An Austrian and a French Student Mediator Sharing Their Experience from 2015 – Nataliya and Stephanie
As the Consensual Dispute Resolution Competition (CDRC) will take place in Vienna for the second time, we – Nataliya Barysheva and Stephanie Rohmann, both competing mediators at the very first competition in Vienna last year – decided to share our experience and some important tips and tricks for the “2016 CDRC generation of mediators”. We aim to give some informative answers to important questions one may have during the preparation for the upcoming competition, keeping in mind the motto that “four eyes see more than two”.
Q: How did you feel about being the mediator in this competition?
Stephanie: As a mediator you are the only person you can count on since you don’t have a colleague who will jump in if you lose your focus. First, I thought that this will be quite challenging but to the contrary as it proved to be very useful: As a mediator you are in charge of structuring the whole negotiation as well as of paying attention to the pace of the discussion and to the “emotional development” of the parties. Personally, I found it really tough to fully concentrate in every second of the discussion and to actively listen to every little detail the parties were saying, since in the end it was the small information that truly counted. You have to distinguish between information being said and information being meant. However, there you can demonstrate your skills as a mediator, ask clarifying questions and call for a caucus. Furthermore, you have to keep in mind that before each session and every negotiation, every team gets a different confidential information with different aims. And since you only have limited time for your session, it can be quite tough to analyse what the parties are really aiming for. Moreover, you have to be culturally sensitive, since there will be teams from all around the world with different cultural backgrounds. You have to be flexible and adjust yourself to different personal negotiation styles, which also adds a nice psychological touch to your character as a mediator. All in all, I really enjoyed being the mediator as I learned how to steer a conversation into a mutually agreed upon solution. And it becomes truly rewarding when the negotiators, between whom you mediated, tell you that you managed to create a productive and easy going session where they felt at ease in sharing information.
Nataliya: In some other negotiation and mediation competitions students are often competing only as mediators or only as negotiators, but not as both. In such situations, one can experience a certain gap between young competitors and skilled professionals. In Vienna, students are competing as both, mediators and negotiating parties (counsel and client). The task of the mediator in the competition, contrary to the negotiating parties who compete against each other, is to be able to find a way to reconcile: first, in a role of a facilitator of the process, helping parties to understand each other in an effective way and reach an agreement, and second, to master the facts of the competition. And although in the end being a mediator is really rewarding, it can also be considered as a real challenge. For example, when the parties’ counsel are doing a really good job by coming up with solutions and offers, it is difficult for the mediator to get involved in the conversation. In real life, an experienced mediator would leave the action to the parties, however, in the context of the competition, you need to find the right balance between active and passive interventions. Conversely, if negotiation teams are in trouble of understanding or listening to each other, it is your task to help them overcome deadlocks. Finding the right balance for your mediation is the key to a successful mediation.
Q: What should you do in a session when something unexpected happens?
Stephanie: As every human being has his or her own style of negotiation, you will most likely experience a situation which is totally new for you. But that’s simply the beauty of mediation! You have to improvise and react accordingly to the parties’ behaviour, but never lose your cool. Try to be calm and ask the parties to explain to you – the mediator – their problem; the issues they are facing; their interests; and their needs without focusing too much on the other party, so that they are not tempted to confront the opposing party as they did before. All in all, I think facing difficult situations is the moment when the mediation gets really exciting and interesting!
Nataliya: It is in difficult situations where people are most creative and where you can show your skills to the full extent as you can demonstrate how you, as a mediator, can be helpful to the parties, and how you can facilitate the process in a real way. You need to be prepared for unexpected situations and anticipate how you can better deal with different people and / or situations. Nevertheless, you cannot predict everything, so at some point you need to be prepared to improvise.
Q: How well does a mediator need to know the case?
Stephanie: Even though you don’t have to argue the case, of course, you really need to know the whole problem. You can show the judges that you really understand the case by asking productive and clarifying questions, and thereby, score points.
Nataliya: Knowing the case – even if it is not your case – is obviously important. As in real life, you get the information in advance for the sole purpose of making yourself familiar with the problem and not questioning the parties during the mediation session about well-known facts. It will also keep you at ease while asking the parties to clarify some points, if any, or resume to their needs and interests. Also, knowing the facts will allow you to understand which information is crucial to each party, and to find a quick and efficient way to overcome possible deadlocks.
Q: What are your three major tips for the future competing mediators?
Stephanie: First, even though there are different types of mediation sessions (more inactive mediator letting the parties handle their dispute themselves, or an extremely active mediator coming up with solutions for the parties), you need to keep in mind that it is a competition and not a real-life mediation. Therefore, you rather need to be an active mediator as you only score points by showing your skills. It maybe that due to this ‘competition factor’ a session could be even more active than a real mediation session, nonetheless, be true to yourself. Second, I would recommend the use of a flipchart as this really helps to bring the focus onto the issues to work on, and whenever you realize that the dispute is drifting off, you can always point at the flipchart and make the parties aware of what the core issues are and what needs to be discussed. And lastly, timekeeping is everything!
Nataliya: First, you need to learn to adapt to the parties’ negotiation styles. Since you will be mediating different teams, the outcome of each mediation session will be different. It is difficult to imagine that you would be able to “transfer” your first mediation session to the second. Obviously, the first session will have an important impact on how you will act in the second one, but if something, like one of your strategies, does not work out in your first session, remember that it could be “reused” perfectly in the second session. Then, listen carefully! This is one of the most (if not the only) important quality of a good mediator. Every word and gesture has a meaning to it. You need to be fully concentrated during the whole session. Finally, be the master of the process! It is true that mediation is about the negotiating parties, but they chose you as their mediator to help them. And the only way to do this is to guide the parties through the whole process.
Q: What is the most important thing you learned while being a meditator in the competition?
Stephanie: People never ask others why they act or think the way they do. Rather, they directly confront or even attack them, sticking to their position and trying to force their opinion upon others. Being a mediator, I have finally recognised the true value of the word “why” – which became the magic word for every future negotiation. Furthermore, you do not have to come to a solution at the end of your session or urge the parties to find one. You have to keep in mind that the journey is your reward and that’s what you get your points for.
Nataliya: In my perspective, the experience you get in just a few days, in a difficult role as a mediator, is really worth it. Overall, it is an amazing opportunity for the teams to learn during the whole competition, not only during the sessions but even otherwise, it gives them the prospect of developing their skills as future mediators. For me, the best part in this competition was the feeling when someone says to you that your session was a real mediation and not a competition. Good luck to all competing teams from all over the world!
Nataliya is an Associate in Litigation and Arbitration at Castaldi Partners law firm in Paris. She holds a Masters in International Law from Sorbonne University and has previously worked as a Legal Knowledge Manager at LexisNexis for five years. Native Russian, Nataliya is also fluent in French, English, Italian and has a good working knowledge of Spanish. She participated in the 10th ICC International Commercial Mediation Competition as a Paris Bar School team member and also competed as a mediator in the 1st edition of the CDRC Vienna IBA-VIAC Mediation & Negotiation Competition in 2015 with the Paris Bar School team. In 2016, Nataliya was a coach of the Paris Bar School team in the 11th ICC International Commercial Mediation Competition. She is a member of Young Global Ambassador Programme (YGAP).
Stephanie is a law and art history student at the University of Vienna where she specializes in civil litigation, arbitration and mediation. From August till December 2016 she will attend the University of California, Los Angeles (UCLA) as a semester abroad. Stephanie participated in the Willem C. Vis International Commercial Arbitration Moot Court Competition in 2016 and as a mediator in the IBA-VIAC negotiation and mediation competition in 2015, where she won both special awards for a mediator. Additionally, she took part at the ELSA Summer Law School on Arbitration in Geneva and organized the ELSA Vienna Summer Law School on Dispute Resolution in Vienna. Currently, she is enrolled at the “Global Advancement Program” provided by the Academic Forum of Foreign Affairs, where participants discuss current international topics with high-level diplomats, government and business representatives.
published May 31, 2016