Andreas Hacke is an “absolutely splendid practitioner” who is “extremely efficient in his approach” and a “real master of Decision Tree Analysis”.
Andreas Hacke is partner at zhmp in Düsseldorf, Germany and specialised lawyer (Fachanwalt) in corporate and commercial law. He studied law in Heidelberg, Leiden (NL), and Bonn and holds a PhD in law from Muenster University. He holds a post as visiting lecturer at the University of Oxford, England. Andreas is regularly appointed both as arbitrator and mediator to resolve international and national corporate and commercial disputes from a wide range of industries. He is an expert in the use of innovative and hybrid dispute resolution procedures.
What qualities make for an effective mediator?
In my opinion, a solid set of mediator’s skills combined with the ability to connect to people and to build rapport are the most important “ingredients” for an effective mediator. It helps if you can quickly grasp the essence of the case both on the problem and on the people level and if you are able to then design the process accordingly to be “fitting to the fuss”. In short: competence and empathy. Contrary to what many disputing parties believe, deep knowledge of the matter at stake (the industry, the dispute substance) may be helpful, but is not essential for success. An effective mediator can be effective in any area or industry.
What is the most interesting mediation you have been a part of?
Every mediation is different and always like an adventure journey: you embark together with a crew of people new to you, to cross waters unchartered to you, and not knowing where the harbour may lie. Therefore, each mediation is interesting, and it is hard to single one out. One very interesting mediation I was involved in was one which falls out of the scope of my usual business mediations. It was a case literally behind the scenes of a famous theatre: a dispute had arisen between the politics (as owner), the art director (who pushed for ever more art), the finance director (who needed to balance the needs of politics and art), and the personnel (who needed to bring it all to stage). To see what it means to “produce” the art of theatre play every evening anew and to help to resolve the dispute which stood in the way was a very special and enriching experience for me. Another very interesting case involved the economic (but also personal) consequences of certain global political embargoes. Here, both parties would have loved to have continued their long-lasting business relationships but were forced to terminate them due to politics. It was fascinating to witness the personal and economic implications that politics can have on everyday business life and how people (and business) act under political pressure.
What trends are you seeing emerge in the types of disputes currently going to mediation?
I see a trend to use mediation in a more widespread set of cases. Users are more and more moving away from the classical “textbook” approach which saw mediation useful especially in cases where some form of “joint future” was at stake, towards a more practical approach which tries mediation also in “one off” cases of a purely distributive nature like in post M&A-disputes or D&O-liability cases. Experience shows that mediation can also be highly effective in these kinds of cases. The more parties and counsel make that experience, the more they will advise their clients to try mediation. Also, more and more contracts do contain mediation clauses therefore bringing a wider set of cases to the mediation arena.
In your opinion, what are the advantages of combining different types of dispute resolution? Is there a growing interest in using this approach to solve disputes?
Yes, I do see a growing interest in combining different types of dispute resolution. The advantages lie in the fact that at the time of choice of a (first) dispute resolution procedure, often neither the parties nor the neutral(s) know which procedure would be best apt to resolve a given dispute or parts thereof. For example, in an arbitration, the tribunal may only learn after a first round of submissions that the parties are open to settlement negotiations and that a mid-stream mediation window might help them. Or, to the contrary, in a mediation, the mediator may see after a first mediation session with the parties that at the core of the dispute lies a purely legal question which an arbitral tribunal might better resolve for the parties. I would therefore like to see the dispute resolution community to be more open and encompassing, so that mediation specialists gain know-how also in arbitration and other hybrid procedures while at the same time arbitration specialists should embrace mediation and other procedures more openly. I think the future lies not in “mediation” or in “arbitration” but in the ability to use and to navigate between all dispute resolution tools and to have the skills to choose and use the right tool in the right circumstances. I am convinced that in the future we will see a more flexible and permeable approach between the different classical dispute resolution procedures. So, one day we may not speak of “mediators” or “arbitrators” anymore, but of “dispute resolvers”. This is also how I understand my own practice as neutral.
How has covid-19 affected your practice and mediation practice more broadly?
Twofold: first of all, my mediation practice had to be moved online. This works surprisingly well if you as mediator and the parties are open to adapt their practices to the new online environment. Scheduling sessions has become easier. By the same token, mediation has become more easily accessible for the users. Sessions can be designed shorter and more flexible with longer breaks in between. This is especially helpful in complex cases with large entities in which different levels of responsibility must be included in any settlement decision. Further, the classical mediator’s techniques (especially visualising the spoken word) need to be “transported” on screen, using smart software applications instead of flipcharts and pin walls. This is challenging, but very interesting, too. Second, covid-19 has brought about new types of cases to mediation in which the primary contractual obligations (eg, delivery of goods or finishing of some construction work) were still key to the parties, while in most cases in the pre-covid-19 era the primary obligations were no longer in focus and the cases had already moved on to the damages phase. Also, parties in the typical covid-19 disputes were both under extreme pressure and at the same time very creative and open to non-boiler-plate solutions. Finally, covid-19 has brought disputes to parties’ relationships that were utterly friendly and free of any conflict before. This has often been a disturbing experience to the people involved. On the positive side, the fact that there often was not just one of the parties to blame for the damages caused helped the parties to cooperate in finding a joint solution.
Do you see mediation becoming more attractive as a result of covid-19?
Yes, I think there is a certain trend toward mediation that is spurred by the covid-19 crisis: resolving disputes more quickly, less expensive, confidential and under full and ultimate control of the parties has always been an attractive proposition, but it becomes even more attractive when time is of the essence and resources are strained. I am convinced that the many positive mediation experiences that many users have made during the coronavirus pandemic will serve as fertile ground for choosing mediation more often as the default dispute resolution procedure before taking a case to court or arbitration.
What is the best piece of advice you have ever received?
“As mediator, you are the least important person in the room!”
What professional challenges are you anticipating throughout the coming few years, and how do you intend to navigate them?
The unstoppable rise of AI will bring about important challenges for all lawyers with no exception to dispute resolution practitioners. It will be interesting to see which disputes will soon be resolved in some automatised manner (eg, through self-enforcing, blockchain-based smart contracts) and which ones will still resort to humans for resolution. I intend to navigate this challenge by trying to stay in close touch with my children to let them teach me the hottest AI stuff, while still reaching out to those who continue to believe that human interaction, a word of empathy and a smile at the right time are helpful tools to help parties in dispute find agreement.