Between Saturday 14 October and Friday 20 October 2017, various events will be taking place around the country as part of Mediation Awareness Week.
The events include sessions which:
- Explain how mediation is used to resolve disputes and conflict of all kinds
- Demonstrate how mediation provides a quicker, cheaper and more effective alternative to litigation
- Show how use of mediation benefits businesses, communities and individuals.
Full details of these events (and booking information) are available here:
I was asked this week about making changes to employment contracts and employment policies & procedures to introduce compulsory mediation. The company was delighted that a mediator (not me) had recently helped solve a long running and apparently intractable problem between two of their employees.
Workplace mediation has extremely high success rates, so it’s tempting to make it compulsory. However, those workplace disputes which currently go to mediation are not a random sample of workplace disputes: in each one of them, the parties have voluntarily agreed to try mediation. So the currently high success rates for voluntary workplace mediations are unlikely to apply to non-voluntary workplace mediations.
Nevertheless, there is every reason to strongly encourage employees and managers to try mediation where appropriate, and a good first step is to make provision for it in employment documentation. CEDR produce standard precedent clauses for use in employment documentation (available on their website). Their clauses for employment contracts provide that parties will ‘consider’ mediation if other procedures haven’t worked; and their clauses for grievance, disciplinary, capability and other procedures provide that an employee or manager can suggest mediation at any stage.
Paul Randolph, in his excellent book ‘The Psychology of Conflict’, says … ‘’Sorry’ is the word many aggrieved parties crave most strongly. It is at the same time an inexpensive, swift and easy means of addressing and resolving a perceived injustice. Yet it is almost impossible to extract the word from a litigant or disputing party.’
This has also been my experience in dealing with hundreds of disputes as a mediator, a lawyer and a human resources adviser.
Perhaps things will change following a bold step by NHS Resolution, the division of the NHS that provides indemnity cover for clinical liabilities. They have recently published a leaflet called ‘Saying Sorry’ which tells clinicians they have a duty to say sorry to patients and their families as soon as possible. The document expressly disapproves of expressions such as ‘I’m sorry you feel like that’ and suggests expressions such as ‘I’m sorry x happened’ and ‘We’re truly sorry for the distress caused’. It goes on to reassure clinicians: “We have never, and will never, refuse cover on a claim because an apology has been given.”
At the College of Mediators’ annual conference this month, one of the workshops was a brief introduction to the use of ‘Clean Language’.
We were divided into random pairs. One person in each pair spent 5 minutes asking the other questions about a hobby or interest. Then we swapped roles. Substantial information was revealed in 5 minutes about cycling (my partner’s hobby) and singing (mine).
The unusual aspect was that our trainer Trevor Horne would only permit us to use two types of question: (1) ‘and what kind of [cycling] is that [cycling]’ and (2) ‘and anything else about [cycling]’. The questions were reused several times, eg: ‘and what kind of [cycling holiday] is that [cycling holiday]’ and ‘and anything else about [cycling holiday]’.
The two questions do not introduce any information or opinions from the questioner whatsoever.
The following book was recommended to those of us who wanted to learn more: Clean Language: Revealing Metaphors and Opening Minds by Wendy Sullivan and Judy Rees
Writing in the Harvard Business Review this month, Sally Blount and Shana Carroll explain that staff will often resist organisational change for various reasons.
The authors provide a simple strategy for (1) identifying sources of resistance and (2) overcoming resistance by talking to resistors.
When talking to resistors, the authors advise managers to focus on listening: ‘… no matter how brilliant your plan or persuasive your argument, you must make everyone feel understood. That starts and ends with listening. When you’re in these conversations, make sure to take up no more than 20% of the airtime, and when you do speak, try to repeat back what you’ve heard as much as possible.’
The article, which is only two pages long, is available here.
Mediation is usually seen as an alternative to litigation or arbitration.
Yesterday, Pope Francis urged Mediation as an alternative to war.
Speaking about the escalating dispute between North Korea and the United States he said:
“We are talking about the future of humanity. Today, a widespread war would destroy – I would not say half of humanity – but a good part of humanity, and of culture, everything, everything. It would be terrible. I don’t think that humanity today would be able to withstand it.”
The Pope went on to say: “There are so many facilitators in the world, there are mediators who offer themselves, such as Norway for example … it is always ready to help. That is just one but there are many. But the path is the path of negotiations, of a diplomatic solution …”
The NHS is continuing to embrace mediation.
With effect from April 2017, the NHS Litigation Authority is changing its name to ‘NHS Resolution’. Helen Vernon, the Chief Executive, described this (and other changes) as ‘ … a fresh approach to resolution which reduces the need for costly and stressful court proceedings.”
This follows on from Helen Vernon’s statement in December 2016 when launching the NHSLA‘s new mediation service: ‘Mediation is an excellent forum for dispute resolution and provides injured patients and their families with an opportunity for face-to-face explanations and apologies when things go wrong and reducing the need for unnecessary litigation. We have used mediation to good effect throughout our 20 year history, including in high profile cases and group actions. … we will closely monitor the service to ensure we see the positive benefits we believe can result from greater uptake of this non-adversarial approach to dispute resolution.”
The Society of Mediators’ annual CPD event this month was an excellent refresher day, combining talks with role plays.
The opening presentation started with a slide of a battleship, illustrating how the speaker, a former RN Commander, used to settle some disputes before becoming a mediator.
More seriously, there was a useful revision of the key points of Fisher and Ury’s ‘Getting to Yes’: (1) Separate the people from the problem (2) focus on interests, not positions (3) invent options for mutual gain and (4) insist on using objective criteria.
And a reminder of the Society’s golden rules for mediators: ‘Listen, Listen, Listen’ and ‘Don’t make matters worse’.
Mary Banham-Hall, a family lawyer for thirty years, and a mediator for seventeen, has launched an online petition seeking to improve our litigation system.
She is campaigning to make litigation costs proportionate to the value of the case:
‘So here’s the plan. Once joint costs reach about 20% of case value, both clients must be referred to an accredited mediator to hear how mediation resolves disputes based on their shared interest in reaching an agreement and ending their litigation.’
Read Mary Banham-Hall’s video explaining her plan and sign the petition here:
The ADRgroup’s annual conference at St Hugh’s College Oxford was an excellent day, with valuable advice and guidance on both mediating and attracting mediation work. It also provided an excellent opportunity for sightseeing, with some eerie reminders of the ‘dead of Jericho’ and the ‘last bus to Woodstock’.