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Like it or not, you are a negotiator

Impressions of the ICC Mediation Competition 2018

Mediators, professors, students and enthusiasts from over 32 countries gathered in February 2018 at the ICC Mediation Competition, which is the most important competition and occasion to meet with peers and professionals of the mediation world annually. For six days Paris was the epicenter of Mediation. It is an incredibly intensive but productive and creative week, both for the professionals and the students. 

At the annual competition, traditionally organized by the prestigious International Chamber of Commerce, teams of university students, such as my team from the KU Leuven, seek to craft their mediation skills and meanwhile have the opportunity to interact with mediation professionals. 

The ICC finds it important to bring students and professionals together who both acknowledge the benefits of mediation and respectively seek to improve themselves and also to give guidance to the younger generation. This year’s team from the KU Leuven consisted out of Cédric Bruyninckx, Nicolas Geerardyn, Ronald Hauwaerts, Ewout Goudsmedt as our coach and myself.

The challenge for the delegates in Paris is to appease the jury with their talent for mediation in the role of client or lawyer and ultimately strive for a place in the final. Both client and counsel are played by students whilst the mediator is a professional. The competing teams, which consisted out of two law students, one engineering student and one philosophy and law student, must be prepared to familiarize themselves with complex business mediations through inter alia role plays. It is important to know that the cases at the ICC Mediation competition are either written by professionals or based on real cases. The cases focus mainly on commercial disputes from workplace disputes and simple contractual disputes between businesses, to disputes between financial institutions and consumers, between creditors and corporate debtors in the context of an approaching insolvency. However, the form – surprisingly – is more important than the content. Being right is not sufficient, you also need to adhere to the format as prescribed by the ICC. In the end the mediation competition is a simulation. Therefore, if you wish to appease the jury, you need to be fully aware of which role to play in the simulation. 
Some key take-aways 
Hereafter follow some key take-aways of what I and my fellow team members learned from participating in the ICC mediation competition in Paris and which strategies will be most successful.

Firstly, realize fully that the mediator provides a very realistic account of interventions and facilitation. Consequently, do not forget to allow the mediator at appropriate times to help facilitate the mediation session and call for a break whenever this is appropriate. Besides that, take special care for your interaction between client and lawyer. 

Secondly, it is strongly encouraged to perform in accordance with the score sheet. The score sheet consists out of three sections: advancing your interests, working with the other party and working with the mediator. Judges are asked to mark on the basis that they are looking for the most effective deal makers who work together with the mediator and the other party, whilst remaining consistent with your confidential information. You have to showcase your ability to identify the key moments in the mediation in order to score the best points per category provided on the scoresheet. In my opinion, we as a team were rewarded with a special recognition, because we provided the jury with some memorable, sometimes hilarious, moments under each of the topics on the scoresheet. However, similar to a judicial procedure, if you like it or not, you need to adhere fully to the rules of the game in order to master your competition. 

What our team, coming from a system without these kind of competitions or preliminaries organized on the same basis as the ICC competition itself, learned by experience is to pay attention to all the elements provided on the scoresheet. It is fair to say that we did not embrace this point to the full extent as we would have done after the reality check we experienced in Paris. 

Third element is straightforward and evidently true: come prepared. My team of the KULeuven was composed of members of LCM Student Association (Leuven Center of Collaborative Management). LCM SA is an interdisciplinary student organization focusing on mediation and negotiation, affiliated with the faculties of Psychology and Law at University of Leuven. We live by the principle that in order to become a good mediator, theoretical knowledge does not suffice; decent mediation skills require practice, like we do on a regular basis during the academic year. We believe that it is key to prepare yourself thoroughly before sitting at the mediation table. 

As a team we prepared ourselves by …
The most vital aspect we did as a team in collaboration with our coach was to practice in the weeks before the upcoming competition working our self through different scenario’s with practice cases at hand. Practicing the sample problems over and over to master your mediation skills, creating a realistic, competition-like condition, gives you the confidence to step in the mediation room, feeling prepared. 

We also paid attention to the fact that none of our team members were native speakers. Especially for the non-native English speakers, thinking about the best wording in English does not come naturally. In order to avoid being intimidated by the other team, which might speak English as their native language, it is essential to take the time to express yourself clearly. This will make all the difference when you sit down at the table. 

However, this does not mean that you have to adhere strict, formal phrases and a strict worked out plan. Students who prepare in a formulaic way, lack the flexibility to deploy the right set of tools at the right moment. You should come prepared with a broad repertoire of possibilities to adjust quickly to what the team or party at the other side of the table comes up with. It is vital to find a balance to what you have been preparing and what is developing at the table to guarantee a good outcome. 

Fourthly and most importantly, mediation is also a valid source of resolving cross-cultural difference but also a pitfall. In a globalized world, where ever more cultures interact with each other, I learned that this cross-cultural aspect of mediation is quite important. 

It should become a second nature to find out what the sensibilities are at the other side of the table through asking the right questions. If you don’t get these differences out of the way first or at least on the table, you will not be able to address the real issue at hand. A recent study of the Program on Negotiation at Harvard Law School, titled ‘Mediation and Culture: The Example of the ICC International Commercial Mediation Competition’ also underlined the relevance of cross-cultural mediation practice and how to better conceptualize the field of cross-cultural mediation in terms of a systems approach.[1]

Moreover and in general as a fifth ‘lessons to be learned’, it is important to keep an open mind during the mediation session. Try not to adhere to preconceived ideas about the other party and try to challenge your assumptions. As one of the jury members noticed during the feedback afterwards: ‘assumptions are the biggest mess-ups’. Ideas and judgments may change if you approach them from a different angle. 

Mediation at University

Perhaps, the overall impression the other team members and I distilled from participating in the ICC Mediation Competition is that to maximize student interest and knowledge about mediation, an though-out ADR program needs to be embedded in the university’s curriculum. Such a program, embedded in the university’s curriculum, would spark more awareness about the importance of mediation in resolving disputes. Some universities (mainly Anglophone institutions) embraced already the idea that besides the strict law courses, there should also be a focus on ADR. Students, who have the opportunity to follow these courses while at university, see the competition as a natural extension to their study and come to the competition with a quite evolved understanding of principles and practices. 

Training students in the techniques of mediation and ADR does not only mean training in order to deliver the best performance in the ICC competition, it is also vital to give students these valuable skills for their professional and personal life. 

Finally, what about the competition result? With the unwavering commitment and team spirit of the LCM Student Association, we were able to arrive fully prepared in Paris. Being thoroughly prepared as we were, it felt very much rewarding to win a prize for best cross-cultural mediation session. 

[1] Nederlands-Vlaams tijdschrift voor Mediation en conflictmanagement 2018 (22) 1 doi: 10.5553/TMD/138638782018022001006