Brexit and Other Puzzles

Mediators and mediation featured twice in the London papers last weekend.

The first and least obvious reference was a crossword clue: 2 down in Saturday‘s daily Telegraph crossword clue read:

“Press and TV nonsense upset referee.“ (8 letters)

Meanwhile and less trivially the Financial Times carried the suggestion that in tackling Brexit “the UK and the EU should immediately engage a mediator – former President Barack Obama could be a candidate.”

The immediate consequence of that suggestion has been a fascinating online debate amongst mediators. Some think that any such involvement would be a disastrous over-reach for the work we do, and the skill set we possess. Others support the suggestion and think that active listening and re-framing would help the parties resolve their profound structural and cognitive problems.  

My Brick Court colleague John Sturrock asks tellingly why the developed world is only too ready to recommend mediation to others to deal with conflicts around the world but regards its own problems as too sophisticated to benefit from it.

These issues clearly have a distance yet to run and will be tackled in future posts. But stepping back, what is striking is that we see an increasing national familiarity with the whole idea of mediation. The fact is that people and organisations who hit conflict increasingly see mediation as one of the options. It is becoming culturally normal. Increasingly they know (albeit roughly) what it is. Some of them even know the difference between arbitration and mediation.

I do not think that 15 (maybe even 10) years ago “mediator” would have featured as an answer to a crossword clue, still less as an answer to a major national issue.

If I could deconstruct the clue for you it goes like this:

“Press and TV“ = MEDIA

“nonsense upset“ is “ROT“ turned upside down =TOR The whole means some form of umpire.

Media + tor = MEDIATOR

The idea that there might be alternatives to litigation or abuse or violence is seeping rather than flooding into the national consciousness. But one article, one crossword clue at a time it is getting there.

Some Tips for Mediating….

A number of recent mediations have reaffirmed some essentials which I share here in the hope that they might be helpful to others:

It’s not all about the money. Mr A had a very substantial claim against a bank, of which he was a long-standing customer, running into hundreds of thousands of pounds Sterling, most of his life savings. When I asked him, early on, what he needed from the mediation day, he replied “I’d like them to apologise”. The bank’s advice was that it had done everything it could and that it had no legal liability. A familiar situation. However, the bank’s representatives found a way, authentically, to convey their deep regret that Mr A had experienced losses. They said they would do everything they could to ensure it would not happen again.

Mr A was very pleased with what was said. The matter settled for a modest sum overall. The Bank and Mr A conducted the final stage of the negotiations themselves, with support from advisers. Both parties left the mediation process satisfied with the outcome.

When wheels have come off, re-engage the key players. Day two of mediation was designed to build on day one several weeks earlier. However, the parties (employer and contractors in a large construction project) had not made the expected progress. In private initial meetings, one party expressed frustration and a feeling of lack of respect being shown by the other party – and a desire to conclude the process and proceed with litigation.

The engagement between the mediation days had been at a level below the key players. When the principals came together in a private meeting with me, they were able to hear from each other about their mutual frustration with what had happened. They agreed that they needed to oversee the process.

Much progress was then made in joint meetings in which the subordinates addressed the main issues under the watchful eye of the principals. The less senior people (including professional advisers) behaved in a different way with each other as they explored why they had not made progress, where the difficulties lay, and what needed to be done to make faster progress. The most senior people watched, asked questions, summarised, and provided guidance and leadership. The parties probably achieved more in half a day than for several months.

Get under the surface. In a long-running claim worth many tens of millions, the decision-makers appeared to have reached the end of the road. In an effort to find a way forward, we spent four hours going through my ‘Questions for a Difficult Meeting’ questionnaire. The parties prepared privately first and then, meeting together, they alternated in giving their responses.

The nature of the questions is such that they needed to dig deeper to look for answers. This opened up new levels of understanding about pressures, outside constituencies, alternative courses of action, changed realities and validation required for amounts sought. It led to a further discussion about possible settlement figures.

Ask questions. Similarly, in a difficult mediation involving two very senior directors in a company, impasse had been reached. Or so it seemed. But the more questions I asked, about their own ambitions, what others would say about them, how they might have contributed, what they might change or do themselves to make a difference, what questions they needed to ask, what pressures each was under, what they might be missing, and so on, the more they could see for themselves what needed to happen.

I am a great believer in party autonomy. Questions, used well, compel people to take responsibility.

Use a worked example. Many of us struggle with figures. Few of us really get to the bottom of what the numbers are telling us – or might tell us if we understood them. In a mediation involving a business partnership in which property was being divided up in a separation, the lawyers had spent several hours trying to explain what it all meant.

Eventually we got the flip chart sheets up and the parties themselves began to map it all out. It wasn’t easy as there were so many variables around land valuations, compulsory purchase possibilities and development proposals. And the taxation aspects were uncertain. However, for over an hour, we worked it through.

One of the parties was moved to say: “The figures are so much easier to understand than the lawyers’ words”!! Enough said. A satisfactory deal was done.

Encourage forward-looking momentum. When the going gets tough, maintain a process and be clear what that is – and try to ensure that the parties continue to commit to it. It has been said (by Deepak Malhotra in his excellent ‘Negotiating the Impossible’): “Stay at the table even after failed negotiations – if you are not at the table, you are on the menu”.

The job of the mediator is to (a) try to offer the best possible process for the circumstances; (b) keep in touch with and support parties even when there seems to be an impasse and (c) be prepared for a window of opportunity to open up, perhaps unexpectedly. Keep looking for it. In my experience, it often does. And we rediscover that most people, whoever they are, wish to resolve their disputes by agreement.

Provide food. Continuing with the idea of eating, it is encouraging to have endorsement of the value of bringing all the participants in a mediation together to share food. I do this whenever I can, with everyone meeting for breakfast after my initial private meetings. A buffet lunch can also be useful where people can choose to linger and chat if they wish.

I find it is useful to explain why I am doing this and I can now provide academic support that it works: see ‘Shared Plates, Shared Minds: Consuming From a Shared Plate Promotes Cooperation’ by Woolley and Fishbach, Association for Psychological Science 2019.

A similar point is made here about the important role of glucose levels in decision-making.

So that will be pizzas all round for the early evening final push for resolution! It is all food for thought…

NHS Highland Review

One of our mediators, John Sturrock, was commissioned by the Cabinet Secretary for Health in Scotland to carry out a review of allegations of bullying in NHS Highland.

John’s extensive report has now been published. It explores aspects of the human condition, together with modern approaches to leadership, changes in society, political conundrums and the provision of health care. He also mentions mediation and commends its much greater use!

Read the full report here

New Appointment for John Sturrock

News from Scotland that our colleague John Sturrock QC has been appointed by the Scottish Government to conduct a review into allegations of bullying at NHS Highland. This short life inquiry will continue alongside his mediation work in London, Edinburgh, Belfast, Dublin and internationally.

As well as his extensive commercial experience, John has worked at high levels on industrial and organisational management issues, in addition to his involvement in domestic and inter-governmental policy and political strategies.

On his NHS Highland appointment, John comments

These are difficult and sensitive issues. I know from my work as a mediator how important it is to listen to people’s concerns. My primary role, therefore, is to provide a safe and confidential place for people to be heard and to explore with them what the underlying issues might be

Read more here

Following the publication of the recent report on mediation in England and Wales by the CJC ADR Working Group chaired by Brick Court’s Bill Wood, John Sturrock has also taken on a similar role in Scotland where he has been appointed co-chair of a major review into mediation there.

John’s recent blog on the role of mediators in the political space here

CJC ADR Working Group Final Report

The ADR working group of the Civil Justice Council has published its final report.

Highlights include stopping short of recommending a ‘presumption’ that parties will agree to alternative dispute resolution as a condition for issuing proceedings (that is, no mandatory mediation) and setting up a Judicial/ADR liaison committee.

The Master of the Rolls, Sir Terence Etherton said ‘The working group is to be commended on producing an impressive report that proposes a number of reforms to the current system’.

Brick Court’s Bill Wood QC and Chair of the Working Group:

We have done our best to set out what seem to us the most promising options for the future. We are particularly pleased that our proposal for continuing liaison between judges and ADR professionals is already being acted upon by the Master of the Rolls

CJC ADR Working Group Report