Rory Macmillan Dispute Resolution in Practice: Role-Play Exercise ITU/BDT Arab Regional Workshop on Dispute Resolution B

1. Rory Macmillan Dispute Resolution in Practice: Role-Play Exercise ITU/BDT Arab Regional Workshop on Dispute Resolution Bahrain 31 May – 1 June 2004

2. Table of contents • INTRODUCTION • THE MUMTAZ ROLE-PLAY • ELEMENTS OF A MEDIATION • HOW THE ROLE-PLAY WILL WORK

3. Table of contents • INTRODUCTION • THE MUMTAZ ROLE-PLAY • ELEMENTS OF A MEDIATION • HOW THE ROLE-PLAY WILL WORK

4. Disputes can be a healthy sign but ultimatelythe key is to ensure they are well resolved • At one level, the presence of disputes evidences activity and sometimes competition in the market • However, where they remain unresolved, disputes indicate inefficient use of resources and a sector cost

5. What are the regulator’s roles andwhat tools or resources may be available? Rule maker Enforcer Adjudicator Mediator Legislative Punitive Judicial Facilitative Ex ante Ex post Ex ante/post

6. One of the most valuable dynamicresources is the parties’ own interests • Commercial return on investment • Opportunity to grow (or defend) • Covering the risk premium • Predictable legal/regulatory rights

7. The role-play is designed to help gaininsight into working with the parties’ incentives • Designed as a mediation • Explore the various interests at play • Exploit parties’ interests for the sector regulatory policy agenda

8. Table of contents • INTRODUCTION • THE MUMTAZ ROLE-PLAY • ELEMENTS OF A MEDIATION • HOW THE ROLE-PLAY WILL WORK

9. The purpose • Explore dynamics and structural issues in dispute resolution • Provide a flavour of the various roles, perspectives, interests and incentives • Gain insight into problems and solutions

10. The context • Mumtaz, relatively new to liberalization • Market undergoing rapid transition • Telecom Authority with regulatory and dispute resolution mandate

11. The disputing parties • Mumtazcom, a privatized incumbent fixed line operator with a mobile subsidiary (Mumtaz Mobile) and an ISP • Mobilkiteer, a successful new entrant which now leads the mobile market

12. The official complaint • Mobile termination rates • Discrimination • Quality of service • Other issues in the air

13. The issues • Commercial, operational, technical • Legal, jurisdictional, institutional • Policy, power asymmetry, personal

14. Adjudicator/mediator • Telecom Authority’s Dispute Resolution Procedure • Adjudication/mediator powers • The meeting is a (regulatory) mediation

15. Table of contents • INTRODUCTION • THE TOKLAND ROLE-PLAY • ELEMENTS OF A MEDIATION • HOW THE ROLE-PLAY WILL WORK

16. Elements of a mediation Preparation Opening Exploration Negotiation Conclusion Source: CEDR

17. Toy Engines demonstration

18. Toy Engines demonstration (contd.) • Mr. Sykes: Owner of Charles Games, a toy trains manufacturer • Ms. Lecchi: President of Russell Toys, a toy shop • Contract: Charles Games to deliver 100 toy trains to Russell Toys on 1st December, payment against delivery

19. Toy Engines demonstration (contd.) • Charles Games delivered 50 trains on 20th December • Russell Toys claims it could only sell 20 before Christmas and so lost sales • Russell Toys has not paid Charles Games • They have hired a mediator…

20. Preparation • Understanding the parties’ claims • Understanding the parties’ interests • Understanding the parties’ alternatives

21. Opening • Establishing process and ground rules • Establishing authority of and confidence in the mediator and rapport with parties • Setting a tone and environment conducive to negotiation • Opening statements by the parties

22. Exploration • Focus on interests rather than positions • Open-ended questioning, probing for underlying issues and reflecting back • Reality testing, BATNA, WATNA and the other parties’ shoes

23. Negotiation • Finding convergent interests • Principled negotiation instead of positional bargaining • Beyond the “point of despair”

24. Conclusion • Identifying and recording points of agreement • Ownership of result by the parties • Workable and durable

25. Table of contents • INTRODUCTION • THE TOKLAND ROLE-PLAY • ELEMENTS OF A MEDIATION • HOW THE ROLE-PLAY WILL WORK

26. The participants • 2 or 3 representatives from Mumtazcom, the fixed line operator • 2 or 3 representatives from Mobilkiteer, the mobile company • 2 TA-appointed adjudicator/mediators

27. Forming your teams • Read the briefings carefully • Gather with your fellow team members • Discuss the facts, interests, strategies and roles

28. Information available; identify the issues • Shared and confidential briefings • What are the primary claims and defences in dispute? • What secondary issues could come up?

29. Identify the interests • What are your short-term and long-term interests and how are they prioritized? • What are other players’ likely interests and how might they be prioritizing them? • Where do interests converge and where do they conflict?

30. Identify the choices • What are your main choices, your BATNA and your WATNA? • What are the other parties’ choices, their BATNA and their WATNA?

31. Adopt your strategies • What is your strategy to pursue your interests given the choices available? • What are your fall-back strategies? • What might other parties’ strategies be?

32. Guidance during the exercise • Each group will have one or more assistant who can help in case you have questions • Generally try to accept the facts as they are stated and run with them • If necessary, make some facts up (but be consistent with the overall fact pattern)

33. Getting the most out of the exercise • No one approach or solution is correct • Assume your character and your interests • Remember, it’s a game and we are here to learn!

34. QUESTIONS FOR THE WORKSHOP

35. Questions at the beginning of the workshop? • What questions are you bringing to this workshop? • What challenges are you facing at home that the workshop can help with? • What issues would you like addressed?