Mediation and Cups of Tea

“If only we’d had this conversation over a cup of tea fifteen years ago.” The client expressed frustration at the time which had passed, during which she and her opposite numbers had spent hundreds of thousands of pounds in litigation. That had got them no nearer to solving the underlying problem about which a court action had been raised all those years ago.

Now at mediation, remarkably this was the first occasion the clients had met during that period. Three different court actions, with a fourth pending, had left them financially impoverished and deeply angry at the legal system.

The (fairly recently instructed) lawyers at the mediation could only acknowledge the shocking nature of the situation. There was no rational explanation. Things had got out of hand. That of course had led to the well known problem of sunk costs – and who bears them. There was a possible route to pursue recovery of some of these but it would take that fourth litigation to open that up. Meantime, the real practical issue on the ground still needed to be addressed.

A “cup of tea policy” seems a rather quaint notion. But as a metaphor for meaningful negotiations it works well. Negotiating over a cuppa eases the tension. There is choreography in it too. Mediators can set up these moments well in order to make the very best of the opportunity.

Much more poignantly, the idea of a “cup of tea policy” was proposed at a mediation seminar in Edinburgh last week by Jo Berry, daughter of the murdered British MP Sir Anthony Berry, as an antidote to violence in political conflicts. She did so while sitting next to Patrick Magee, the one time IRA member who planted the bomb which killed her father at the Conservative Party conference in 1984. For seventeen years they have been speaking together about what it takes to overcome hatred and violence and consider healing and reconciliation. The key point they made, though, was the need for real understanding of the “other side”. Conversation over a real or metaphorical cup of tea can help achieve that.

“I did not understand where you were coming from.” “We felt misunderstood, demonised, not heard properly.” “Their political allegiance meant they couldn’t see beyond the uniforms…” “Your lawyers didn’t even try to make contact to find out what we really needed.”

Political malfunction and legal malfunction are not that far apart. For lawyers representing clients in claims handling and dispute resolution, whether in negotiation or mediation, it is critical to make – and take – time to listen and understand as well as to explain and be understood. For mediators, enabling that to happen is one of our primary roles. We must not underestimate its importance.

Trick or Treat? It’s Directory Time

Ah vanitas vanitatum! Which of us is happy in this world? Which of us has his desire? Or, having it, is satisfied?

Thackeray, Vanity Fair

Autumn is upon us, the clocks have gone back, mists and mellow fruitfulness prevail. And, fittingly, on Halloween itself the legal directories, TripAdvisor for the vexatious litigant, complete their 2018 editions.

Both halves of the profession are racked with anxiety in advance. As the polythene is torn off the books and the uploaded versions flicker on to the screen either fist pumps or a slight tremble of the lip will follow. Trick or treat?

Mediators, we have to admit, are not immune from this bonfire of the vanities. But the Brick Court Chambers team are pretty pleased with this year‘s harvest. Before we set out one two of the highlights (sorry!) we thought we would offer some pointers. We are keen to help the uninitiated appreciate the finer aspects a good directory entry.

  • Anybody who has run into Bill Wood in the last few months will not have escaped being told that he is (per Who’s Who Legal) the 2018 Mediator of the Year. They may be a touch surprised to see him described by Legal 500 this year as “immensely modest”.
  • Geoff Sharp, our New Zealand correspondent, has well and truly marked his increasing presence in London by crashing into Who’s Who Legal and Chambers at the first attempt.
  • Good news too for the indefatigable Tony Willis who this year has been spared ageist references to him being the “grandfather of mediation”, remarks that would have troubled a more flappable man.

We also enjoy the school report flavour that comes with the use of surnames.

Ruttle specialises in ships

Sturrock is the leading mediator in Scotland

Wood is in detention again

There seems to be a set vocabulary and there are clearly subtleties in the choice of epithet. The ones we like include “energetic” and “committed”.

We are less sure about some of the following (however well-intentioned);

“Hard-working” (bit of a plodder?) “Affable” (elderly? Under-prepared?) “Cerebral”(on another planet for most of the day?) “Puts clients at their ease” (likes to be loved and will not challenge even the most absurd aspects of your opponents case?). Enjoy!

John Sturrock QC

“He has tremendous presence and personality but his technical skills as a mediator are also excellent’ L500 2018

A “spellbinding mediator and great thinker”… “by far the best in the market” WWL 2018

“Singled out for praise by clients for his “relaxed, soft approach at outset” and yet for his ability to “still push hard to get a deal at the end of the day.” Chambers 2018

Geoff Sharp

“Leading mediator” in the field ….engaging manner, charm and intelligence” WWL 2018

“Really tenacious and determined to look at things from every angle to get the parties to talk” “He’s really sharp, asks the right questions, and knows when to intervene and when to give clients space” Chambers 2018

Stephen Ruttle QC

“always excellent” “outstanding” WWL 2018

“brings the experience that clients would expect from one of the top mediators in the business and clients are left impressed” L500 2018

a standout mediator who “is really on the ball. He can get into a party’s mind, find out what they care about, then get them over the line and find a resolution” Chambers 2018

Tony Willis

“A top practitioner in the market, specialising in commercial and regulatory disputes” WWL 2018

“… Has conducted over 1000 mediations” L500 2018

“Stands out among practitioners and clients for his tremendous experience” Chambers 2018

William Wood QC 

“The number-one mediator in the UK today” …”rare blend of good humour, professionalism and experience” WWL 2018

“Extraordinarily well-prepared”…. “such an effective mediator because he is extremely cerebral and, at the same time, immensely modest” L500 2018

“You always feel confident when he is there that a mediation will resolve” Chambers 2018

Our collective thanks to our referees who take time to answer the phone or return that researcher’s email and who continue to instruct us year in and year out.
We are very grateful.

Of Team Selection And Other Trials

Mediators think they probably have the best job in the world and they do not often make a plea for sympathy. But here goes.

As parties using mediation grow in confidence they have increasingly firm ideas as to how to conduct the mediation day. They are likely to have firm plans, for example, as to who should speak in the plenary session, when the first offer should be made and when and if clients should speak direct. All good.

Interestingly they also have firm ideas as to how the other side should conduct themselves. More difficult. We frequently mediate between parties who approach the mediation day in radically different ways and a conflict develops over process as intense as the dispute itself. One side may want the first offer at 10:15 am. The other wants an exhaustive series of meetings between the experts before any negotiation can happen. Choice of representative is particularly tricky. It could be “Where is Mr. Jones. None of the people attending know anything about this dispute” or as easily “Why is Jones coming? He is far too close to this dispute. He will never let them settle.”

This sort of dispute can start bubbling away well in advance of the mediation and the parties try to get the mediator involved. It happened today. I was copied in on an exchange in which one party suggested that both sides’ experts should attend next week’s mediation. His opposite number went straight into Caps Lock: “Our Mr. Jones will NOT BE ATTENDING”.

Unsurprisingly attempts to pick the other side’s team can touch a nerve.

“Good morning Sir Alex.

Arsene, how nice to hear from you. How can I help?

Well, I just wanted to share a few ideas about your back four for Saturday’s game.

Yes absolutely. Always worth listening to. Fire away…”

These rows can be an unhelpful start to the mediator’s involvement in the dispute. It is hard to build rapport with a party when your first telephone call   apparently adopts criticism of their strategy.   One has to tread carefully to avoid seeming to have adopted the opponent’s position. Following a volcanic discussion with Party A you call Party B. “Am I right in getting a slight sense that the parties have different views about representation?”

We will try to resolve these issues. They can give the mediator lots of clues to the psychology of the dispute. And parties do sometimes agree to review and change their approach. But in the end both sides only have the sanction of withdrawal as their sure remedy. The other side’s approach is the other side’s approach and you either work with it or you don’t mediate at all.

So, we will do our best but in the end it is your call.

The Singapore Convention

Settlements reached in cross border mediation will soon be enforceable internationally just like arbitral awards when UNCITAL’s Singapore Convention, the first UN treaty named after Singapore, comes into force in August next year provided sufficient countries ratify.

As a result, there is an expectation by Singaporean authorities that the city state’s most favoured status as an international mediation venue will be further confirmed.

Seen as mediation’s answer to the New York Convention that allows for the easy enforcement of arbitration awards, the Singapore Convention comes on top of much mediation activity in Singapore having last year also enacted a Mediation Act whereby mediated agreements can be recorded as orders of Singapore’s courts, allowing parties to enforce their terms more easily.

Key terms of the Singapore Convention include*;

Article 1 outlines the scope, applying the Convention to cross-border commercial disputes resolved through mediation where “at least two parties to the [written] settlement agreement have their places of business in different States” or in which parties “have their places of business different from either the State in which a substantial part of the obligations under the settlement agreement is performed or the State in which the subject matter of the settlement agreement is most closely connected.” Article 1 specifically excludes settlement agreements related to consumer, family, inheritance, and employment matters, as well as those enforceable as a judgment or as an arbitral award.

Article 2 defines key terms used in the Convention such as “place of business,” “in writing,” including in electronic form, and even “mediation.”

Article 3 summarizes the general principles and obligates member States that ratify the Convention and also permits a party subject of the Convention to invoke a defense and to subsequently prove that a particular dispute being raised was already previously resolved by a settlement agreement.

Article 4 provides a specific but broad checklist of what a party must supply for enforcement of the international settlement agreements that result from mediation. Article 4 includes submission of a “settlement agreement signed by the parties” and “evidence that the settlement agreement resulted from mediation.” Evidence includes items “such as” a “mediator’s signature on the settlement agreement,” or “a document signed by the mediator,” or “an attestation by the institution” administering the mediation. In the absence of such proof, Article 4 allows a party to submit “other evidence” acceptable or required by a competent authority of the member State where relief is sought. Article 4 also addresses key issues related to electronic communication, translation of settlement agreements, and calls for the competent authority of the member States enforcing the settlement agreements to “act expeditiously.”

Article 5 was vigorously debated and certain overlaps within the Article are intentional to accommodate the concerns of a member State’s domestic legal systems. Article 5 includes the grounds when a competent authority may refuse to grant enforcement. These circumstances include incapacity of a party, or where the settlement agreement a) is null and void, inoperative or incapable of being performed; b) not binding or not final; c) was subsequently modified; d) was performed; e) is not clear or comprehensible; or where granting relief would be contrary to terms of the settlement agreement or contrary to public policy, and subject matter is not capable of settlement by mediation under the law of that party. A competent authority may also refuse to grant relief where there is a serious breach by the mediation of standards applicable to the mediator or the failure by the mediator to disclose to the parties’ circumstances as to the mediator’s impartiality or independence.

Article 6 addresses issues of parallel applications or claims and draws inspiration from the New York Convention. It grants, to the competent authority of the member State where relief is being sought, wide discretion to adjourn its decision under the Convention where an application or claim relating to a settlement agreement was made in a court, an arbitral tribunal, or other competent authority.

Article 7 also draws inspiration from the New York Convention and allows member States flexibility to enact national legislation in their countries to expand the scope of settlement agreements excluded by Article 1, Paragraphs 2 and 3 of the Singapore Convention.

Article 8 allows for a tailored adoption of the Convention by each member State, allowing for two reservations when ratifying the Convention. The first reservation is one which relates to the member State or its own governmental agency. The second allows for a declaration that the Convention applies only where the parties to the settlement agreement resulting from mediation have agreed to the application of the Convention.

* Singapore Convention: A First Look by Deborah Masucci and M. Salman Ravala

Brick Court mediators are active in Singapore and Hong Kong and would be delighted to talk to you about mediating in Asia.

Aftercare, Chardonnay and Arizona

Sitting on a panel of mediators in front of an audience of US insurance lawyers last month the topic of mediation aftercare came up. The view on all sides was that when mediations do not settle on the day the mediator’s involvement in the days and weeks that follow is now routine and expected .

Parties expect the mediator to be in contact by phone and email, maybe even over coffee or in a reconvened smaller group. These exchanges can continue over weeks, even months. I have once or twice attended court in mid-trial just before the lunch adjournment at the invitation of the parties to meet them and try to break the deadlock.

Some counsel like a light touch, others want the mediator to push hard. Except in the few cases of truly angry termination (and sometimes even in those) aftercare is taken for granted

Why is it so productive? Companies and individuals can get painted into a corner on the day of the mediation. People get tired and frustrated. Big organisations can simply take time to process a new view of a case as they turn the proverbial super-tanker.

In the hour the panel took to address the conference (in Phoenix, Arizona) I received two text messages.

The first was an unremarkable inquiry from my daughter as to why there was no chardonnay in the fridge at home. But the second from the general counsel of a major media company read simply “Deal Done!”.  A potentially nasty trial between the organisation and its departing Chief Executive had been due to start the next working day. I had overseen an exchange of offers that morning in Phoenix (the afternoon in London) by telephone and email.

I would have punched the air but I was too busy being English.  Sometimes the aftercare seems to be more challenging and more rewarding than the surgery itself.