties by which we want to build what can benefit both sides are specifically negotiation and mediation. In some cases arbitration could also be used. The legal processes are litigation and arbitration, where the judge or the arbitrator decides, who’s right or wrong, usually based on a legal rule.
The main reason why people apply to Courts is not law- breaking but relationship- breaking. However, the cases are settled according to the legal positions of the parties without taking into consideration their underlying interests.
So compensation for moral damage may be awarded by the Judge, although the Judge can not order the unsuccessful party to apologize, except in particular cases. However, even in these particular cases the unsuccessful party is forced to apologize, even if he does not feel obliged to do so. Contrary to litigation, in Alternative Dispute Resolution when negotiating focuses on the interests, the parties willingly satisfy the real interests of the counterparts.
Commercial- business relationships
Most business-to-business negotiations are dominated by discussions over financial issues (such as price) and risk allocation (such as limitation of liability and indemnification). They do not contribute to the win-win approach that negotiators claim they would prefer. (IACCM, 2013/14 Top Terms (worldwide survey of negotiators). In brief, financial issues and risk allocation are not important issues.
While the interaction of people with, for instance, computers, has been widely studied, the familiarisation of people with contracts has not. Many contracts seem to be drafted to work predominately as legal tools rather than managerial tools. Business contracts focus on contract failure (IACCM, 2009) rather than on supporting the needs of contract users and their companies.
These are the differences between a modern business contract based on the negotiation of real interests of the parties and a traditional business contract:
1) Although a modern contract is designed with managerial tools a traditional contract is dominated by legal rules.
2) A modern contract guarantees success but a traditional contract is preparing for failure.
3) A modern contract creates value while a traditional contract prevents loss.
“I was ruined twice in my life, once when I lost a lawsuit and once when I won one.”. Voltaire.
Dispute prevention actually goes further than ADR: Before even getting to a dispute, we are looking for ways to prevent the dispute from arising at all. Dispute prevention means that it’s more important to predict what people will do than to predict what the Judge will decide. The preventive law question is not: “Will we win in court?”, but “What is driving people to court?”
By dispute prevention, companies can learn from clients’ experiences. Companies can improve their processes and do what is right which could rarely happen under the traditional model where companies refuse to admit that something was wrong.
George Siedel, Successful Negotiation, University of Michigan, Coursera.