John Sturrock reflects

… on Edinburgh, London and the challenges facing mediation everywhere….

John Sturrock QC, the founder of Core Solutions in Edinburgh and “Scotland’s finest mediator” (Legal 500) has now been a central member of the Brick Court team for two years.

I caught up with John on his way to the airport. He had just left a foreshortened Select Committee meeting on Brexit at Westminster, which he had been facilitating in his Special Adviser role (the General Election announcement had distracted his intended audience). He was flying to San Francisco to speak at an American Bar Association Dispute Resolution conference before going on to Memphis, Tennessee for the International Academy of Mediators conference. Such is the life of a mediation thought-leader!

Q : John what kind of litigation practice did you have at the Edinburgh Bar in the days before mediation discovered you? Have you left those experiences behind or do they still inform the work you do?

 I had a busy and varied civil and commercial practice. We tend to specialise less at the Scottish Bar so my portfolio included a wide range corporate and commercial work. That gives me a really good insight as a mediator into many different types of case.

So I was junior counsel in the then largest patent action in the Scottish courts. I handled major litigation arising out of the tobacco and pharmaceutical industries, property valuation (including petro-chemical plants, large entertainment venues and football stadiums!), banking, oil and gas, construction, planning, judicial review and the usual range of professional indemnity cases involving all sorts of disciplines. Along the way I paid a visit to the House of Lords in which my argument as junior counsel for the appellant on the matter of foreseeability prevailed – a moment of pleasure not to be shared overtly with my learned senior!!

Q : Scotland, not least because of your own efforts, has become something of a mecca for dispute resolution and mediation in particular. Do you have a sense that Scotland punches above its weight in ADR matters? Modesty aside how has this come about?

I think we need to be realistic. Scotland has seen a really significant rise in the use of mediation in commercial cases. And, yes, like you Bill, having left litigation practice to work full time in mediation and dispute resolution, I take some pleasure in that development, in which I have invested my professional career for over fifteen years. But we are still behind other jurisdictions in judicial support.

I sense this is changing now with a quite radical new leadership in our courts. However, this means that I often mediate in situations where the parties are choosing to do so because they want to – not because a court will penalise them for not doing so – and also earlier when more imaginative approaches can be taken. I am a great believer in making best use of the mediation process to help the key players achieve really useful results for their business.

Q : You were busy mediating in London well before you joined Chambers. But I wonder what differences you notice between London and other mediation environments in which you work in terms of the way parties participate in mediations and in their expectations of you?

Interesting question. I sense that there is greater expectation that there are particular ways in which mediators will act. Sometimes there is a more pro forma way which people have developed over a number of years and through great experience. I think one needs to be sensitive to that and the benefits which people have seen accrue. On the other hand, one of the themes at the ABA conference is likely to be the extent to which mediation in the US (especially in Southern California) has become formulaic and the province of the litigation profession. The fear expressed in the US is that mediation is now just a tool for use to achieve (or broker) late settlement. Indeed, they are proposing an alternative “early dispute resolution” model which seems to be just mediation carried out early! We need to avoid falling into the trap of being too predictable , I suggest.

Q : You must have one of the most varied portfolios of any ADR professional that I can think of, with a practice reaching into government, political parties, policy, the environment, churches, industry, as well as covering the narrow litigation-centred world I work in. Do they all complement each other and spark off each other or do you simply have to wear a different head for each of them?

The fundamentals are the same I think. The human condition, by definition, is universal. They say that there are only five themes in Hollywood! The facts and circumstances differ, the emotional component is expressed differently, the players have different drivers, and so on. But the beauty of our role is that, because we enablers and not fixers, we can draw on these many experiences and often use a technique or approach from another environment to help in the instant case. I seek to adapt to the “culture” wherever I am or whatever I am asked to deal with, and that means avoiding stereotyping or assuming that any situation fits into a particular box.

So, there is a sense of each mediation (or “facilitation”, if the “m” word is not the right one) providing a rich resource for all the others. You use the word “spark”: I think that is really important. When we are at our best as mediators, our job is to help spark others into new ways of approaching difficult problems and to do so with energy and commitment. I regard myself as very fortunate to work with such a diverse range of people and issues.

Next time I talk to our New Zealand-based mediator, Geoff Sharp

 

Rasputin the Mediator

We often try to identify heroes and thought leaders in the mediation community, often without success. While at first sight it may seem strange a description of the Tsarist mystic, Rasputin struck a chord with me the other day.

His story remains astonishing even after all the previous tellings…He suddenly broke with family routine embarking on several years of pilgrimage, returning home only intermittently. This period of spiritual quest and adventure honed his gift of psychological insight and persuasion: as he wandered from one set of strangers to another, he learned to assess them rapidly, speak to their fears and concerns, and exude rough-hewn sanctity [1]

Okay, not all of us have got our “rough-hewn sanctity” nailed down quite yet. But the rest of it seems on point.

Moreover, it turns out that Rasputin was in fact frequently ignored by the Romanovs who he was popularly supposed to hold in his thrall. It was probably Rasputin who advised the Tsar shortly before the revolution that he needed to regain the confidence of his people. “Nonsense”, replied Nicholas, “It is they who must regain my confidence”.

Well we have all had private sessions like that.

A new mediation thought leader?

I give you Grigori Yefimovich Rasputin.

[1] Full of Ecstasy and Fire, Stephen Lovell, Times Literary Supplement 
17th February 2017

These things happen in mediation…

sony_emoji_bTowards the end of a long day’s mediation the two  principals met together and managed to agree a settlement.

As they emerged from their meeting one of them took me to one side and told me how unhappy he was with the deal. I sympathised but resorted of course to the old platitude: “Well a good mediation always ends with both parties unhappy to some degree”.

At that point we both heard the sound of wild cheering breaking out in the room where the other principal was announcing the result of his discussions to his team.

Mediation, Mediocrity and Kakonomy

cr4v5miueaewnqmClassical market economics describes an efficient mechanism which optimises performance and minimises price. A kakonomy (the economics of the rotten) is an economic system in which the buyers and the sellers expect to and do exchange the mediocre.

Two Italian academics [1] give as an example of a kakonomic system with the supply of services by a lecturer to an Italian university. He knows he will be paid less than the contract rate – and late. The university knows he will give an incomplete series of lectures which are old hat. The lecturer and the university are happy with the bargain. The students are the ones who suffer.

Mediators are sometimes heard to worry that in order to succeed commercially they have to make concessions in the standards that they apply at mediations. They worry that if they were preserving the purest streams of mediation practice and insisting on high standards of communication (perhaps insisting on opening sessions, pushing for client-to-client meetings) they will be less likely to get work in future. Is this a kakonomic system? Do the mediators and the solicitors who select them make an unholy pact under which the mediator will not be too challenging in exchange for future business from the solicitor. Is there an under-current that solicitors want the mediation to fail and the case to continue? Are the clients the ones who suffer by getting a sub-standard mediation and remaining buttoned-up and unchallenged through the day?

In other words can you substitute mediator, solicitor and clients for the lecturer, university and students in the Italian example?

There certainly are mediations where the parties have strong and set views about how they wish to conduct matters (often in a very stilted and positional way) and where I have serious reservations as to whether those clients are getting the best out of the process.

Bill, no offence to you but mediation wasn’t our idea. We are prepared to listen but that’s all. If we don’t hear a number we like very shortly we’re going. And in any event Erica has a flight from City at 2.”

In those situations I have to try to insert elements of good mediation practice into the day, almost surreptitiously.

Equally it is very often the clients, particularly the experienced users of mediation, who are most forthright about their preferred mediation techniques. They will often be the most vociferous in their criticism of techniques they think are too touchy-feely, too hippyish.

And is there not something slightly patronising in the assumption that the mediator is the keeper of the flame and that the parties to the mediation are paying him to lead them out of error to the true path? These people negotiate every day, with enormous skill and without the assistance of a neutral, in their working lives. Those skills need to be invoked on the mediation day and not left at the door.

The tension between those two views is a constructive one and is going to be with us for a while. In the meantime kakonomy does at least give us a label for our previously nameless fear.

[1] Diego Gambetta and Gloria Origi, “The LL Game”

Quiet times for mediation anoraks? Just you wait…

It seems to be all quiet in England and Wales for mediation anoraks, at least for the civil and commercial kind.

Mediators don’t seem to be being dragged to court to give evidence and the Farmassist[1]  issue seems to have gone back to sleep for the time being. Predictably there is no sign of anybody making use of the new rules for cross-border mediation introduced on the back of the EU directive on mediation[2]. (If anybody is aware of a limitation period being extended or settlement agreement being registered as a judgement please do write in. Any news from elsewhere? Scotland?)

There is the usual scattering of decisions rearranging the Halsey[3] furniture in increasingly attractive formations. But it’s still the same three-piece-suite however you look at it. Nothing really to excite the afficionado.

Well, civil and commercial mediators should glance across at the employment law world for what might be a glimpse of the future.

Two seismic events have occurred there in the last two years. First a massive increase in tribunal fees (which provoked an unsuccessful judicial review by Unison, now on appeal). Second a requirement as of May 2014 that all tribunal cases must have been the subject of at least an attempt at conciliation with ACAS. Time limits are suspended while the ACAS process continues. But without an ACAS certificate confirming the attempt has been made the claim simply cannot be filed.

Result: tumbleweed blows through the employment bar as tribunal cases undergo a dramatic decline. It probably also blows through the ranks of the private mediators who specialise in employment cases. But for the government a huge reduction in the financial burden of the tribunal system presumably beckons.

In civil and commercial litigation we have just had the first of these experiences: a massive hike in civil filing fees came into force on 9th March 2015. Mediators (along with everybody else) anxiously wait to see what will happen next. The concern is of course that having been discouraged from litigating parties won’t get around to mediating either. Might they not resort to what Lord Neuburger once remarked was “that much neglected form of dispute resolution: capitulation”?

My local MP recently defended the big increase in court fees on the basis that more people would be encouraged mediate. (As he is also the Prime Minister this is quite an important conversion to the cause.) But as to what will actually happen on the ground, we shall see.

And what are the chances that we will also experience the second seismic change appropriately adjusted to the civil context:  compulsory pre-action conciliation/mediation? Far from negligible I would have thought, though if the government wants to raise revenue through these measures it presumably wants some claims issued.

The Ministry of Justice lies in that zone of unhappiness which surrounds any government department that has not had its budget ring-fenced for the next two years. It shares this small condemned cell with the police, possibly the armed services and very few others. Every option will have to be considered.

So hold on tight. Of course we have no civil equivalent of ACAS. But compulsory mediation information sessions in civil litigation could be coming to your town soon. And will the CMC’s much-expanded accreditation process come just in time to supply the neutrals of confirmed standing who will provide these  services?

Government intervention has had a radical effect on dispute resolution in the employment (and family) worlds in the last two years. Maybe things aren’t going to be so quiet on the civil/commercial front after all.

[1] Farm Assist v DEFRA [2009] EWHC 1102 (TCC) upholding a witness summons issued against a mediator against her objections.

[2] THE EU Mediation Directive came into force on 13th June 2008 requiring national governments to ensure compliance by 20th May 2011.

[3] Halsey v Milton Keynes [2004 1 WLR 3002] Court of Appeal guidance as to when it is appropriate to impose a costs sanction on a party which, though successful, had refused or failed to mediate. See now for example PFG v OMFS [2013] 1 WLR 1386