L AW FLIGHT DECK

DEALING
DIFFERENTLY
WITH DISPUTES
By launching Mediation 4 Aviation (M4A) business aviation lawyers and accredited
mediators Giulia Mauri and Frederique Jos wish to offer an Alternative Dispute Resolution
(ADR) mechanism tailor-made to fit the business aviation industry.
B Y S Y LV I E P E R O N
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The business aviation industry
is international and cross-
T border by nature and yet it is
a tight knit community where
stakeholders are most of the time
engaged in long-term commercial
relationships.
Like in any other industry it is not uncommon for
disputes to arise but given the close proximity among
the players and the high-value assets involved there
is a strong need for a dispute resolution mechanism
that could prevent the disagreement from becoming
so adversarial that the parties can no longer work
together. As such, the traditional routes to resolving
quarrels through litigation may not necessarily be
the most advantageous.
You refer to mediation as one of the ADR
mechanisms. What is ADR?
Alternative dispute resolutions (ADR) are procedures
for settling disputes outside the courtroom (such as
arbitration, mediation, or collaborative negotiation).
Today, the two main systems considered as the
most relevant alternative dispute resolution (ADR)
mechanisms are mediation and arbitration. They
are increasingly being utilised in disputes as an
alternative to court litigation.
So what is the difference between mediation
and arbitration?
Arbitration and mediation are often referred to
together when people talk about ADR systems
since they are both alternatives to traditional
“Although, in theory, as mediator
you do not have to be an expert
in the matter you mediate, we
do believe that an in-depth
knowledge and experience of
the business aviation industry
is a true asset as the parties will
be able to talk to a mediator who
understands their industry.”
FREDERIQUE
ISSUE 83
court litigation and employ a neutral third party to
oversee the process.
Arbitration is similar to a court process: the
parties are given an opportunity to present their
case to a third party called the arbitrator. Appointed
by the parties, the arbitrator hears both parties’
arguments and then issues a final ‘judgment’ (the
arbitral decision).
During arbitration, there is usually little if any
out-of-court negotiation between parties. The
arbitrator has the power to render a legally binding
decision, which could then be enforced in case of
non-compliance by one of the parties.
In the mediation procedure, the role of this third-
party, called the mediator, is to listen to the parties’
arguments and points of view and to actively
facilitate (or try to reinstall) negotiations between
the disputing parties in order to help them find a
settlement of their own.
The mediator is a facilitator and an enabler, who
by using conflict resolution techniques helps the
parties in finding their own solution to the conflict
opposing them.
The mediator does not issue orders, but helps
parties to reach a settlement by assisting them in
their communications and in the elaboration of
possible solutions.
Where does mediation come from?
In family, community, environmental, international
diplomacy and workplace contexts, mediation has
a range of different and long-standing cultural
origins. Commercial mediation was developed first
in the USA, as part of a drive to find
alternatives to the drawbacks (delay
and expenses) of litigation.
Probably the most relevant turning
point in establishing an alternative to
positional bargaining and positional
negotiation (which is how parties
behave in litigation and arbitration)
was the publication in 1981 of ‘Getting
to Yes’ by Roger Fisher and William
Ury. They introduced the concept of
interests-based negotiation, which is
the building block of mediation.
The application of the negotiation
techniques developed by Fisher
and Ury in the context of dispute
resolutions has proven extremely
JOS successful and has contributed to the
37 A LT I T U D E S E U R O P E
L AW
development and expansion of mediation.
For many years now, the legislators in different
countries have recognised the advantages of
mediation and have introduced legal measures to
facilitate the use of mediation and its recognition.
Is mediation a recognised ADR mechanism
within Europe, like in the US?
In 2008, the European Union adopted an EU
Mediation Directive (Directive 2008/52/EC).
The legal framework introduced by this Directive
has contributed in the professionalisation of
mediation services. Various organisations in
different Member States of the European Union
now offer high level training aimed at teaching
future mediators conflict resolution techniques as
well as mediation methodology.
By doing so, the European Union has
acknowledged the importance that mediation may
have in disputes resolution. Each Member State is
encouraged to train mediators, thus ensuring a high
quality of mediation. It gives every judge the right
to invite the parties to a dispute to try mediation
first if she/he considers it appropriate given the
circumstances of the case.
All Member States of the European Union have
transposed the Directive into their national laws.
Could mediation be a suitable option to solve
business aviation related disputes?
Mediation proves to be particularly successful
in sectors of the industry where parties value
“In mediation con!dentiality
is of the essence, meaning any
comment, evidence or admission
made or given during a given
mediation procedure cannot be
used in any subsequent
litigation or arbitration.’
GIULIA
A LT I T U D E S E U R O P E
a high degree of confidentiality. In mediation
confidentiality is of the essence: this means any
comments, evidence or admissions made or given
during a given mediation procedure cannot be
used in any subsequent litigation or arbitration.
Moreover, unless the parties agree otherwise, the
final settlement agreement is fully confidential.
Additionally, mediation may take from a few
days or weeks to up to a maximum of six months.
In certain cases, it may even last just a few hours,
allowing for a more reasonable timetable for solving
disputes. It is also usually far less costly than a court
or arbitration proceeding. Mediation is therefore
quite attractive to the business aviation industry
where small and medium size companies operate.
SMEs do not have the same funds and resources
of large corporations to be able to launch long and
costly litigation procedures.
Mediation being a non-adversarial procedure,
its collaborative nature is of great importance in a
niche sector such as business aviation where it can
to help preserve continued relationships between
business partners.
Also, given the international nature of aviation,
most disputes between aviation stakeholders will
involve cross-border litigation, which is particularly
complex to handle as it involves different legal
systems and often the use of different languages and
procedural rules. Because mediation is not driven
by legal considerations, but by commercial ones,
parties may come to very creative solutions that fit
their businesses and their business relations, which
are rarely available in national laws, without having
to go through complex litigation in
different states.
Finally parties usually report a
higher degree of satisfaction with
mediation than with arbitration or
other court proceedings because in a
mediation they can control the final
result and they are the creators of the
final solution. The main consequence
of this satisfaction is a greater
compliance with the final settlement
they reach than with a court or arbitral
decisions imposed on the parties.
Why did you launch Mediation 4
MAURI Aviation?
In our practice, we have identified a
strong need of aviation stakeholders
38 ISSUE 83
FLIGHT DECK
to use mediation. We have also found
that there is a lack of experts (judges or
arbitrators or mediators) with a thorough
technical and commercial understanding
of the aviation industry, who are thus truly
qualified to examine issues leading to
dispute in this sector.
Mediation 4 Aviation, offers mediation
services for all kind of disputes related to
business aviation matters such as:
ı
The termination of a commercial
agreement and its consequences (catering,
service levels agreements, contracts with
suppliers, etc.)
ı
Maintenance agreements
ı
Aircraft sale and purchase agreements
ı
Agreements with airports 
ı
Airport charges
ı
Leasing and wet-leasing
ı
Charter agreements
ı
Fuel supply
ı
Brokerage agreements
ı
Infringement of copyrights or branding 
ı
Aviation related claim
ı

Investments and conflicts between
business partners and/or separation of
business partner
ı
Code share agreements
How would mediation be processed?
First of all, the disputing parties can decide
to go to mediation at any time before, during
or even after litigation. advisers enabling them to participate as fully and
Once one or both parties file a mediation effectively as possible while preserving neutrality
request, a mediator is selected and appointed and confidentiality.
by mutual agreement. Before the mediation can Throughout the mediation process the main
begin, a mediation agreement fixing the fees, venue focus remains on the differing parties as they
and principles governing the mediation (such as work towards a mutually beneficial solution and
confidentiality, etc.) will be concluded. they formalise the solution found by concluding a
The appointed mediator will generally start the settlement agreement.
procedure by meeting the parties and asking them In mediation both parties are ‘pilots in command’
to explain their respective point of view in relation of their dispute: at the beginning of the mediation
to the dispute opposing them. Then the mediator they take off from their point of departure (their
can prefer to lead the whole mediation via a joint claims) but the place of destination (where they will
meeting or may opt to meet each party separately in land the settlement agreement) will depend on the
successive private meetings so that the parties may guidance they will receive during their journey from
freely explain their views in relation to the dispute. the mediator.
The mediator discusses their claims with the As there is no limit to the creativity of the
parties, exploring with each party possible ways to parties, or the scope of the dispute, each mediation
resolve it. Throughout the mediation process the is unique. And so will be the final solution found
mediator acts as a coach to the parties and their with the expert help of the mediator.
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