Interview by Adam Sebesta
With over 40 years of professional experience, Europe’s leading mediator and senior lawyer argues that it’s more effective to mediate than to litigate. Helena De Backer admits she is a fan of mandatory mediation, adding that mediation ‘makes parties happy when reaching agreement’. However, she stresses more work has to be done in order to change the reserved attitude of lawyers and judges towards mediation.
Why have you decided to study law? I noticed you also studied economics and taxes.
I debated between economics and law, but I ended up studying law first. However, during my law studies, I met many engineers who said that law was ‘too easy’, so I decided to study economics, as well. I have always enjoyed studying (smile).
Why did you choose to study taxes, as well?
At the time, I was already a member of the bar and worked with commercial law. I felt I needed to know more about taxes. And, as I mentioned earlier, I enjoy learning. So, I took evening courses – every day from 6 to 10 pm. After obtaining two degrees, I simply felt I would be able to get more from my studies than ever before. You can imagine that what I heard from my professors made much more sense to me when I studied taxes than when I was 17 and studying law.
With all those degrees you could have easily become a manager or a consultant. Why have you chosen the legal path?
To be honest, it happened accidentally (smile). When I studied economics, I had a good friend who was a member of the bar. He put me in touch with a lawyer who was willing to hire me as his legal trainee. He said becoming a member of the bar and also studying economics would be good for my resume. When I finished studying economics, I had a chance to work for a multinational corporation, but I decided to remain in the field of advocacy, which enabled me to have more clients and work in a variety of fields.
You have worked mostly with business law, but also IP and IT law.
I have many friends in the field of IT, which enabled me to do a lot of IT law work. I also did M&A and international contracts. With contracts, you have to be creative and be able to build projects with the clients, which I liked a lot.
You are recognized for being one of the best mediators in Europe. When was the first time you heard about mediation?
In 1999, but again, it was by accident (smile). Most of the good things in my life actually happened accidentally. There are many opportunities out there, and you just have to see them. I was a member of the council of the bar, and the Brussels Chamber of Commerce had contacted the bar to launch a mediation center in Belgium. I was asked to help them out, so I undertook mediation training. And, you know, once you get involved in mediation, you cannot let it go.
What was your first case as a mediator like?
It was a very easy one. I was appointed to mediate a dispute between two lawyers within one company. Shortly before the mediation, I saw the two talking to each other. Obviously, they had a good talk because they reached an agreement very quickly (smile). Later on, I had some fantastic cases. Many of them served as good examples for roleplays, which I use in mediation trainings today.
What was your most challenging case?
The most challenging cases are not necessarily the most complicated cases from a legal point of view but are actually the cases involving heavy emotions or deep relationships. For instance, cases relating to disputes between shareholders who were good friends, lovers, or husband and wife. These take more time than mere commercial cases.
Mediation is still largely unknown within society. How would you describe the word ‘mediation’ in one sentence for the lay public?
Mediation is a procedure in which a professional helps parties in dispute to communicate better and find a solution to their dispute.
“I really think every lawyer should go through a big personal dispute in order to realize how it could ruin one’s life.”
Isn’t there a problem with the word ‘mediation’ itself?
People don’t understand what it really means because it’s now being used for too many different things, such as ombudsman, etc. The majority of people often think that mediation is only applicable to family disputes. Some do not understand the difference between arbitration and mediation…
How could awareness of mediation be raised?
There are many ways to go about raising the awareness of mediation. For example, we provide training to judges. Of course, most of them know what mediation is, but they have to know how to use it and when to propose it. They need to know how to select cases for mediation.
It’s interesting that you mentioned the training of judges in the first place. What about lawyers?
It’s definitely not only about the judges. Lawyers and in-house lawyers have to be included in the training, as well. They also need to have an understanding of mediation. If you can’t persuade lawyers to recommend their clients to mediate, then most of the time you can’t mediate at all. The mediation center we have created (editor’s note: bMediation) tries to work systematically with all stakeholders involved in mediation, including large corporations, as well as SMEs.
What is your attitude towards them?
I don’t think the best way to start is to explain what mediation is. On the contrary, I think it’s better to ask parties what the consequences of the dispute are to them, to the companies, and to the different stakeholders of the companies.
In Slovakia, mediation is rarely used. Out of 80,000 civil law disputes in 2013, the courts referred almost 7,000 cases to mediation. However, only 64 ended up being solved in mediation.
That’s not enough. I suppose in many of those cases the mediation had not even begun yet. The hardest thing is to start mediation. Once you get the people to mediate, they will come to the meeting with a mindset to settle. They know their BATNA (editor’s note: Best Alternative to a Negotiated Agreement) and WATNA (editor’s note: Worst Alternative to a Negotiated Agreement).
Due to the implementation of EU legislation, the Act on Mediation has been amended in Slovakia. The amendment makes some provisions of this act stricter (e.g. mediators shall have a registered office). Do you think that such a strategy will enhance mediation as a profession?
You need good professionals as mediators. In the beginning of mediation in Belgium, we also did not have many requirements for mediators. However, mediators need to have proper training. You need some standards, rules of conduct, and accreditation. As a mediator, you also have to continue with your education, otherwise you will lose your skills.
What are the main benefits of mediation compared to litigation?
The main benefit is that you come to a solution in a very short period of time, and it is a solution that makes satisfies the parties. On the other hand, litigation imposes a lot of costs – the client pays for both the lawyers and for the bad relationship with his or her former or current business partner. I really think every lawyer should go through a big personal dispute in order to realize how it could ruin one’s life. Unfortunately, some lawyers do not realize the negative impact of litigation on their clients’ businesses.
So the consequences of litigation on business activities should be observed in the first place.
One has to bear in mind what the dispute does to the company, what the consequences are to its customers, suppliers, etc. I think these are more important issues than the fees paid to lawyers. Even if you do not need to maintain the relationship with the party in dispute, you should bear in mind that we live in a globalized world, and everybody will find out about your behavior, one way or another. In mediation, you also have the whole procedure in your hands.
In Slovakia, a litigation of a business dispute took 14 months on average in 2013. What is more, in Slovakia’s capital, Bratislava, the proceedings lasted 32 months on average. How long does it usually take to mediate a business case dispute in Belgium?
You need some time to organize the parties to mediate, which takes the majority of time. I prefer to have a separate meeting with each party and their lawyers before mediation starts in order to organize the agenda. If it is a transnational mediation, I prefer to ask the parties to reserve two days for the process, but, usually, we reach an agreement in one day. If it is a local dispute, I ask them to block two half-days. And after the first-half day, I ask them to block a third one just in case. The whole process usually takes half a month. But it may take less time if it is urgent.
What about the agreement then? Do you have to go to the notary in order to make it enforceable?
According to Belgian law, an agreement reached through mediation with an accredited mediator shall be signed by the mediator and the parties. If you wish to make it enforceable, you can have it enacted by court as a court’s decision.
But that requires additional time and costs.
Yes, but most people don’t really need it, except for family disputes where monthly alimonies are included. But, in most cases the parties are satisfied with the agreement as such and don’t require making it enforceable. They respect the agreement. Of course, if you want to have the agreement enforced, you can go to court, which may take another month, but the costs are trivial. Or, you can go to a notary public and transfer it to a notarial deed, but that is costly.
This process is very different from the process in Slovakia. We tend to be very formal and strict about any agreements.
You have the possibility to make the agreement enforceable, but most of the time the parties just feel that there is no need to do so. Mediation is a fascinating procedure, and it’s amazing to see the happiness of people once they settle.
In the past we have seen that adequate legislature is the key to broadening the use of mediation. For example, in the UK, mediation has been on a continuous rise since its reform in the justice system – the so called ‘Woolf Reform’. What are the specific legal tools that could boost mediation?
One of the ideas in Belgium was to impose mandatory attendance of mediation in cases where legal aid was provided. There was also an idea to give the judges the possibility of condemning a party to the costs of the procedure if that party had refused to try mediation before going to court, even if the party had won the case. However, many judges didn’t want the latter because it could lead to another dispute, and I can understand their point. But regardless of that, I am in favor of mandatory mediation.
Do have any specific disputes in mind where mandatory mediation could be applied?
Of course, you can’t make mediation mandatory for all disputes, but for some disputes it would be helpful. For instance, in family disputes, or all the construction disputes… I would say in every dispute where a party asks for an expert, the mediation should be mandatory. Also, disputes between a company’s shareholders, which may very negatively affect the company, should be settled by mediation.
On the other hand, mediation is generally defined as a voluntary procedure.
Even if mediation were mandatory, any party would be able to stop the mediation at any time. Therefore, it remains a voluntary procedure. I believe that mediation is always at least worth a try. Mediation doesn’t take much time, and you also control the costs, as you can seize the process at any time. Additionally, if you look at the statistics, they say that 75% of mediations actually lead to settlement. The investment is very small compared to the potential benefit from the outcome.
I know there are many people who complain that arbitration, but also mediation, may be more expensive than litigation.
Of course, if mediation fails, you have additional costs, but you have to conduct a risk analysis. What are the chances of reaching an agreement? Of course, it’s a risk investment, but you have a prior evaluation. However, it’s true that arbitration takes more time and is costlier than mediation. In arbitration, you cannot stop the procedure when you want to.
Arbitration is another alternative to courts used even more widely than mediation.
Parties ask the arbitrators to make a decision and parties are bound by that decision just as they are by a court decision. Mediation is a procedure that parties can try before a court procedure or an arbitration procedure. The third party, the mediator, will not make any decision but is simply there to help the parties reach an agreement by themselves. Therefore, the parties control the outcome. They control the costs, and they can stop the mediation whenever they want.
What would be your advice to people interested in becoming mediators?
You need to have proper training. Once you become a mediator, advise people to use mediation. I know many mediators who are just silent about this. If all the trained mediators encouraged people to use mediation, there would be many more mediations.
Isn’t mediation a proof of evolution of humanity?
Indeed, it is a step forward. Lawyers have to admit that they often behave as warriors who have to win their case in litigation. What I think they have to realize is that victory isn’t only achieved through the court. Victory could also be achieved by helping one party reach a settlement with the other party in mediation. That would be a win-win outcome. Lawyers should realize that you win the case by helping your client to settle.
This idea seems to stand in contrast to the general nature of lawyers who are trained to fight in courts.
Especially the young lawyers are not transformed by the profession yet. When you are an older lawyer, you are a warrior because you had to fight your whole life. All in all, the mediator has to take the needs of lawyers into account, as well.
What does the daily routine of Helena De Backer look like?
I am sorry, but I am afraid that I don’t have any routine at all (smile).
So what does your day look like?
I am not an early bird. So, I take my time in the morning, never setting the alarm the night before. Additionally, I never have meetings before 10 am. However, I rarely leave the office before 9 pm. Very often it’s 10 or 11 pm before I make my way home. The only exceptions are the days when I have language lessons.
So when do you rest? On the weekends?
No, not really. I mostly work or learn languages during weekends. So, I tend to relax during the holidays. I know I should rest more. I try to play sports as well. I used to play tennis, but these days I sail, swim, and read newspapers at night.
Helena De Backer
Helena De Backer earned several academic degrees (law, economics and taxes). Apart from being a lawyer, Helena has been active in the field of arbitration and mediation for nearly 40 years as arbitrator and mediator. Helena co-founded bMediation of which she is currently director. Helena is fluent in Dutch, English, French, and Portuguese. She is learning modern Greek and Arabic. Being a trainer in mediation worldwide, Helena is considered to be one of the Europe’s most experienced and leading mediators.
Adam holds a law degree from the Paneuropean University, Law Faculty. His former professional experience includes the fields of corporate law, diplomacy, journalism, and project management. Adam is currently attending the Erasmus for Young Entrepreneurs program in a Brussels-based law firm, where he focuses on broadening the use of mediation by attorneys. He is the winner of “Best Mediator” award in the International ADR Mooting Competition, organized by the School of Law of City University of Hong Kong (2013). Adam became a certified mediator in Slovakia in 2015.
The interview originally appeared in najpravo.sk on January 12, 2015 (in Slovak language), on the following link