Symposium ‘Brexit and Current Trends in Mediation’

On 23 January 2017 St. Hughes College at the University of Oxford hosted a symposium Brexit and Current Trends in Mediation. The world renowned experts in the field provided their insights as panellists, namely: from Oxford University, Prof. Horst Eidenmueller and Dr. Andreas Hacke, and, representatives of JAMS International, Jay Welsh and Matthew Rushton. The session began with each panellist describing major recent developments of mediation in, respectively, the US, England and Germany.

Current Trends in Mediation in US, UK and Germany

Jay Welsh, General Counsel of JAMS International, presented the American perspective on the matter, highlighting rapid proliferation of mediation across the US throughout the last 20 years. As he predicts, the new trend in mediation in the US will be the adoption of the formula according to which mediation will consist exclusively of private sessions with a mediator without the parties meeting at any stage, except for the final signing of the settlement agreement. Matthew Rushton, Deputy Managing Director of JAMS International, initially a legal journalist, who moved into the field of ADR in 2007, shared with us much less enthusiasm regarding recent developments in the mediation landscape in the United Kingdom, where it appears to be much less demand for mediation than in the US.

What does the situation look in Germany? Prof. Horst Eidenmüller (Lecturer at Oxford University, experienced arbitrator and mediator) as well as Dr. Andreas Hacke (partner at Zwanzig, Hacke, Meilke & Partners) agreed on that despite the large-scale support of the European Union in the area of mediation, Germany needs much more time for mentality shift which would allow fuller implementation of mediation schemes. As noted by Dr. Andreas Hacke, the most obvious obstacle to mediation are the lawyers who are afraid of entering the mediation world where their legal education has very little application. A primary step to change that mindset is to educate the lawyers by providing the necessary mediation toolkit.

Can Brexit be mediated?

Second part of the discussion was centred around the provocative question - could mediation be used as a tool in negotiating the exit of the UK from the EU? All panellists jointly agreed that, in theory, mediation would offer an effective platform to discuss complex matters of the new status of the relationship between the UK and the EU. It has been however suggested that resorting to mediation is not a very likely solution since that would require very thoughtful approach on the part of the political leaders who, so far, proved to be rather unwilling to adopt such innovative dispute resolution techniques in solving similar problems in the past. One of the concerns discussed at the symposium was the problematic status of a mediator on this state-to-state level, his/her legitimacy, and preferred mediation style required by the context.