Academic journal article Defense Counsel Journal

Mediation - What Is Still to Be Learned in Scandinavia?

Academic journal article Defense Counsel Journal

Mediation - What Is Still to Be Learned in Scandinavia?

Article excerpt

This article originally appeared in the March 2014 Alternative Dispute Resolution Committee newsletter.

IN Denmark and the rest of Scandinavia, the idea of alternative dispute resolutionsuch as mediation-is still young and full of unutilized potential. Ten years have gone by since the mediator education giving lawyers the opportunity to become certified mediators was first introduced in Denmark. Therefore, it is season for a retrospect of the past decade of mediation in Scandinaviahow has the development been and where can we improve as we go forward?

The Development in Scandinavia

Since 2003, Denmark has promoted a mediation education program aiming at educating lawyers to become certified mediators. Mediators are members of the organization Danish Mediation Lawyers and, with the support of the Danish Bar and Law Society, this organization established the Danish Mediation Institute with a view to offer mediation solutions in private and commercial disputes. Since 2003, mediation has also been offered by the Danish Institute of Arbitration.

At the time when the education program was first introduced, no Danish lawyers were certified mediators or the like, and the number of commercial disputes settled by mediation was very limited. At that time, meditation was only used in a few family law disputes. Now, according to official sources, roughly 400 lawyers are certified mediators, and 20 disputes were settled by mediation in 2013, as compared to 15 in 2012.

These are the official figures provided by the official Danish Mediation Institute. To these figures must be added an unknown number of ad hoc mediation cases which have presumably also taken place.

Based on information provided by the official mediation institutes of the two other Scandinavian countries, Sweden and Norway, the situation is the same throughout the rest of Scandinavia.

The figures show that development is heading in the right direction. However, as compared to, for instance, the U.S., the number of disputes settled by mediation in Scandinavia is still insignificant and disappointing.

Mediation as a Cost-Saving Means

Mediation is time-saving and consequently cost-saving. Obviously, no court or arbitration tribunal can compete with a time frame of three months in which most mediation cases are concluded.

Contrary to litigation and arbitration, mediation implies resolving the dispute according to the interests and needs of the parties and, therefore, fundamental legal arguments, such as the liability for damages, the lack of notice or the calculation of the claim, lose the spotlight.

Mediation can be seen as a compromise solution leaving no winners and no losers. However, since the unchallengeable truth is that time is money, lawyers and their clients ought to make up their minds as to whether winning a case for them means a court approval of their legal arguments or a settlement of the case with an "as much as possible outcome", which the counterparty is willing to accept.

If both parties to a dispute would make up their minds on the latter-which I assume will often be the case-mediation could also be seen as leaving two winners. And by choosing mediation, the parties may, following a settlement, continue to do business with each other, which would have been completely compromised by any award or ruling.

Costs are of course involved when appointing the mediators and preparing the mediation meeting, but the savings are still very significant as compared to litigation and arbitration as approximately 70% of all mediation cases results in settlements. Only the remaining 30% of all mediation cases proceed to litigation or arbitration and, even then, the case has arguably been trimmed and the essence of the dispute is clearer than before the mediation, and therefore the costs have not been futile.

Difference in How We See Disputes?

It gives food for thought why, after a decade with all options open for resolving disputes by mediation, we Scandinavians still lag way behind the Americans. …

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