A mediation used to be a meeting of all the participants in a physical place. I mediated in a range of different venues around the country including parties’ business premises, solicitors’ offices and the International Dispute Resolution Centre.
Meetings of all types have stopped for the time being, so business meetings, university lectures, and religious services have moved to video conferencing platforms such as MS Teams, Skype and Zoom.
In my experience, Zoom is currently the best alternative to face to face mediations, as it replicates a typical mediation set-up, with a main room for joint sessions, and breakout rooms for individual sessions.
Disputes can also be mediated on the telephone. In the past, I was a conciliator in many disputes between Accountants and their clients, using just the telephone and email.
However, no virtual meeting (or telephone conference call) can replace engaging with other individuals face to face, listening to their stories, and building an understanding of their needs, interests and priorities.
Will everything go back to ‘normal’ at some point? Perhaps, for more complex mediations with several parties and lawyers attending with numerous bundles of documents, and some venues have bookings for later this year. However, for other mediations, people will ask whether additional time and money should be spent travelling to meet for mediations, especially if home working becomes widely accepted as a ‘new normal’ way of working.
I was very sad to hear that David Richbell had passed away recently. A kind and gentle man, I met him only briefly a couple times but I learned much about him, and a great deal about the art of mediation, from his book ‘How to Master Commercial Mediation’ and his videos on Mediator Academy.
I particularly like this passage from his book:
‘I am often asked in a mediation, when passing on a statement or a final offer: “Do you believe them?” and I have to say: “I believe everything I am told, but I know that not everyone tells the truth”.
In an article in The Times a couple of weeks ago, Monsignor Roderick Strange wrote about the influence of his former headmaster (Johnny) who had been the Provincial (or superior) of the Jesuits in Britain for many years. The following paragraph in particular interested me as a mediator:
‘At Johnny’s funeral, Bernard Parkin preached. He had been Johnny’s assistant during his years as provincial and there was a story he told that has stuck in my memory. One day they went to visit a couple who were deeply angry with the province for a number of reasons. On their arrival they were greeted politely, but coolly, and then the couple began to air their grievances. The tirade, as Bernard called it, went on for about half an hour and throughout Johnny listened, but said nothing. Bernard was amazed. Surely, he thought, Johnny would offer some defence. He didn’t. When they had finished, he just made a few conciliatory comments. And then Bernard realised that the couple’s anger had evaporated and friendship had been renewed. They had been listened to with respect. Attentive, respectful listening had brought healing. It was striking, after Johnny had died, how many people referred to his capacity for listening. Relationships that reveal respect for others are invaluable.’
The complete article can be read here.
Blaming others is common in most disputes that come to mediation.
There is nothing new about this, and an enchanting old example from The Book of Genesis was read out during Mass today in many Christian churches:
The Lord God … asked ‘Have you been eating of the tree I forbade you to eat?’
The man replied, ‘It was the woman you put with me; she gave me the fruit, and I ate it.’
Then the Lord God asked the woman, ‘What is this you have done?’
The woman replied, ‘The serpent tempted me and I ate.’
So Adam blames Eve. Adam also blames God (for putting Eve with him). And Eve blames the serpent.
In mediation, parties are encouraged not to dwell on blame, which tends to keep them stuck in the dispute and in the past, but to find a way of moving forward to a solution that works for them.
This month, the report of the Global Pound Conference was published by Herbert Smith Freehills, Pricewaterhouse Coopers and the International Mediation Institute.
The report is based on a huge amount of data involving more than 4,000 people at 28 conferences in 24 countries across the globe in 2016 and 2017.
The report is likely to have a substantial and long-term impact on commercial mediation.
The four ‘Key Global Themes’ identified in the report are:
- Efficiency is the key priority of parties in the choice of dispute resolution processes. This requires thought and engagement to bring appropriate resolution in acceptable timeframes and at realistic costs.
- Parties expect greater collaboration from their external lawyers when interacting with them and their opponents. This represents a potential challenge to traditional notions of how lawyers should represent clients in disputes.
- There is near universal recognition that Parties to disputes should be encouraged to consider processes like mediation before they commence adjudicative dispute resolution proceedings and that non-adjudicative processes like mediation or conciliation can work effectively in combination with litigation or arbitration.
- In-house counsel are the agents to facilitate organisational change. External lawyers are reported to be – and perceive themselves to be – resistant to change, but a new generation of in-house counsel will challenge this resistance.
A copy of the report can be downloaded from www.globalpound.org
When I qualified as a mediator (in January 2016) a colleague explained that in virtually every single dispute he had mediated, the event that the parties had initially regarded as the cause of their conflict turned out to be a secondary cause.
This has been my experience too. It is necessary to get to the root of the problem in order to help mediate it. The mediation process enables the root causes to be identified, and helps the parties overcome poor communication, misunderstandings, assumptions and a multitude of other barriers to negotiation and resolution.
For example, in a workplace case the new owner of a fashion shop started a disciplinary procedure against the manager (who she had acquired with the business) for apparently trivial matters. The manager lodged a grievance that the new owner was treating him less favourably because he was gay. These hostile HR procedures were having a damaging impact on the day to day working of this small business. Eventually, it transpired that the real cause was the manager’s resentment that the previous owner had broken his promise to give him (ie the manager) the opportunity to bid for the shop before selling it elsewhere. Once this was out in the open, the way was clear for the owner and the manager to build a working relationship.
This week, CEDR opened their Mediation Audit for 2018, which they are running in conjunction with the Civil Mediation Council.
This is an established biennial audit of mediators and lawyers and their attitudes towards and experiences of civil and commercial mediation in the United Kingdom. The object of the audit is to better understand and raise the profile of commercial mediation.
Here is a link to the results of the last audit (in 2016).
This year’s audit will also be conducted in the US, in conjunction with the International Institute for Conflict Prevention & Resolution.
Mediators can participate by going to the UK & US Mediators’ page.
Lawyers can participate by going to the UK & US Lawyers’ page.
The Audit will close on Monday 30th April 2018.
This month, a colleague and I delivered two of the workshops at an ‘awayday’ for the staff of a large organisation. We had been given the title of our workshop: ‘Dealing with difficult people’.
My colleague started the workshops by asking the two groups (of about 30 people each) how many of them have to deal with difficult people at work. Virtually all hands went up. He then asked how many of them considered themselves to be difficult people. About 5 hands went up in each group.
Perhaps this is an illustration of a tendency many of us have: we attribute other people’s behaviour to their character, but attribute our own behaviour to the circumstances we are in at the time. He was late because he’s lazy; I was late because my car wouldn’t start.
My main role at the two workshops was to spend half an hour talking about how some mediation techniques can be helpful in dealing with ‘difficult people’ or difficult situations at work. I focused on ‘reframing’. For example, a party to a mediation may say about her colleague: ‘She is a slob!’. The mediator would try to reframe this by saying: ‘It bothers you when you find her papers spread around the office.’
The workshop participants went through a couple of short scenarios and suggested some very useful ways of reframing inflammatory statements.
Recently, the Civil Justice Council invited submissions on how to encourage greater use of Mediation in the Civil Courts. The Law Society’s submission this month argues that lawyers and consumers need to ‘buy into’ the use of Mediation and other Alternative Dispute Resolution methods.
So how can this be achieved? Higher Court fees have nudged more disputes towards early Mediation, as have costs’ budgeting and pre-action protocols. Increased use of Mediation and ADR clauses in commercial contracts would make a difference, albeit not immediately. Probably a complete culture change is required.
The Law Society’s submission advises against mandatory Mediation or ADR as a condition for issuing proceedings in the Civil Courts because it would ‘frustrate the principle’ that litigants should have unimpeded access to the courts. Cynics often say that lawyers discourage ADR because it signifies an Alarming Drop in Revenue.
However, I think that there is another strong reason for avoiding mandatory Mediation. In my experience, the best way to get disputing parties to ‘buy into’ Mediation is to point to the high proportion of cases which settle through Mediation. However, that high proportion is not based on a random sample of disputes: it is based on a self-selecting group of cases in which all the parties have voluntarily agreed to try mediation. There is no reason to suppose that the same outcomes would be achieved in mandatory mediations. And if success rates in Mediations fell as a result, that would be a terrible shame.
I gave my first talk on mediation this month. I was speaking at a ‘Managing Conflict’ workshop for line managers, and one of my topics was ‘The role of mediation in workplace disputes’. I had a great deal of material for my preparation, having immersed myself in mediation practice and theory for the last two years and listened to talks by many leading mediators.
As it was a workshop, I included a short role-play, using two volunteers as the parties, which illustrated how mediation can bring an early end to a workplace dispute.
The session was very well received.