Mediation Analysis of 2016


reviewI did an analysis of last year’s mediations recently. January is always a quiet month for me, so it justified my being in the office! It threw up some interesting statistics – well, interesting to me.

% Percentages….

The 2016 mediations covered eleven sectors (although some covered more than one) and 44% were construction; Professional Negligence and other Insurance being the next largest sector (20%). 77% of the construction cases settled but only 50% of the PI/Insurance. Best for settlement was Liquidations, Sports and Probate (all 100%) but together they only accounted for 12% of the mediations. Worst was a neighbour dispute (only one) which didn’t settle and so I scored a resounding 0% settlement.

Overall I had a 73% settlement rate, less than 2015 but still around the common wisdom of 70-80% settlement of commercial disputes nationally.

Total value of claims was £61,364,000 plus counterclaims of £13,963,000 but that is distorted by one claim being £48,754,000 plus £10,840,000 counterclaim.

In the end statistics are irrelevant. Settlement rates should be irrelevant. The mediator’s role is to give the parties the best chance of getting a deal. It is the parties responsibility to make the best of that opportunity. If they foul it up, that is their problem. If the mediator leaves a mediation being able to honestly say that s/he gave them the best opportunity, whether they settled or not, then it should be seen as a job well done.

We are in the business of making people’s lives better.

Mediator Training, Malaysia


I have just spent a week with the CIArb training commercial mediators in Malaysia.

4899917f-7d74-48d4-a796-1f547e8cd30f-originalThe CIArb Mediation Training Programme co-organised by the CIArb Malaysia Branch and the KLRCA (28th Nov – 4th Dec). Pictured here; Datuk Professor Sundra Rajoo, Director of KLRCA and President of CIArb with the faculty and candidates of 2016’s programme.

It was a great experience and I am always impressed by people being fluent in my language whereas I can speak none of theirs.

It was an intensive five days – I set off at 5am on Saturday and arrived their time at 11 am Sunday, going straight into a pre-course meeting. There is an eight hour time difference but that still meant 22 hours on a plane, taxi or airport lounge. The return journey started at 23.30 Friday and I arrived home around 15.00 on Saturday – so I missed the start of the England/Australia rugby test at Twickenham! We worked 08.30 to 18.00 each day, followed by a faculty meeting, so having a soak in a hot bath afterwards, followed by a Hendricks and tonic, was a (double) treat.

I had two inexperienced colleagues leading with me and four local shadow trainers, the intention being that they are eventually able to run their own course using local faculty, and there were twenty-one participants, mainly from Malaysia, some from Singapore and one from Hong Kong.

Unfortunately I saw nothing of Malaysia, except from the taxi drive to and from the airport and one visit to a Chinese restaurant. Otherwise, with the hotel being opposite the KLRCA building, I just saw a dual carriageway full of cars and motor bikes daring me to cross the road. However, I did experience some of the local food and realised that eating is a major part of Malaysian life. There was food at the venue to greet participants, food at coffee and tea breaks and at least four dishes to choose from at lunchtime. Not a time to think about my expanding waistline!

The course made me realise how much I miss training mediators. In Malaysia, which hasn’t really adopted mediation enthusiastically  (yet), it was like the pioneering days of the 1990’s in the UK. Seeing lights of understanding being switched on in people is a real privilege and makes all the travel and missing home worthwhile. The CIArb use a DVD of a case study, mediated by me, which participants must watch before coming on the course. This saves time on the first day by replacing what used to be a demonstration case study. But the eerie thing was that all the participants greeted me as if they already knew me, and in some cases they had watched the DVD so often that I was watching Richbell clones mediating the case studies! Poor souls!

David Richbell

Further Advanced Mediator Training


The Further Advanced Mediator course that we ran in Italy 11-16 September was a huge success. Mind you, given the beautiful surroundings of the Abbazia San Pietro and the restaurant attached to it (one of the top two in Umbria) it couldn’t really fail.

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We had nineteen experienced commercial mediators from five jurisdictions, plus the four faculty (Joanna Kalowski from Australia and Heather Allen, Lawrence Kershen and me from the UK). It was a great group in a great place and the feedback was fantastic:

“Congratulations for a wonderful event in the Abazzia. One of the rare events that could not be improved upon in any way. Not much encouragement needed to draw me back again”.

“Thank you for running such an interesting, challenging and enjoyable course. Framed by an incomparable setting but made by the people. I hope you can be persuaded to run it again”

“I think what struck me was the breadth of what we covered – practical skills, philosophical debate and scientific frameworks”.

We hope to run the course once more, in 2018 (probably 23-28th September) and provisional bookings are already being taken!

Trust, Truth, Love and Forgiveness…


(or rather Greed, Lies, Hatred and Revenge)

Trust

…I am focusing on the parties. Almost all the disputes we mediate involve broken trust, or at least the perception of broken trust, and that fuels suspicion, expecting the worst of the offending party which, as a consequence, makes co-operating to achieve the best outcome much more difficult.

Our capacity to trust is precious. It profoundly matters when it is broken because it is the foundation of a functioning personality. It is also the bedrock of a healthy society. Broken trust is offensive, it is a personal affront and creates a lot of hurt. Re-building it is a long, careful and fragile process and it won’t happen over the limited time of a mediation. The best we mediators can expect is that a few building blocks are created as we help mend fractured communication and rebuild broken relationships. These building blocks can start with the first open session, as parties come face-to-face and have the opportunity to uncover the reasons for the trust being lost and the motivation of the offending party. It is an opportunity for assumptions to be tested and other truths to be recognised.

Trust relies on the truth and it is important for the mediator to give time to exploring why parties see facts and events differently and why their truths differ. The skills are basic. Helping each party to listen to the other’s story, recognising why the stories are different and encouraging them to value the other’s story as being real (the ‘truth’) to them, reduces suspicion and makes space for acceptance and understanding. Trust may not be rebuilt, but acceptance and understanding are good steps towards it.

Read more….part 3, chp 4, p365, How to Master Commercial Mediation, Bloomsbury 2015

Advanced Mediator Training


A year ago I sent an invitation to mediators who had been on the MATA Advanced Mediator Retreat, which we ran for ten years up to 2010, to come on a further advanced course at the same venue,

San Pietro in Valle in Umbria.

sanpietro

We now have a full course of nineteen participants and four faculty (below..

Joanna Kalowski from Australia,
mediator, facilitator and judicial educator, and .. director of Joanna Kalowski and Associates, a management consultancy specialising in dispute resolution, cross-cultural communication and organisational development.  She has worked for over twenty years in Australia and New Zealand, as well as in Singapore, Thailand, Hong Kong and India. Over the last seven years, Joanna has also run workshops in Italy, Germany, England, Denmark, Spain, Switzerland and France, including a three-day summer school for the Centre de Mediation de Paris (CMAP) in 2005, conducted in French on Majorca.
Lawrence Kershen QC, 
Lawrence now works exclusively in mediation and ADR, and in training others in mediation and negotiation skills. He has been actively involved in the development of Restorative Justice in the UK, both in the criminal field and in schools and organisations. From 2003-12 Lawrence was a Board member and latterly Chair of the Restorative Justice Council, and is trained as a restorative facilitator. To support the international work of Search for Common Ground in conflict transformation and peace-building he helped establish Search for Common Ground in the UK in 2007. He was its Chair until 2012 and remains a Board member. In 2007 he was honoured to be appointed Chief Pa Kumrabai of Yoni Bana Chiefdom in Sierra Leone. He is a certified trainer of Neuro-Linguistic Programming and is also accredited as a trainer of Nonviolent Communication, the work of Dr Marshall Rosenberg. 
 Heather Allen. 
Heather is well known as a mediator trainer and coach and is the Head of CEDR Faculty. She works internationally, training and assessing mediators, and also working with experienced mediators on training and facilitation skills so that they can in turn provide training for local professionals. Her experience of working in different traditional social contexts, including in predominantly Muslim societies, adds a useful dimension to her mediation practice.
She also acts as a supervisor for experienced mediators and provides post-accreditation and advanced development for practicing mediators.
In addition to her training activities Heather also works regularly with the judiciary and other professionals in developing the wider use of mediation. She has worked as a consultant with jurisdictions abroad, such as Morocco, that are introducing mediation as part of their civil justice system.

..and me).

All participants are experienced mediators and the course is structured around the inner and outer mediator, trying to push the boundaries for both participants and faculty. We have participants from Australia, Kenya, Pakistan and France as well as the UK.

The venue (www.sanpietroinvalle.it) is breathtaking. It is a converted Abbey and we have sole use. We will work in the vaulted apothecary but most of the time we will be working in the gardens or the cloisters.

IMG_4707-750x450

This was meant to be a one-off course but many, who cannot make 2016, have asked if we could run it again in 2017. Watch this space!

The important of negotiation skills


Chartered Institute of Arbitrators

Chartered Institute of Arbitrators

Published in the latest issue of the CIArb e-solver:

David Richbell FCIArb

David Richbell FCIArb

Shaping the deal

Parties need deals with dignity, where they leave the negotiation with heads high and believing they have worked hard to get the best deal.

Mediation is an assisted negotiation, so negotiation skills are vital for an effective commercial mediator. In fact, one could argue that it should be one of the key competencies for assessing newly-trained mediators.

Not only is it important for the mediator to understand negotiation tactics (and sometimes how to counter them) but it is also a key skill to know when to give information, when to hold it and when to re-frame it. So the mediator can have a huge influence in when a negotiation starts, how it develops and how it ends.

Some mediators head straight for the figures in a commercial mediation. Indeed, some lawyers suggest that all the ‘touchy-feely’ stuff is dispensed with and figures are tabled at the start. (Incidentally, ‘touchy-feely’ is now called ‘emotional intelligence’ which is slightly less insulting to us tactile human beings). In general, I try to put off going to figures until the shape of the deal is known. If a party sees their needs being met in the emerging deal, they are far more likely to pitch figures in the reasonable zone.

Pepperdine University has developed an analysis of negotiation styles and produced a chart which categorises offers in negotiation zones as:

  • ‘insult’ – where offers are derisory and calculated to encourage a walk-out
  • ‘extreme’ – which is not much better than the insult zone but less likely to cause a walk-out
  • ‘credible’ – sending a message that you are going to have to work very hard to get a deal but we are here to do a deal
  • ‘reasonable’ – the ZOPA (zone of probable agreement) where the offer encourages co-operative participation in the negotiation. Shared problem, shared solution.

The mediator’s aim must be to get first offers pitched in the reasonable zone, or failing that, at least in the credible zone. Outside that and there are problems!

So I try to delay offers until parties see the deal shaping up, see their needs being met and the chance of their misery ending. Then they are likely to pitch offers in the reasonable zone because they do not want to lose the change of a deal to which they can say ‘yes’.

Of course, some people are poor negotiators. Usually they don’t realise it and often consider that they are really good. Many times I have been tempted to give them my business card and say ‘I run a really good negotiation course … you should be on it!’ There is no doubt in my mind that the best deals arise from parties co-operating, but I accept that it can be counter intuitive to the more natural Western style of negotiation, which is adversarial and based upon a ‘winner’ and a ‘loser’. In my view two of the worst cases of inappropriate negotiation tactics are:

  • Salami-slicing (or peeling the onion) – offering little and slowly. This is most likely if the mediator goes to the figures too early and is based on the premise that the more extreme you start the better chance there is of getting a ‘win’. Of course the other side are likely to reciprocate, so the negotiations start at the extreme and grindingly head towards the middle. In such cases parties often say, when faced with the reality of having to make a deal in the reasonable zone (which is rarely in the middle) ‘we’ve moved far more than the other side’. My reaction is not to say ‘but you started in a much more inflated position’ (tempting though that may be!). Instead, my reaction is to say ‘it’s not where you start but where you end that is important’.
  • First/last offer – where a party tables a figure with the message ‘you know this is reasonable so just accept it and we can all go home’. No matter how reasonable the offer may be, parties will still feel that they have been deprived of a negotiation and that the other side are bullying them into a deal. Parties need deals with dignity, where they leave the negotiation with heads high and believing they have worked hard to get the best deal.

So, in conclusion: establish the parties needs first, shape the deal around them, and then go to the figures (and other detail) when the shape is known.

Be an effective Commercial Mediator


There are essential skills needed to be an effective commercial (or any) mediator. Some skills are natural, instinctive and can be highlighted and polished. Others can be learnt. The result will be people who have a potent force for settling disputes and even for reconciliation – and the world needs lots of such people!

An effective mediator must be a good:

  • Manager – orchestrating the day in the most efficient and effective way, helping the parties make the best of the opportunity and getting the best deal as a result;

the mediator needs to be seen to be ‘in control’, a firm manager of the process; a safe pair of hands who will deal with sensitive issues; efficient; purposeful; even-handed, independent; constantly optimistic; energetic..

  • Communicator – bringing clarity to an often confused and deadlocked situation and helping parties to speak with each other in a safe and nonthreatening environment;

The style and method of questioning, the ability to challenge without appearing to be partial, of being deeply interested without being inquisitorial, and of re framing negative or adversarial statements into positive, more conciliatory words, can be a key to helping the parties to move on.

  • Negotiator – Using the information provided in the best and most positive way and helping parties to shape and settle the best deal possible that is realistic and that will stick;

The mediator is in an incredibly powerful position in a mediation. They are likely to know more about each party’s true position – their underlying interests and needs – than either party and so have insights into how to influence the process to obtain the best deal for everyone.

  • ‘friend’ – building relationships of trust with the parties and their advisers through giving time, carefully listening to their story and understanding their emotions, so that they will share sensitive information and know that it will not be used to their disadvantage.

the mediator is a ‘friend’ to all. Rapport can be built in different ways, but the purpose must always be to create a relationship of trust and respect.

Mediator Bias


We mediators assume that we are impartial and therefore free from bias. But we are formed by our lifetime experience which means that we have many conscious (and unconscious) biases, influenced by our culture, gender, political and religious beliefs, relationships, training, emotions and feelings..

 

There is a paper in “How to master Commercial Mediation” on Mediator Bias. Paul Gibson, an Australian mediator, wrote it and he will be leading a session on it at the

Further Advanced Mediator course in Italy (11-16 September).

paul_small

It is a fascinating subject, not least because we mediators assume that we are impartial and therefore free from bias. But we are formed by our lifetime experience which means that we have many conscious (and unconscious) biases, influenced by our culture, gender, political and religious beliefs, relationships, training, emotions and feelings (to name but a few!). So we need to be aware of them and compensate as necessary.

How do you do that? By getting honest feedback from colleagues and family (and mediation users). Even better if you are a mediator and can get a fellow mediator to do a peer review. Feedback will raise awareness and, hopefully recognition and acceptance. Once that happens, strategies for compensating the less acceptable biases can be developed.

Paul ends by saying

“What parties don’t want is the unintended consequences of mediator bias. The responsibility rests squarely with the mediator irrespective of the mediation methodology applied. As mediators, our professional reputations depend on this”.

(Dr_Pau_R_Gibson_Profile_(Gibson_ADR_2014)_, Chp 5)

SSSShhh…….


Silence is a very powerful tool for the mediator. It is, perhaps, difficult to use……but real gems can result if the mediator has the confidence to wait. People feel the need to fill the silence and will often say something that is quite revealing because it has not been rehearsed. Not least when they have just been very emotional.

Taken from How to Master Commercial Mediation (Chp2, pg15)

“Incontrovertibly the most important book on mediation published in English in recent years (possibly EVER?)” Hew Dundas, Former President of the Chartered Institute of Arbitrators

A route map to a deal – Settlement at Mediation


I did a mediation last week that settled by 2.30 pm! It was quite a significant claim and counterclaim but both parties were up for it and were sensible in their negotiations.

Of course this is unusual – the time, I mean, not sensible negotiations! Long gone are the days when it was considered to be ‘manly’ to be mediating in the early hours of the morning.

Most of my mediations do not finish in normal working hours – in fact I say at the start, after checking if anyone has any time constraints, “I’m here as long as you want me but I’m on overtime from 6pm. It’s amazing how that seems to focus the mind!

On rare occasions I might even say “Ok, so let’s assume you are signing a settlement agreement at 6pm, you need to be shaking hands at 4pm which means you need to be in serious negotiations by 2pm. So you have from now until 2pm too get all the detail/rubbish out of the way”.

the art of negotiating

Some people like a route map to a deal and on more than one occasion a party has said “it’s 2pm – we should be in serious negotiations!!”. And they started to negotiate seriously!