Event for Faithful Peacemakers


BIMA Breakfast for Faithful Peacemakers

This event is open to all, but aimed at mediators who are interested in faith and conflict

 DATE: Wednesday 12th April 2017                TIME: 08.30 – 10.00am

VENUE: International Dispute Resolution Centre, 70 Fleet St, London EC4Y 1EU

TOPIC: “Bridging Extreme Differences in Ireland”

SPEAKER: Geoffrey Corry

RSVP: 6 April 2017

 geoffrey corryGeoffrey is a Mediator based in Dublin and was involved in the peace negotiations. He knew Martin McGuinness and witnessed the transformation from being a man of violence to peacemaker. We will have an opportunity to explore the potential for sustainable reconciliation in the complex contexts of cultural identity, religious belief, chronic bereavement, conflict and mistrust.

 

Cost: Free – Breakfast will cost £8.00*

*Breakfast is free for BIMA’s full members

Please let David Richbell know if you are coming and if you would like breakfast (david@richbell.org)

Office: BIMA | The Base, Dartford Business Park | Victoria Road, Dartford, DA1 5FS, Kent Telephone: 01322 314 820 | Email: info@bimagroup.org

Website: www.bimagroup.org

BIMA Breakfast 8th February 2017


bima

Open to all, but aimed at mediators who are interested in faith and conflict
DATE: Wednesday 8th February 2017 TIME: 08.30 – 10.00am
VENUE: International Dispute Resolution Centre (Canteen),
70 Fleet St, London EC4Y 1EU
FACILITATOR: Stephen Hall Endesek Limited

Drawing upon his experiences in the Middle East, Stephen Hall will facilitate a session on  “Building Dialogue in the absence of the Rule of Law”

Cost: Free – Breakfast will cost £8.00*
*Breakfast is free for BIMA’s full members
Please let David Richbell know if you are coming and if you
would like breakfast (david@richbell.org)
Office: BIMA | The Base, Dartford Business Park | Victoria Road, Dartford, DA1 5FS, Kent

In conflict situations, parties may be influenced by their religious or cultural beliefs.

BIMA is a registered charity which raises awareness of the need and value of dialogue between individuals or groups who may hold extremely different views or beliefs.

Our peculiar public awareness events provide the conducive platform for constructive debates, and exchange of ideas or best practices in conflict resolution, community cohesion and peace building.

All Parliamentary Party Group on ADR


Last month I attended the All Parliamentary Party Group on ADR at the House of Commons. Several of us (eight in all) were giving a presentation to MP’s about the use and value of mediation in various sectors (environment, faith, commercial, community, schools, international, family and restorative justice).

These meetings are a regular occurrence and are organised by the Chartered Institute of Arbitrators. The idea is great and it is lovely to think that mediation could be of interest to our MP’s, especially with the Brexit negotiations. If ever there was a situation that cried out for co-operative problem-solving it is our negotiations with the European Union where it is in everyone’s interest to get the BEST deal both for the UK AND Europe.

Unfortunately only three MP’s turned up (plus the Chair) for the APPG on ADR. I felt both disappointed and cross, that the eight of us had prepared and delivered something that should be seen as of real benefit, yet only three considered it to be worth two hours of their time. Yet another barrier of ignorance.

 

The Impact of the EU Mediation Directive 2008 & the effect that Brexit has had on English Mediation Practice


An interview conducted by Giovanni de Berti with David Richbell.

gdb-foto

Q: Mediation has existed in Britain from many years. Laws and courts began to take notice of it since the early nineties. What was the impact of the EU Mediation Directive of 2008? Had English mediation law and practice to be accommodated, was it and how?

A: Commercial mediation in the UK really started, although very slowly, in the early 1990’s but really became taken seriously after the Woolf reforms in 1999. Those reforms meant that ADR (usually mediation) had to be considered by the parties, so it became an established, and serious, process which lawyers had to consider and recommend. In the years since then it has become expected (although it is not mandatory) that parties enter mediation before trial.

The EU Directive therefore came at a time when mediation had been long established in the UK, so it had no real impact. In fact I believe several UK mediators used their experience in helping to draft the Directive (or at least removing some of the more unrealistic parts).

Q: Did the EU Directive have positive, negative or no effects on the mediation practice, domestic or international, of English mediators?

A: The only changes in the UK were to allow limitation periods to be suspended during a mediation, to create settlement enforcement orders (which I believe has never been used) and to adopt a (rather odd) rule about admitting confidential mediation evidence at trials. So it had very little effect other than to ratify what we were already doing.

Q: Has Brexit had already some effect on English mediation practice, domestic or international?

A: Brexit has had no identifiable effect on mediation practice in the UK, other than the fact that most of us are still in a state of shock. However, being an optimist, I see this as a real opportunity for mediation skills to be used in creative ways.

Q: Do you think / hope / fear it will have in future?

A: I have a strong belief that Brexit has provided us with an opportunity to change how we debate, both in parliament and in general. I have been involved in facilitating conversations on human sexuality in the church and it has changed the way that issues are debated and decisions made. In the past the General Synod has operated in the same way as our parliament – debating issues in a binary (for/against) way. We facilitated discussions that increased understanding and acceptance of differences and led to co-operation in decision-making.

Some time soon the British parliament will be leaving the Houses of Parliament to enable substantial renovation of the buildings. It is an opportunity for debates to be less adversarial and more like the church facilitated conversations, if only because the debating chamber does not have to have seating that faces each party and creates a divide. It is a great opportunity and we shall see if the MP’s are wise enough to grasp it.

The Brexit debate in the UK showed MP’s at their very worst. The public generally were disgusted at the awful level of debate and the lack of real information. Many voted in protest at the level to which our MP’s had descended, rather than against being part of the EU (although the level of debate in the European Parliament has not always been considered to be great either).

The Brexit negotiations should be mediated. They desperately need a co-operative approach. Unfortunately, they have already become adversarial even before the formal process has started. I despair!

Q: In your opinion, should English mediation law or practice change because of Brexit and how?

A: I don’t see how Brexit will affect the mediation world. I can’t see Parliament finding time for a Mediation Bill and there is not much support for compulsory mediation (although some out-of-work mediators do like the idea!).

Q: Is the position in Scotland different? Which impact would have Brexit on Scottish mediation practice?

A: At the moment the position in Scotland is no different to the rest of the UK. Although Scotland has its own laws, and mediation is not so common, the impact is similar. However, Scotland voted overwhelmingly to stay in the EU and Brexit appears to have strengthened the Nationalist case for independence. So who knows what will happen in the future? There is undoubtedly the need for mediation skills, but will they use them?

 

 

A Debate about the Opening Session


At the recent Mediator Breakfast in London speaker, Jay Welsh of JAMS, caused quite a stir when he said that around 80% of their American mediators (almost all former judges and certainly all lawyer mediators) don’t have an opening session! Those of us who see this session as being a vital part of the mediation process, allowing parties to tell their story and also to hear the other side’s lawyer (and expert) give their alternative view of the relevant law (and expertise), see this as an awful undermining of one of the core principles of successful commercial mediation. Obviously there are times when having everyone together at the start is not appropriate, but in my opinion, this should always be the last resort, the mediator having established the reasons and explained the advantages.

One other statistic I understand Jay Welch quoted of the JAMS mediators was that 75% would normally express an opinion on the merits, outcome and appropriate settlement. Of course, this is always a danger with judge mediators but where did the “party-centred process” go and become a “mediator-centred process” take over? And what about the parties being in control, their problem, their outcome? Can this really be mediation? Or is it just a quick and dirty arbitration?

 

Mediator’s Breakfast Club


David Richbell, Dave Owen and Michael Cover invite you to join them at the

MEDIATOR’S BREAKFAST CLUB

on Wednesday 13th November 2013 @ 8.00 a.m for 8.30am with guest speaker Sir Alan Ward, Chairman of the Civil Mediation Council.

Topic:  The Challenges of Mediation.

At The Punch Tavern, 99 Fleet Street, London, EC4Y 1DE, http://www.punchtavern.com

The agenda will be: 8.00am networking and 8.30am the talk.

Breakfast is served in the private dining area. The menu offers Croissants, pastries, buttered kipper, eggs Benedict, devilled Kidney, full English breakfast or a simple omelette.
£5.00 is payable on the day.

Attendance counts for 1 CPD point towards CMC requirements.

David Richbell, Dave Owen and I very much look forward to seeing you at this event, where we are returning to our original theme of developing our practices as mediators and developing the overall market.

Please let us know whether you will be attending, so that we can get the catering arrangements right. We may have to limit the numbers, so please respond as soon as possible. Also, please let us know if you have any special dietary requirements.

Email dwo@pengaron.co.uk to confirm your attendance.

There is also a Mediators’ New Breakfast Club group on LinkedIn.

Best wishes,
Michael Cover
✉ mc@michaelcover.com
☎ Tel: 020 7203 5134
☎ Mobile: 07766 225 128

Who is at the centre of Mediation?


As commercial mediation has ‘matured’ it is worth considering again who is, and who should be, at the centre. Is it:

  • The Party
  • The Lawyer (solicitor, barrister, judge)
  • The Mediator
  • The providers
  • The CMC

 The Party

It is said that mediation is a party-focused process. It is the party who is at the centre. It is their problem, their solution, their process. This is the opportunity for the party to really have a day in court – a far better day than being in a real court. Here a party can say what they want, with all the feeling and conviction that they have, the only restriction being time (ie no more than twenty minutes) and courtesy (ie non-abusive) – and that it is free of bloodshed.

Unfortunately the theory rarely works in practise. Too often the party is put in the background, sometimes by choice, and others speak (and negotiate) on their behalf. Which is a tragedy, for mediation provides the opportunity for each of the parties to tell their story – their story (not someone else’s version) – to the other side(s) and to then hear the other side(s) version of the same story. Done well it can help parties change position and provide reasons for them to become flexible in their approach to a solution.

So why does it happen so rarely? Firstly, it may be too early in the process. A party is inevitably cautious of the process (it is, after all, usually the first and only time that they experience mediation). They don’t want to say something that will be used against they in the future, or which may upset their lawyer. Too often a party, when invited to speak after their lawyer has made an opening statement, will say “no, my lawyer has said it all”. They haven’t! The lawyer has given the legal argument – there is a much more powerful one to be said by the party – it is their money (payer or receiver), their emotions, their life. Which is why many good Mediators have a fairly lengthy opening session, to give time for a party to settle down, feel confident about the process and then be stirred into speaking.

Similarly, the party should be the one to negotiate the deal. It is their problem, and their solution. Everyone else should be in support but the deal should be theirs. At the very least, the parties should be the ones to seal the deal, to agree the final details and shake hands. They need to own the outcome – that is why mediated deals stick.

The Lawyer

Given the above, that mediation is a party-focused process, the lawyer is cast in a supportive role. The theory goes that the lawyer takes more and more of a back seat as the party leads the pathway to solution. For the solicitor, this means preparing the party, encouraging them to take a full part in the process, advising on legal merits, undertaking and reviewing risk analysis and supporting her/his party in their quest for a solution. This may be a challenge for someone who is normally a problem-solver and a fighter for the best deal.

For a Barrister this is even more of a challenge. Instinctively a leader, spokesperson and assumed negotiator, most find it difficult to allow others (preferably the party) to lead and for them to be advisor, supporter and encourager. Indeed, it may be difficult to justify a barrister’s fee in such circumstances! The worst thing that a barrister can do is muffle the party, grandstand the opening session and highjack the deal. Better not to attend at all.

The judge may well be a significant player in a mediation – Instigating the mediation in the first place, threatening sanctions if parties do not mediate or do not mediate in good faith, being the final arbiter if it doesn’t settle. Stories of dead-cert cases that went the wrong way because the judge got out of the right bed the wrong way (or the wrong bed the right way) are always an incentive for even the strongest cases to settle in mediation. Whilst not present, or in the centre, the judge’s shadow is always cast on the mediation proceedings.

 The Mediator

The best Mediators are unnoticed most of the time. They are firm but discrete managers of the process whose function is to give the parties the best chance of finding a solution to their dispute. This involves getting parties talking, and the more they talk, the more the Mediator recedes into the background. It involves the strategic use of information (what to give, what to hold, what to reframe) without being overbearing or the central focus. A good Mediator retrains the ego, demonstrates humility and takes no credit for the solution.

There are some big egos in commercial mediation and it must be quite difficult for their owners to avoid the feeling of self-importance, especially when they are constantly in demand and where most of their mediations settle. But even the best Mediators must never forget that mediation in a part-focused process and that the Mediator is just a means to helping that party achieve a solution. One advantage of mediation is that it brings finality, removes risk and lets the parties get on with life the next day. That same next day, the Mediator is history.

 The Providers

Whist Mediator providers may not be at the centre on the day, they have a huge influence on the development of individual Mediators and on the profession as a whole. Collectively (which strangely is not a word normally used in connection with ADR organizations) they are a body which could have a strong voice in the promotion of mediation and in the development of common standards for the accreditation and development of commercial Mediators.  To a certain extent this is achieved through the Civil Mediation Council, although that body has other interested parties who have their own voice. It is the providers who have a collective interest in expanding the market, in offering a variety of specialisms and skills and who can bring a commercial as well as professional aspect to mediation. Unfortunately there is no indication (yet) of the many Mediator providers in the UK showing anything other than a precious defence of their own ‘territory’ and they seem a long way from speaking with a united voice. Mediation is the poorer for it.

 The Civil Mediation Council (CMC)

The CMC is probably the most representative of all mediation organizations, having many individual as well as company members. The Board has a membership of individual practitioners, providers, trainers, academics and the Ministry of Justice, which gives it some recognition and authority to be at the centre of commercial mediation. Unfortunately its’ history is one of not being sure of its’ purpose in life and it has moved from being an advocate for the increasing use of mediation to having aspirations of being a Mediator member body. One day there will be an Association of Mediator practitioners (hopefully including all strands of mediation beyond commercial) and the CMC will have lost this perceived role. Unquestionably, the CMC provides a valuable bridge between the government and the practitioner and that will become increasingly important as the move towards regulation gains strength. Whether or not it is at the centre of mediation, it will always be a centre of influence.

Of all the influences that prevail on commercial mediation the most important is that it is a party-focused process and all else should be subsidiary. It is their problem and their solution and the Mediator and all the others are there help them get the best deal possible.

 

David Richbell

December 2011

 

 

Revealing MASTERY…


With the tenth anniversary event only days away, the MATA faculty, can now unveil the latest key concept – Mediation Mastery. This new theme will be uncovered and explored in depth at the event running from 7th – 11th July, and in particular at the Peter Adler two-day workshop (see below).

We introduce in this key paper the ROUTE TO MASTERY..

Route to Mastery

Purpose of this paper

For the past ten years or more, we[1] have been training commercial Mediators at every level – foundation, through the Mediator Training Course; intermediate through a series of courses that build upon the foundation training; and advanced, particularly through the annual international Advanced Mediator Retreat.

Our training is always mediation-centred and is delivered by practising Mediators. The purpose of this paper is to draw all these diverse strands into a cohesive whole. Because our aim is always to train people in excellence, to enable them to continually grow both in knowledge and in ability, we have called this ‘whole’ the Route to Mastery.

Why me?

It may seem audacious for me to write such a paper. I am not a big name Mediator who helps to settle major, big-price disputes or who helps the government resolve international embarrassments. I am not mediating three or four cases every week and I am not an eminent lawyer who helps frame European or other directives. I do not have the ear of politicians, nor do I guest at state or other banquets. But I have trained a lot of people in mediation skills and recognise that some, a precious minority, ‘have it’ (some call it ‘in the flow’) and others don’t. And I do, often, experience the magic of being ‘at one’ with the parties and their problem in mediations – and that is something very special. It is also a privilege.

I just want to capture in words what it is that takes some Mediators to the heights of excellence.

What is Mastery?

Put baldly the Mediators role is to give the parties the best chance of doing a deal. Less baldly the Mediator’s task is: Continue reading

Mediation in 2020


Remember to regularly visit the MATA website Library for new papers and articles. Added today is a paper by Michael Leathes in which he looks at where mediation will be in ten years time…

…”None of us knows the future, but we all try to predict it.  My way for forecasting mediation is to appreciate the history, assess the status quo, then focus on some top-level issues: how mediation is learned, practiced and presented to its market, plus how user needs are changing.  Then cut into each with a constructively critical eye, see what leaks out, and combine the results to map out a likely or achievable future.  This enables us to assess whether, and if so how, we can all exert a significant and positive influence on the development of mediation….”

Read the full article Mediation in 2020