VITAL LAWS & MEDIATIONS
PIERRE KIRCH’S METHOD: GLOBAL VISION | SYSTEMIC ANALYSIS | STRATEGIC FOCUS
PIERRE KIRCH’S METHOD: GLOBAL VISION | SYSTEMIC ANALYSIS | STRATEGIC FOCUS
During his long period of lawyering in the BigLaw arena, Pierre Kirch was engaged in the type of high-stakes competition/antitrust practice where he would dissect companies and markets (supply & demand), products and services. A practice where Pierre had the knack to go to the heart of a company’s operations. Systemic Analysis is a key in this type of practice of the law. Pierre would often get the impression that he knew the company’s business as well as the company itself. In this approach, thus emerges a Global Vision of the company and its business operations. And from such experience emerges the desire to go to the vital essence of companies and the law, in today’s ecosystem of exponential technological change. The points where Business Innovation confronts Regulatory Reality. And the means to resolve conflict as it arises in the framework of Business Innovation in an efficient way: Mediation. To practice Vital Laws & Mediations.
WAYS & MEANS OF LEGAL EXPERTISE: ADVISORY ON EMERGING LEGAL ECOSYSTEM AROUND THE EU’S AI ACT |“DEEP DIVE” INTO CASES WHERE BUSINESS INNOVATION CONFRONTS REGULATORY REALITIES
“We are going to live in an epoch where the majority of our daily interactions are not with other people but with AI.”
—Mustafa Suleyman, The Coming Wave (2023)
Pierre Kirch is an EU AI regulatory lawyer, but not just: He is, first and foremost, an international business lawyer who engages in strategic legal and business thinking in a systematic way. Pierre believes that we have reached a watershed moment in the law, where a fundamental distinction is in the process of establishment between the physical world and the digital world. In recent years, the European Union has been marked by the emergence of a whole new Digital Regulatory Ecosystem. This involves a panoply of recent EU legislation, centered around the EU’s AI Act as the fundamental “constitutional” regulation. As for the institutional framework, the European Commission’s AI Office is taking form as the key point of the administrative infrastructure of the new Digital Regulatory Ecosystem. This ecosystem encompasses a myriad of EU regulations, spanning personal data protection rights (General Data Protection Regulation), material rules on the provision of on-line services and various obligations of the operators (Digital Services Act), market behavior on digital markets (Digital Markets Act), the regulation on the circulation and use of data (the Data Act), the Media Freedom Act, etc. This new regulatory ecosystem has points of interplay with traditional legal disciplines such as competition law and copyright law. The ensemble makes for a complex legal ecosystem, under Brussels-based EU regulatory law and practice. In this respect, Pierre Kirch has 35+ years of experience with the workings of the EU institutions in Brussels, starting with a six-month training period with the European Commission’s Legal Service in the 1980s.
Pierre’s approach is global. It is holistic. It is systemic. Systemic legal thinking is a way of making sense of the complexity of legal ecosystems by looking at them in terms of wholes and relationships and feedbacks between them rather than splitting them down into individual parts. He brings generalist technology law expertise to the fore. At the same time, with his academic background in the law of Artificial Intelligence, he may be considered to be an AI Lawyer. This said, instead of viewing the new Digital Regulatory Ecosystem as being the stuff of various separate legal disciplines, he sees it as one system. For complex issues, he proposes to clients to take a “Deep Dive” into the ecosystem. To analyze the “Big Picture”. Businesses operate as systems and so does the EU’s new Digital Regulatory Ecosystem, constructed piece by piece. Pierre’s expertise comes from his profound knowledge of the new ecosystem in the framework of a broad generalist legal background and his longstanding experience with the EU’s institutional methods and practices in Brussels.
FUNDAMENTAL RISK PRINCIPLES OF THE EU’S AI ACT
The EU’s AI Act, which entered into force in July 2024, is reputed to be the world’s first every comprehensive legal framework on AI. It will be the cornerstone of a whole new legal system to be set out in implementing regulations and EU guidance documentation, with administration through a specific AI regulatory infrastructure (most notably, the European Commission’s AI Office). The entire EU regulatory system is based on four levels of risk, ranging from unacceptable risk (prohibited) to minimal risk (no regulatory measures). See the diagram.
PIERRE KIRCH HAS EVOLVED TO PRACTICE A SOLE APPROACH TO CONFLICT RESOLUTION: MEDIATION
“Look forward, not back….You will satisfy your interests better if you talk about where you would like to go rather than about where you come from. Instead of arguing with the other side about the past,…talk about what you want to have happen in the future. Instead of asking them to justify what they did yesterday, ask ‘Who should do what tomorrow?’”.
–Roger Fisher & William Ury (Harvard Negotiation Project), Gettting to Yes: Negotiating Agreement without Giving In (1981).
Mediation is an informal consensual process by which a neutral intermediary, the mediator, assists the parties in reaching a settlement of the conflict. In the traditional European mediation method, he mediator acts as a facilitator to enable the re-establishment of communication between the parties, to define precisely the points in conflict and their causes, and to favor methods of analysis allowing to reach a mutually acceptable solution. Facilitative mediators such as Pierre Kirch are highly trained to conduct a process of communication between opposing parties in accordance with a five-stage facilitative mediation process often described in visual form through an image developed by an American professor and known as "Fiutak’s Circle".
THE FACILITATIVE MEDIATION CERCLE
What does a mediator add that the parties can’t do themselves ?
Pierre Kirch, as a facilitative mediator, brings to the mediation forum training and experience, process skills, absolute independence, impartiality and neutrality, empathy for the parties. His objective: to allow the parties to describe individually the facts giving rise to the conflict, to facilitate the restoration of communication between the parties, to reach “agreement” on the specific points of disagreement and thus conflict, to assist in the identification of the true interests of the parties, to facilitate a brainstorming session by the parties to identify possible solutions and then for the parties to determine the best solution mutually. That, in a nutshell, is the mediation process. Mediation, if it is done right, is rapid (corresponding to the business concept of time: the time of mediation is not the time of traditional dispute resolution methods, as attested by the well-known axiom, “The time of the courts is not the time of business”). Mediation is voluntary, which means that the parties must consent both to recourse to the mediation process and, in fine, the agreed-upon solution, in cases where there is one (statistics generally show 7(-80% of business mediations end in an agreement). It is eminently confidential, even with regard to the existence of the mediation. As a method, it is designed to arrive at a highly personalized solution, through recourse to the minimum of resources necessary. It is based on the will of the parties, their willpower (and that of the mediator to facilitate a solution). Success in mediation often depends on the imagination of the parties, thinking “out of the box” towards solutions. It is a method that protects business secrets in an absolute, hermetic way. It favors the maintenance of business relationships, rather than their destruction. And it may be the form of dispute resolution that will correspond to the flux of new types of conflict, in particular new types of conflict involving technology and Artificial Intelligence systems.
The five-point mediation circle devised by American Professor Thomas Fiutek, to show the stages of a facilitative mediation.
In the face of conflict, through recourse to the mediation alternative, the parties are saying, “Let’s get through this together. Let’s communicate. With the careful assistance of a mediator, we can work this out in a way that corresponds to business logic.” Indeed, mediation can allow for the maintenance of the business relationship despite the existence of a conflict.
RETHINKING BUSINESS LITIGATION: MEDIATION AS THE PREFERRED STRATEGIC APPROACH TO CONFLICT RESOLUTION IN THE EMERGING DIGITAL REGULATORY ECOSYSTEM
It may be that mediation is the form of dispute resolution that will correspond to the flux of new types of conflict, in particular new types of conflict involving technology and Artificial Intelligence systems.
Worldwide, the technological landscape is today largely driven by what seems to be an exponential development of Artificial Intelligence tools, based on powerful algorithms and known as “systems”. Some say that we are facing the “most profound human revolution in history”, more consequent than the first industrial revolution. Pierre Kirch notes that, in this framework, new types of conflicts are now starting to emerge involving AI systems of growing technological complexity and conflicts involving potentially massive volumes of data. Can the systemic approach of mediation lead to innovative solutions? Given the recent broad deployment of generative AI models such as ChatGPT, the issue may well go beyond the sphere of business disputes to touch upon all aspects of contemporary life where conflict may be resolved through mediation, leading to a provocative question: Will a “Mediation 2.0” emerge, requiring that mediators become “AI fluent”? One of the main duties of a facilitative mediator is to facilitate restoration of communication between parties in conflict: This means speaking and understanding the language of Artificial Intelligence.
Pierre Kirch believes that we are on the cusp of a whole new era in which businesses will become more and more responsive to the idea that, for certain cases of disputes involving AI systems, mediation via AI-fluent mediators will be understood to bring advantages in terms of timing, confidentiality and preservation of vital business interests in comparison with traditional judicial and arbitral dispute resolution methods.
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