Martin Hauser is a passionate attorney. As a Franco-German, he brings a multicultural perspective to his work. He is convinced that disputes do not always have to be resolved in court. A mediator for the past eight years, we met with him to learn more about this alternative dispute resolution method, which is attracting growing interest from businesses.
Carrières-Juridiques.com. You’re a lawyer. How, when, and why did you become a mediator?
Martin Hauser. I completed my undergraduate studies in Germany and Switzerland. Upon completing my studies, I wrote a doctoral dissertation on Franco-German comparative law. For several reasons, I decided to co-found, with two partners, a firm in France in the late 1980s specializing in intellectual property within the fashion and luxury sectors. I very quickly realized the limitations of relying on the courts, particularly in international cases. This realization initially led me to international arbitration.
I was also seeing more and more court rulings that were unsatisfactory to the parties involved, accompanied by considerable delays and high final costs for those involved in the litigation. With the advent of new technologies, the business world has accelerated to such an extent that the pace of the justice system is now out of step with the interests of companies. It was around 1998 that I first heard about mediation. It was said to be a faster, less expensive, and more consensus-based way to resolve conflicts. Out of curiosity, I then attended my first training course organized by WIPO (World Intellectual Property Organization) in Geneva. I was fascinated by the diversity of the participants and by discovering a completely different approach and method for resolving conflicts.
“It was said that this would be a faster, less expensive, and more widely accepted way to resolve the conflict.”
C-J.com. Can you explain a little more about what mediation involves?
M. H. In France, there are two types of mediation. On the one hand, there is judicial mediation, as described in the Civil Code, in which the judge appoints a mediator with the consent of the parties. On the other hand, there is non-judicial mediation, where the parties decide, outside of a court proceeding, to use mediation. In both cases, mediation is a structured yet free and flexible process—that is its main advantage. As a mediator, I listen to the parties together or separately at a neutral location. Their attorneys are present, but their role differs from that in court. It consists of advising the parties during their negotiations with the other party.
One of the objectives—at least in commercial mediation—is to reach a win-win agreement that best serves the interests and needs of the parties, even though the legal positions they express are often irreconcilable. It is essential to analyze the conflict from both a personal and a material perspective. This is often an interesting psychological exercise. Mediation makes it possible to explore and identify the true interests and needs of each party at the heart of the conflict. While these may not be the same for both parties, they are often reconcilable, allowing the parties to find reasonable solutions that benefit everyone involved.
“We must be able to analyze the conflict from both a personal and a material perspective.”
C-J.com. How do you prepare for mediation?
Mr. H. There are no set rules. Each mediator prepares as they see fit. Some of my colleagues prefer not to receive case files so they can stay focused on the parties’ perspectives. For my part, I handle mediations primarily in the business-to-business sector, also known as commercial mediation. The cases are often complex and technical. I feel it’s necessary to understand the terms involved before meeting with the parties. In addition, I take the time to meet with the parties’ attorneys beforehand and discuss the mediation process with them. I ask them to work with their clients to consider alternatives to a settlement in the event that mediation fails. This allows them to assess how far they can go in the mediation negotiations.
C-J.com. Is a lawyer the best person to take on the role of mediator?
Mr. H. A mediator is not necessarily a lawyer. He or she could be a psychologist, for example. However, commercial law disputes often require the expertise of a mediator who is a legal professional. For certain cases, I think it would actually be very beneficial to conduct co-mediation sessions led by a team consisting of a lawyer and a psychologist.
C-J.com. How many cases have you handled as a mediator? What is the success rate?
Mr. H. I have been involved in twenty-five commercial mediations, either as a mediator or as an attorney representing a party in mediation. Of those twenty-five mediations, only three were unsuccessful. There were very specific reasons for these failures, primarily because the parties refused to attend and participate in the negotiations themselves. They preferred to be represented by their attorneys during the mediation.
Mediation is effective because the parties participate of their own free will. They may be very angry or deeply upset at times, but they rarely leave the mediation room even though they are free to do so at any time.
C-J.com. So this is something that you What advice do you give to young lawyers?
Mr. H. It is important for young people to learn negotiation skills, which form the basis of mediation. It is now essential to understand the basic techniques of negotiation and to know what mediation entails. The CMAP offers excellent mediation training programs. Thierry Garby offers excellent negotiation training programs. While young lawyers are unlikely to practice mediation as mediators right from the start of their careers, they must be able to analyze a commercial dispute, develop a negotiation strategy, and support their clients during negotiations—including those conducted through mediation. Young lawyers must be aware that the international culture surrounding commercial disputes is changing, favoring resolution through negotiation. Successful negotiation requires methodical preparation.
“It is important for young people to learn negotiation skills, which form the basis of mediation.”
Reasoned negotiation—and even more so, mediation—are enriching experiences, both on a human and intercultural level. To become a mediator, one must undergo advanced training and pass certification exams. The role of mediator requires a certain level of professional experience and a certain degree of objectivity.
C-J.com. Are you also considering collaborative law?
Mr. H. I’m not very familiar with collaborative law. However, I do think that mediation works because of the presence of a third party. The mediator acts as a catalyst. His presence also provides psychological support.
C-J.com. So you’re a firm believer in mediation…
Mr. H. And I am by no means the only one. Many business leaders and general counsel—often from large corporations—are convinced of the benefits of mediation and favor it as a way to resolve commercial disputes.
Mediation is an effective process when the parties agree to meet in the presence of their attorneys to seek to understand the other party’s perspective, with the goal of negotiating a solution in person. They play an active role in crafting this solution and therefore naturally commit to it. This makes it easier to implement, whereas it is more difficult within the judicial system. The process is far less costly, and the parties are consistently satisfied with the outcome. It is also a useful tool in a lawyer’s day-to-day practice. The desire to resolve a conflict in a reasoned manner becomes second nature. As a lawyer, I am often led in difficult negotiations to use certain techniques that a mediator would employ to help my clients resolve conflict situations.
To date, the number of mediation cases remains small compared to the sheer volume of litigious cases. We need to change our approach and explain to our clients who want to confront their “opponent” that, contrary to certain misconceptions, mediation is more conducive to such a confrontation than the judicial system. I am convinced that third-party-assisted negotiation through mediation has a promising future, provided that we clearly explain the benefits of this conflict resolution process and give the parties the opportunity to experience it for themselves.
Interview by Capucine Coquand, carrières-juridiques.com, July 2015