A Baptism of Fire

Returning to London for a series of mediations this spring my cure for  jet-lag is a one-day Civil Justice Council workshop on the role of ADR in the civil justice system.

90 people packed into the ballroom of a central London hotel: High Court Judges, District Judges, Employment Judges, solicitors, barristers, arbitrators, mediators, the voluntary sector, civil servants from the Ministry of Justice and Her Majesty’s Court Service. As well – a sign of the times, various providers of dispute resolution software.

Chaired by Brick Court’s Bill Wood QC there were no speeches, no talking heads and no power points. Just fast moving discussion;

Why hasn’t the ADR message got through to the public? Are the existing prompts in the system working? If ADR can help parties without representation how is that to be funded and provided? Has ADR been treated as being limited to mediation for too long? Is some form of compulsion or automatic referral to ADR inescapable? If you have to provide at least some opt-outs does that inevitably bog the system down in satellite arguments? How big are the political obstacles in the path of radical reform? Will online access to the Court make all of these questions obsolete or raise new challenges? And what does the overseas experience tell us?

None of us envied the six members of the working group who now have to pick the bones out of it all and write a final report!

Read the CJC ADR Working Group’s Interim Report

Mediation: a cricketing metaphor

Recently, I was ruminating about analogies between cricket and mediation. Cricket is a much-loved sport in Scotland. Sadly, nowadays, changes in the climate mean that cricket in my home country is more often affected by summer rain and damp conditions than a generation ago. Its future is less certain as a result.

I have always been a cricket fan. Ever since England played the West Indies in 1969, and the great Gary Sobers was still in his prime. When I was in my early teens, I was coached by a kind, talented West Indian professional called Noel Robinson. He played a few seasons for my home cricket club, Stirling County. I learned to bat properly. My cover drive had such a flourish that, in my first year at university, I was selected high up the batting order for the first XI after impressing at practice in the nets. It did not take long, however, for my fear of really fast bowling to be exposed. The 2nd XI soon beckoned.

But it was in defensive play that I excelled, both on the front foot and the back. I practised for hours. I could bat for ages. My schoolmates would be frustrated as I ground away in those 20 over games, collecting singles and accumulating runs at a snail’s pace. 39 not out seemed to be my badge of honour. That England legend, Geoffrey Boycott, famed for persevering at the crease, was my role model.

Unlike many sports, for an individual batsman one mistake is all it takes to end participation in the game. A mistake that may result from a moment’s inattention. Or a rush of blood to the head. A split second of indecision. A distracting thought. Conversely, sharpened focus, a micro-second’s pause, a determination not to let the overall circumstances get in the way of giving complete attention to the next moment, blotting out an earlier near miss – all these promote longevity and continuation in the game.

For a batsman, stroke selection at the critical moment is what it is all about. I recall hearing that the distinction between an average opening batsman (the example given was one Nick Compton, who never quite established himself as an England player) and Alastair Cook (the most successful opener of all time for England) is a tiny fraction of a second. Cook takes that little bit longer before committing himself to his stroke. He takes just a little more time to process, sub-consciously, the bowler’s action. That makes all the difference. How much of that is practice, how much is intuition and how much is personality, I don’t know. But this does makes you think.

In mediation, we operate with a mixture of spontaneity, flair, caution and discernment. Often, how we react in the moment makes all the difference. We need to be able to take risks sometimes, or we’d never move the process on. On the other hand, over-playing our own role, letting the ego prevail, can be fatal. It’s such a question of balance. Usually, of course, our errors are not decisive. The ball metaphorically drifts past the wicket into the safe hands of the wicket-keeper without snicking the bat or striking a wicket. It can be touch and go at times. We are all human, error prone.

What then sets apart a really effective mediator from the average? For me, it has to include an ability to focus on the process regardless of the outcome, an ability to operate with consummate skill in the moment, knowing that, paradoxically, this will enhance the prospect of a successful result. It has to include a willingness to practice skills, never assuming mastery, with humility about the reality of our role and its importance. I would add awareness of one’s own personality and psychology, and of those triggers which might set off a chain of events leading to unhelpful loss of confidence during mediation. It’s about standing back, surveying the field, viewing where the mediation players have positioned themselves, trying to work out where the opportunities lie for getting past unhelpful defences, picking the moment to drive towards a breakthrough.

And being brave enough to allow that extra momentary, fractional pause. A little more time before responding, a little more time to elicit – and hear – an answer and to process the real meaning. Concentration, even when tired at the end of a long day (remember that Alastair Cook once batted for 836 minutes in a crucial match, albeit over two days). An ability to stay engaged, raising your performance when all seems lost and, as with so many of the best sportspeople, seeing unexpected things in one’s peripheral vision that others would often miss.

A few seasons ago, my Scottish mediation business, Core Solutions, sponsored the Scotland cricket team. Our billboard carried the eye-catching slogan: “Mediation – There Are No Boundaries”. That nicely summed up our adventurous hopes for what we were doing. Mature reflection might suggest that recognition of boundaries is actually necessary too. In cricket, a draw is often seen as an unsatisfactory outcome for both sides, but it can also represent a realistic equilibrium when two well-matched sides have done their best.

In mediation, a negotiated agreement may also seem unsatisfactory if your objective has been victory. However, as we know so well, the optimum result in mediation may be both parties leaving with a sense of dissatisfaction – but knowing that, with this match finally over, a whole new game can start the following day, on a new wicket with fresh opportunity and renewed optimism.

What The Directories Say…

BRICK COURT CHAMBERS boasts the leading mediation offering at the UK Bar, achieving several nominations this year including three of our most highly regarded practitioners.

William Wood QC is “totally stunning in every respect” according to peers, who consider him “the best international mediator out there”. They praise his “beautifully light touch” and “would put him top of the list”
Whos Who Legal UK Bar: Mediation 2018

Stephen Ruttle QC is “highly regarded” for his vast experience handling high-value mediation proceedings and continues to impress market sources who describe him as “absolutely outstanding” and “the best there is”
Whos Who Legal UK Bar: Mediation 2018

John Sturrock QC is “utterly brilliant” when it comes to dealing with multi-party commercial mediations, “he absolutely knew what we were after” “and gave fantastic support and advice.” He is highlighted by one impressed source for his “lovely sense of humour”.
Whos Who Legal UK Bar: Mediation 2018/Chambers and Partners 2018

Tony Willis stands out as “one of the grandfathers of mediation” who enjoys “a phenomenal reputation” among peers and clients alike. One respondent effuses: “He always finds a way to get to grips with the dispute and effectively guide the proceedings”
Whos Who Legal UK Bar: Mediation 2018

Geoff Sharp mediates high-end commercial disputes including significant national cases. He receives plaudits from peers, one of whom says “He is a mediation megastar. Geoff is hugely experienced and brings years of knowledge to each mediation.”
Whos Who Legal Mediation 2017

Phexit: A Beginner’s Guide

Watch out all London insurance dispute specialists! It turns out it is not only the financiers of Dublin. Frankfurt and Paris who are relishing current opportunities.

When the American Bar Association’s Insurance Litigation Section meets in Tucson Arizona on 1st March delegates will be offered a number of fascinating break-out discussions (including one on timely notification of claims with the irresistible title It’s Too Late Baby, Now It’s Too Late).

But the eye-catcher is this one scheduled for 12.05pm:

Breakout: “PHEXIT”: Why Policyholders May Pull Out of Britain and Why London May Be at Risk of Losing Its Grip on Insurance Coverage Arbitrations

Phexit. You heard it here first.

Better Conversations Bus Tour

Collaborative Scotland recently organised a series of public events and business breakfasts in the north-west of Scotland as part of its Better Conversations Bus Tour.

Collaborative Scotland is led by Brick Court’s John Sturrock QC.

The tour facilitated a series of free open meetings and workshops in partnership with some of the region’s most prominent civic organisations, including the University of the Highlands and Islands, the North Highlands Initiative, Highlands and Islands Enterprise, Crown Estate Scotland and North Coast 500.

Events along the way enabled constructive dialogue that encouraged people to consider what vision they have for their community and the country as a whole. Public meetings focussed on Brexit and Other Challenges” and asked What sort of community do we want to be?” It also offered meetings for local businesses to consider how to reduce unhelpful disputes and have more effective business arrangements, and for school pupils to learn about respectful dialogue.

John comments:

Over the past few years, I’ve had the privilege of leading Collaborative Scotland and encouraging respectful dialogue on constitutional issues and the future of the country.

So often communities, especially those in rural areas, can face divisions about their future direction – often in response to developments like wind farms, proposed land reform, new initiatives and losses anticipated from Brexit. Those issues can become polarising and adversarial. Yet in my role as a professional mediator I’ve seen so often how much benefit there is when people are able to sit down and talk constructively about important issues, especially where they might have different perspectives, and when they can really begin to understand each other’s viewpoints. Time and again they go on to explore ways to move forward and find common ground that improves the situation for everyone.

We realise that there is so much to be gained, in personal, local and business relationships, when folk find common ground. Our bus tour will explore how local communities and businesses in areas of Scotland, that face unique socio-economic challenges and opportunities, can achieve even more by working together.

We’ll ask questions like: “What vision do we have for our community? And for our country? What matters most to us? What concerns us?” We’ll be promoting Collaborative Scotland’s Commitment to Respectful Dialogue as we go.

Milestone Civil Justice Council Report Out for Comment

An expert working group of the Civil Justice Council has published a comprehensive interim report on the role of ADR in civil justice in England and Wales.

The CJC is now seeking written submissions and recommendations of the report, ahead of organising a seminar at which the proposals can be discussed and a final report prepared and submitted to the Government.

Chairman of the CJC Working Group is Brick Court’s Bill Wood QC

ADR has failed to achieve the integral position in the civil justice system that was intended and expected for it at the time of Woolf. The CJC assembled this Working Group (including representatives of the Bench, the professions, the ADR community and an academic) to try to understand the reasons for failure and to suggest some possible solutions.

Our aim is to stimulate a debate between all stake-holders as to the nature of the problem and the possible practical solutions, including the thorny issue of mandatory mediation. With the Online Court in development and pilot local mediation schemes up and running in a number of centres, this is an exciting time. The Report does not try to be utterly comprehensive nor does it purport to have all the answers but we hope it can make a contribution, and that in due course a final report can set out a widely-supported basis for moving forward.

Chairman of the CJC, Sir Terence Etherton, the Master of the Rolls

ADR is a very effective means of resolving civil disputes quickly and cheaply. This report explores the current use of ADR and the reasons why it is not used more frequently. As we prepare to enter a digital age of dispute resolution it is an ideal time to look in detail at how the potential for ADR can be maximized.

Read the full report

Written submissions by Friday 15 December 2017 to civiljusticecouncil@judiciary.gsi.gov.uk.

In other BC news, Bill Wood has recently been reappointed to the Civil Justice Council until 2020.

In Defence of (Defensive) Mediators

Ask most mediators of a certain stripe and they will be only too willing to tell you the story of long ago when they left their law firm or maybe even chambers to become a mediator…. that giant leap of faith, that alarming drop in revenue.

Some will have run away from practice only to later stumble over mediation. Others will have run, arms outstretched in an embrace, towards mediation. And it usually shows in the sort of mediator they become in the years that follow.

But all mediators of this genre have a certain sensitivity in common.

So it was well into the afternoon of a mediation this past week, one of the lawyers who I had last seen when I was at my firm in the 1990’s said to me; ‘So Geoff, when did you give up real law?’

At this point, two answers are possible.

One for a valued and hopefully future consumer of my mediation services; ‘Ha! Spot on Brian – I haven’t opened a law book since 1998’.

But it was the other, giving life to that sensitivity all these years later, that sprang from my lips;

Well, you know Brian, there’s a lot of paddling under the water for us mediators. I have to be able to understand, very quickly, how you twist your square causation argument into the round hole of the law – and test you on it without, of course, putting you on the spot.

Before I can do that though, I need to actually know the law and have a good eye for legal BS so I can ask you, in the nicest possible way, to explain it to me again so others at the table just might pick up the soft spots I got, but they missed, on your first run through.

Sorry Brian, but it felt good.

Brick Court in the Pacific

Brick Court mediator, Geoff Sharp, has been teaching mediation at the University of the South Pacific in the Cook Islands this week courtesy of Cook Islands Law Society, New Zealand Law Society and Massey University.

The course was held at the USP campus on the island of Rarotonga in the Southern Group of 15 tiny islands that make up the Cooks. The resident population of all islands in the group is estimated to be between 11,000 and 12,000, almost all Cook Islands Maori.

By the way, the Cook Islands is one of the few countries in the world to ask a question about coconut consumption as a part of its census – and it was revealed in 2017 that 2,947 households use 28,461 coconuts every week. That’s 10 coconuts per home per week!

In some ways teaching mediation anywhere in the Pacific is taking coals to Newcastle, there being a strong tradition of conflict resolution by mediation within Pacifika social order – in particular in the many villages dotted throughout the islands, often remote from any formal system of justice.

But the modern form, especially for civil disputes – which are mainly land issues – has been eagerly awaited. It won’t be long before mediation is mainstream in the Cooks and it will be very colourful with plenty of food, prayer and maybe even song integrated into the process.

Thanks go to other faculty members, Prof Laurence Boulle, Virginia Goldblatt (co authors of Mediation: Skills and Strategies) and Dick Edwards of NZLS CLE who made it all happen.

John Sturrock Features In The Times

In these turbulent times, some might be interested in John’s article published in The Times newspaper yesterday…

Sophisticated Mediation Advocacy : “Out Loud Adverse Advice”

When I am mediating I often encourage counsel ‘to be brave’.

Easier said than done I know, but bravery can take many forms in mediation.

From counsel backing their own advice when the easier road would be to settle – to something a little more counter intuitive and possibly risky – like strategically signaling vulnerability at the table, often achieved by counsel giving the client out loud adverse advice during a joint session.

Yeah, opposite counsel may be right I guess – we will struggle if that’s the way the judge approaches liability on this aspect – and by the way, we are the wrong side of 60/40 odds. But once/if we get through that, quantum is downhill with a minimum of 1m and on a good day 1.95m – their risk that we get to try quantum is unacceptable and (as counsel turns back across the table) we know you can’t live with that for 15 months until trial

What’s going on here?

Well, good mediation advocates know they don’t have to prove their position is the correct one – their task is fundamentally different at mediation – instead they are asking themselves what can I do to move this case towards settlement?

I have heard it said that all you need to bring to mediation is a big stick – errant nonsense of course and ironically, I have seen some very small sticks, aimed very carefully, obliterate their target.

So, good advocates don’t waste energy debating the legals up hill and down dale – rather, just enough back and forth to condition the debate and create doubt (and therefore risk) for the other side – and if they’re really, really good, by using front-foot concepts like preemptive disclosure and inoculation.

Inoculation is an especially intriguing notion and again belongs to next level of mediation advocacy but, other than what appears below, will have to wait for a future post.

Good counsel reason that voluntary disclosure of negative information removes the sting of negativity and divests the other side of the opportunity to expose and capitalise on it.

I delight in seeing brave mediation advocates making carefully considered concessions on points that do not directly undermine their ultimate goal –  which, in the right hands, is an extremely effective mediation posture. And that’s not to say they would do the same thing at trial – that’s the point, mediation advocacy is so very different.

But great caution is needed – there is an art to this high-wire act and it’s best to read this before you try it at the table; Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (Prof Kathryn Stanchi, Temple University – James E. Beasley School of Law).

… it is not surprising that there is considerable controversy among both appellate practitioners and trial lawyers regarding when and how to address information that potentially undermines the position they are advocating. The vehemence of the disagreement among lawyers about the appropriate strategy, as well as the pain of the dilemma, is a testament to the high stakes of the question.

The theory of inoculation is based on the idea that advocates can make the recipient of a persuasive message “resistant” to opposing arguments, much like a vaccination makes a patient resistant to disease… inoculation studies show that raising and refuting adverse information works better than a wholly positive message to insulate message recipients from later attacks on the message… the theory is that introducing a “small dose” of a message contrary to the persuader’s position makes the message recipient immune to attacks from the opposing side.

The key to inoculation is the warning of the impending attack, or “threat”, combined with the refutation of the attack. Refutation alone is not sufficient to produce the inoculation response. The two components work in tandem – for the inoculation response to occur, challenges must be explicitly raised and then answered.

Remember you heard it here at BCC first: “out loud adverse advice”

Read the full article in which Prof Stanchi explains a range of fascinating concepts like bad law, bad facts, stealing thunder, preemptive disclosure and inoculation theory – all useful to the advanced mediation advocate.