Mediation and Mediation-style Counseling
What is Mediation?
Balance: Mediation brings balance to relationships where, at first glance, there no longer seems to be a balanced solution.
Mediation is a confidential process in which the parties to a conflict settle their dispute independently and voluntarily with the help of a neutral, and impartial third party bound by confidentiality—the mediator.
Mediation is an alternative to dispute resolution in court or arbitration. Mediation can also be used to resolve conflicts that stand in the way of success within the company or the relationship between business partners.
The mediator leads the process, moderates the discussions, and ensures a structured process. They promote communication between the parties in a protected and strictly confidential discussion framework. However, a mediator does not make any substantive decisions on the matter itself, as the solution is worked out by the parties under the professional guidance of the mediator. A solution that one of the parties does not want is therefore impossible.
Dr. Claudio Arturo Business Mediator and Attorney
Claudio Arturo is a partner at PFKA, attorney, and business mediator in Vienna. He is a civil-law mediator registered with the Austrian Federal Ministry of Justice. Claudio learned what mediation is in 1997 in Berkeley (USA) and was immediately enthusiastic about the method. He has been a trained mediator since 2002 and regularly works as a business mediator.
For Claudio, mediation is the sustainable dispute resolution method because it uses the relationship “resource” without depleting it.
Typical issues for which Claudio Arturo is tasked to act as mediator:
- Company succession
- Conflicts between competitors
- Shareholder conflicts
- Disputes arising from long-term contractual relationships.
Claudio Arturo is often mandated to provide mediation support for issues where there are no open conflicts, with a view to shaping a situation or corporate constellation such that future conflicts can be avoided—for example in the case of company succession, mergers, or among shareholders. This is in analogy to preventive medicine, where care is taken to ensure that people do not fall ill in the first place, rather than attempting a costly and risky recovery later on. The same principle also applies to (business) relationships.
Accreditations and Training in the Field of Mediation/ADR:
- Civil-law mediator registered with the Federal Ministry of Justice in accordance with the Austrian Civil Law Mediation Act, since 2004
- Training in business mediation at AVM, Lawyers’ Association for Mediation and Cooperative Negotiation 2001-2002
- ISBM, International School on Business Mediation, 2008 and 2012: Commercial mediation, family business
Publications, Lectures, and Teaching Activities in the Field of Meditation/ADR:
- Workshops for ELSA Vienna Dispute Resolution Academy and ELSA Vienna Summer Law School, 2017, 2018, and 2019
- Lecture for the Vienna Economic Chamber 04/2023: “Miracle cure mediation”—When is mediation indicated? Mediation as an efficient, quick, and cost-effective dispute resolution method
- Webinar for the Bolzano Chamber of Commerce 11/2023: Mediation—criteria for conflict evaluation / motivation for qualified participation
Membership and Functions in Mediation and Arbitration Institutions
- VIAC – Member of the Mediation Advisory Board
- UIA Mediation Commission – former Vice President
- UIA Arbitration Commission
- ArbAut, Austrian Association for Arbitration
- AVM, Lawyers’ Association for Mediation and Cooperative Negotiation
Where Is Mediation Particularly Suitable?
Due to its characteristics, mediation is particularly suitable for the following conflict scenarios:
Within a company or group of companies
- Conflicts between shareholders
- Pre- and post-M&A conflicts
- Conflicts in connection with restructuring or reorganization
- Conflicts between employees
- Conflicts between employees and managers
Between companies or between companies and third parties
- Conflicts along the supply chain (raw material supplier, producer, wholesaler, customers)
- Conflicts between competitors
- Inheritance conflicts, in particular with companies or business shares in the estate
- Company succession or business transfer within the family to the next generation or an external party
- Product development e.g. technology projects are “out of time/budget”
- Building and planning conflicts.
What Are the Advantages and Characteristics of Mediation?
Here you will find more information about the mediation process and its advantages and differences compared to other methods of dispute resolution.
1. Accountable solution: The parties themselves, rather than a third party, make the decision: An accountable consensus is the result. If a decision is made by a court or arbitration tribunal, the parties must ultimately comply with the judgment. Even a court settlement is, in qualitative terms, very different from a mediated solution, as it is usually based on a mere convergence of positions and there is often judicial pressure to reach a settlement in order to resolve the dispute quickly. This hardly eliminates the underlying problems. A settlement is often a liability for both sides, whereas a mediation result is often an asset for all parties involved.
2. Interest-based solution: The true interests and needs of the parties, which often underly the positions expressed, can be taken into account in mediation. In court proceedings, on the other hand, positions are merely put forward and the differences are emphasized, rather than minimized, in order to enforce one’s own rights.
3. Short duration: Mediation is characterized by a short duration of proceedings compared to judicial and arbitration proceedings. A solution can often be reached within a single session, or within a few weeks in the case of more difficult issues.
4. Low costs: The parties generally have relatively low costs. Since litigation costs such as court fees, expert witness fees, and lawyers’ fees are usually determined by the amount in dispute and the duration of proceedings, the costs can be extremely high, especially in the case of protracted litigation. For the losing party, the result is also undesirable. Mediation, on the other hand, offers a cost-effective opportunity for an independent solution to the conflict that benefits all parties involved.
5. Voluntary in nature: Mediation is voluntary. Each party can terminate the mediation process if they no longer wish to continue.
6. All doors remain open: If mediation does not bring about a solution or one party does not want to continue, court litigation is still an option. The parties have only invested a few days, incurred manageable costs, and expended a little energy, but have not relinquished any rights. If, on the other hand, a court case is launched immediately, the positions usually become entrenched quickly and a subsequent consensus-based solution becomes much more difficult.
7. No scorched earth: If an agreement is reached through mediation, future cooperation between the parties remains possible, whereas in litigation the basis for future constructive cooperation is usually eroded and ultimately lost.
8. Confidentiality: Mediation is a confidential process, whereas court proceedings are public. Mediation can prevent the conflict from becoming public knowledge, while at the same time averting potential damage to the parties’ image.
9. No time-consuming establishment of facts: Since mediation focuses on the future and not on the past, there is no need to assign guilt. There is therefore no need to establish facts as in court proceedings when evidence is taken. On the one hand, this saves costs, as no expensive expert reports have to be drawn up, and on the other hand it saves a lot of internal resources and hence time and energy.
10. Focus on the future: The solution reached is usually an agreement for the future, whereas in court-based conflict resolution, decisions are made about what has already happened. The agreement reached through mediation is intended to ensure a viable future relationship between the parties