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Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement x Jaar 2014 x
Casus

‘We’d better take a lawyer for that!’

On what companies expect of their external lawyers in conflict management

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2014
Auteurs Dr. Jo B. Aschenbrenner, LL.M.
Auteursinformatie

Dr. Jo B. Aschenbrenner, LL.M.
Dr. Jo B. Aschenbrenner, LL.M. is mediator and lawyer in Hamburg, vice director at the Bucerius Center on the Legal Profession (www.bucerius-clp.de) and Of Counsel at Hanefeld Rechtsanwälte (www.hanefeld-legal.com).

    ADR in Kenya is traceable to the pre-colonial era. Before colonial rule, African communities applied traditional justice systems in the resolution of disputes. Some of these traditional justice systems are what are formally called ADR. It is through the imposition of formal justice systems by the British that certain ADR mechanisms were recognised in Kenya. In recent times, ADR is one of the commonly used avenues in accessing justice in Kenya. ADR in Kenya is growing at an unprecedented rate courtesy of its recognition in law, inaccessibility of courts and tribunals, backlog of cases and increased commercial activities requiring the use of ADR processes. Consequently, there are efforts by government and the private sector aimed at promoting ADR in Kenya. These efforts suggest that the future of ADR in Kenya is promising. In this article, the authors discuss the growth, development and practice of ADR in Kenya highlighting some of the likely challenges and opportunities in its use.


Francis Kariuki
Francis Kariuki is a Lecturer at Strathmore University Law School.

Linet Muthoni
Linet Muthoni is the Executive Officer of the Strathmore Dispute Resolution Centre.

    Colombia has been a territory with some social and political difficulties which have affected several dynamics of the community as well as the legal security in almost all levels of the Colombian society. The alternative dispute resolution mechanisms arise as a response for all the gaps that such circumstances produce in the country and as useful tools to solve numerous disputes in different fields. The Chamber of Commerce of Bogotá, through its Arbitration and Conciliation Center founded in 1983, is making a permanent bet to support the Colombian citizens’ coexistence in the schools, in the neighbourhoods, in the companies that provide jobs as well as benefits to the city and to the whole country. Clever strategies have been developed through the years with three purposes: change the culture about the alternative dispute resolution methods, provide confidence in using them and change the way the people manage their conflicts.


Rafael Bernal Gutiérrez
Rafael Bernal Gutiérrez is director of the Arbitration and Conciliation Center of the Chamber of Commerce of Bogotá. His expertise in ADR counts more than 30 years. He has participated in the construction of legal frameworks for ADR in different countries all across Latin America. He is lecturer in ADR topics in Colombia and as well internationally.
Artikel

The Use of Mediation in Tax Disputes – UK Position

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2014
Trefwoorden mediation, Tax disputes, HMRC, international arena
Auteurs Peter Nias en Nigel Popplewell
SamenvattingAuteursinformatie

    The article looks at the background to the use of mediation as a tool for resolving tax disputes between the UK tax authorities (HMRC) and UK taxpayers. It explains HMRC's litigation and settlement strategy which comprises the broad structure within which HMRC must operate to resolve such disputes. It then looks at specific guidance published by HMRC dealing with ADR and mediation in particular. The operational elements of this guidance, and the authors practical experience of them are then described, as are their views, with the limitations of the process. Finally the authors look at the application of ADR in the international arena.


Peter Nias
Peter Nias is a barrister and CEDR accredited mediator. He is a member of Pump Court Tax Chambers in their ADR Unit, a member of CEDR’s Tax Panel of mediators and has collaborated with CEDR to create the Tax Disputes Resolution Hub. Until 2012 he was a partner and solicitor in the law firm of McDermott Will & Emery UK LLP, where he was head of the Tax Practice and its Tax Dispute Resolution Group. Since qualifying in 2010 as an CEDR Accredited Mediator, Peter has been focussing his time advising clients on mediation and premediation strategies for resolving tax disputes. He has been working with HMRC’s Dispute Resolution Unit in developing a collaborative dispute resolution (CDR) Programme for complementing their Litigation and Settlement Strategy.

Nigel Popplewell
Nigel Popplewell is a partner in law firm, Burges Salmon LLP. He is a Fellow of the Chartered Institute of Taxation, a CEDR Accredited Mediator, and deals with all aspects of UK tax, and disputes with UK tax authorities.
Artikel

Consumer Dispute Resolution (CDR) in Europe

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2014
Trefwoorden Consumer Dispute Resolution, CDR, national cultures, CDR-models
Auteurs Naomi Creutzfeldt en Christopher Hodges
SamenvattingAuteursinformatie

    This paper is a combination of the ‘Oxford study 2012’ (C. Hodges, I. Benöhr & N. Creutzfeldt-Banda, Consumer ADR in Europe, Oxford: Hart Publishing 2012) and subsequent publications about consumer dispute resolution in Europe. Recent EU legislation aims to establish a EU-wide framework for consumer alternative dispute resolution (CADR or CDR) schemes and a platform for online dispute resolution (ODR). This forces member states to revisit their existing CDR models and in some cases, to modernize their structures. Many member states face challenges of reform of existing systems by the directives implementation date of 2015. This paper will provide an overview of CDR, the development of current legislation and discuss some national examples. The paper concludes with comments about implementation of the directive and potential future direction.


Naomi Creutzfeldt
Naomi Creutzfeldt is ESRC Research Fellow at the Center for Socio-Legal Studies, University of Oxford.

Christopher Hodges
Christopher Hodges is Head of the CMS/Swiss Re Research Programme on Civil Justice Systems, Centre for Socio-Legal Studies, University of Oxford; Erasmus Professor of the Fundamentals of Private Law, Erasmus University, Rotterdam; Honorary Professor of the China University of Political Science and Law, Beijing; Guest Professor of Wuhan University, Wuhan; Life Member of Wolfson College, Oxford; Solicitor of the Senior Courts of England & Wales. Research funding is received from the international law firm CMS, the European Justice Forum and Swiss Reinsurance Company Limited.
Artikel

Dispute Management as a Means of Value Based Corporate Governance

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2014
Trefwoorden Viadrina Component Model, CMRM model, Conflict Spider, Dispute Management
Auteurs Cornelia Schmidt en Michael Hammes
SamenvattingAuteursinformatie

    Disputes are part of a company’s daily business reality, involving a broad range of internal and external stakeholders. As disputes may have significant consequences in terms of costs and damages, it is crucial that disputes are managed in a ‘wise’ manner. In this context, PwC and the Institute of Conflict Management at the European University Viadrina Frankfurt (Oder) initiated a broader ten years research project. The fourth and most recent survey was published in October 2013 and examines the question of how dispute management can be established as a means of value based corporate governance. The survey describes how disputes can be successfully managed by employing a professional framework and associated tools.


Cornelia Schmidt
Cornelia Schmidt is a Consultant in PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany. Cornelia advises clients on fraud and dispute related issues. She has been extensively involved in the recent survey.

Michael Hammes
Michael Hammes is a Director of PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany. Michael has extensive experience in dispute resolution. He frequently acts as a party-appointed or tribunal appointed expert in arbitration or court proceedings or as an expert arbitrator.

    Giuseppe De Palo and Romina Canessa give a description of the recent publication of a study conducted for the European Parliament on Mediation, ‘Rebooting the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU’, has contributed to the ongoing debate about effective mediation policy. The Study concluded that despite an increase in mediation awareness and the proven benefits it can have, mediation still remains largely unused as a method of dispute resolution.


Giuseppe De Palo
Giuseppe De Palo is a mediator and President of ADR Center in Rome. He is also Professor of ADR Law & Practice at Hamline University School of Law in St. Paul, Minn. He has written extensively about ADR and, in January 2014, presented to the Legal Affairs Committee of the European Parliament the research study ‘Rebooting the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU’, of which he was the coordinator.

Romina Canessa
Romina Canessa is a co-author of ‘Rebooting the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU’. She holds a Juris Doctor Degree in Law from Benjamin N. Cardozo School of Law and Bachelor of Science Degree in International Politics from the Walsh School of Foreign Service at Georgetown University.
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