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

Legal 500


I am delighted to have been recognised once again in this year’s Legal 500, in Band 2, alongside my peers with whom I have worked for many, many years. I could not be in better company. http://www.legal500.com/c/london/dispute-resolution/mediators

legal-500-jpegDavid Richbell of In Place of Strife is one of the UK’s most established mediators, having mediated commercial cases since 1992, a high proportion of those involving international elements. Richbell’s ‘relaxed, tactful and reasoned style is ideally suited to complex, technical and fraught commercial disputes’. He also ‘takes the time to understand the parties’ positions fully and the reasons for the entrenchment, while listening to all parties’ suggestions as to how to make a workable deal’.

Relationships v problem solving


Commercial mediation is a solution-based process and there is a danger of commercial mediators ignoring the relationship issues in disputes because their focus is on getting the deal.

That fact is that behind most disputes there is a broken relationship and it is important that the mediator acknowledges this.It has taken me some time to remember this because mediations have become harder and I have gradually realised that if I spend more time with the person and less with their problem, the solutions tend to emerge more easily. Spending more time on relationships usually results in the party’s needs becoming more evident and the movement towards settlement tends to become smoother and more co-operative.

If a party feels heard, if their pain is recognised, if their emotion is valued, they are more likely to move on.

That doesbook jpegn’t mean that problem solving is inappropriate, just that taking time with relationships should precede solutions.This is particularly so with irrational or unreasonable people because the temptation is to ignore, dismiss or even resist them. It is even more important to spend time exploring why the person feels so strongly and is taking such an apparently extreme position.

p56 How to Master Commercial Mediation, 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

C of E Regional Shared Conversations on human sexuality


We are now at the end of the Church of England’s Regional Shared Conversations on human sexuality. There were thirteen three-day Conversations around the country, each facilitated by around seven or eight mediators and I did five. They were quite challenging, not least because as a facilitator my own views and beliefs (which were sometimes very different to those of some participants) had to be suppressed.

It has been very enlightening though, and a privilege, to hear other Christian’s strongly held beliefs expressed and valued by others who believed differently.

download (1)

The whole purpose of the Conversations was to create a safe space for people to talk, understand and value difference, and it was an undoubted success. The intention was not to find answers, just to share and understand, which is a real luxury in today’s society.

CMC Conference 11th May 2016 – workshop


On Wednesday 11th May 2016 my son Oliver (reformed solicitor) and I are running a workshop at the CMC Conference. It will be interesting because it will be our first conference since setting up The Dispute Resolution Partnership last year. The DRP covers Avoidance, Management and Resolution of disputes, and our session on Wednesday will focus on dispute avoidance and in particular on having difficult conversations.

Ironic that a solicitor and mediator should be helping people avoid disputes – doing ourselves out of business perhaps. But in all our work we see situations where we know that if only a person had said or done (or not said or not done) something early on they wouldn’t be needing us. So our aim is to help people say or do the right thing and so avoid a situation escalating into a dispute.