Sunday, September 15, 2019

Brazil Moot

By Brayden Koslowsky ‘19

 

Four students mediating at a table

For the second year in a row, this past spring a team of Harvard Law School students— comprised of Brayden Koslowsky and Devony Schmidt ‘19, Caitlin Hoeberlein 20, and Peter Daniels ‘21—won recognition as the best negotiating team at the CPR International Mediation Competition. Organized by the International Institute for Conflict Prevention & Resolution (CPR) and hosted by the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) in its São Paulo, Brazil, offices, the Competition is the only mediation moot hosted in Latin America. The Competition is a true exercise in cross-cultural alternative dispute resolution, and brought together eighteen law schools from Brazil, India, Kenya, Trinidad & Tobago, and the United States.

As a mediation moot, the structure of the Competition differed from that of other litigation or arbitration moots. Each round involved students from three different law schools. One student played the role of a mediator, facilitating discussions between two pairs of students acting as business executives and legal counsel for disputing companies (dubbed the “negotiating teams”). A panel of judges scored the mediator based on the mediator’s relationship, communication, problem solving, and process skills, while the judges evaluated the negotiating teams’ communication, collaboration, and negotiation skills, in addition to their teamwork. Caitlin Hoeberlein added to HLS’s success at the Competition, as she was named the best client negotiator by the judges.

4 students with winning certificateThroughout, the Competition required participating teams to address most pressing challenges to successful cross-cultural and cross-border business relationships in a changing world. The moot mediation arose from the supposed breach of a purchase and sale agreement between a Brazilian fruit producer and a Canadian fruit wholesaler; differing cultural expectations, assumptions, and goals were thus consistently in play. The Parties’ business dispute was also exacerbated by a host of other unexpected issues, each introduced by the Competition’s organizing committee between each round. Global warming made the fruit supply vulnerable to pest infestation. Developments in supply chain technology—such as the rise of smart contracts—required the Parties’ commitment to investment in technological evolution. And, the threat of protectionist trade policies in each Parties’ home market pushed the Parties to think critically about the viability of a business partnership going forward.

Ultimately, the Competition pushed teams to think critically about the costs and benefits of contentious dispute resolution—whether arbitration or litigation—and to appreciate the benefits of pursuing a mediated settlement as an alternative. In doing so, the Competition embraced those negotiation goals core to the work of HNMCP and the teaching of the Harvard Negotiation Workshop: value creation, use of objective criteria in generating options, and separating the people from the problem. The goal, for all teams in the Competition, was not only to salvage a strong and long-standing business relationship, but also to grow the relationship, to create future opportunities for both sides.

The significance of these lessons reached beyond the Competition itself. According to numerous Brazilian lawyers who addressed the competing teams, this learning was of especial value in modern Brazil. Competing teams learned that Brazilian companies, in an overwhelming number of commercial disputes, aimed to bypass mediation or other forms of alternative dispute resolution mechanisms altogether, in favor of traditional, contentious dispute resolution. The Competition, in contrast, provided a clear picture to all those competing and in attendance: much of the time, more collaborative forms of dispute resolution are not only possible, but are even preferable.