UK Mediation Journal / Showguide Issue 13

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Welcome to Issue 13 UK Mediation Journal & Confernece

Welcome to issue 13 of the UK Mediation Journal. We’d like to take this opportunity to thank our contributors, sponsors and subscribers for their continued support and dedication to advocating ADR and mediation. Our commitment to provide those in the workplace with the skills and contacts to mediate and offer effective training is unwavering.

We’d also like to take the opportunity to welcome you to UK Mediation Conference 2024Managing Conflict in the Workplace. Contributors to the programme include Sheridan Worldwide, The TCM Group , Civil Mediation Council, Consensio, Mia Forbes Pirie, Tutu Foundation UK and Clive Bonny

We hope you enjoy the day and find the content both insightful and practical. We look forward to seeing you at future conferences!

Craig Kelly

Iconic Media Solutions

Inside:

4. Making the case for mediation

7. Why We Need a Resolution Revolution

11. Existential and Cognitive Aspects of Successful Mediation

16. Getting in the room

18. A Crisis of Feedback

22. Three ways to have less stressful conflict conversations

24. Churchill v Merthyr Tydfill: Integrating dispute resolution into the management of clinical claims

29. Directory of Mediation & Training Providers

37. UK Mediation Conference Show Guide

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Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd affiliated with any company or organisation listed within. It is advised before appointing a mediator or trainer that you carry out your own quality and competence checks.

Making the case for mediation

By Caroline Sheridan, CEO and Mediator, Sheridan Worldwide

Acas research, ‘Estimating the costs of workplace conflict’, shows that the cost of workplace conflict in the UK may reach nearly £30 billion per year. There is no escaping that that is a colossal sum to lose down the back of the national sofa, especially where a fair chunk of it is avoidable.

I was honoured to chair a panel session at Acas’s recent Business Case for Mediation conference. Representatives from academia and industry agreed that mediation can transform how employees and employers see disputes at work, turning the process into a means to an end, a resolution, rather than its being the end in itself.

Business context

There is no imminent prospect of work disputes becoming fewer in number. Quite aside from world events on which employees may take different sides and the increasing use of social media as amplifier of views which might politely be described as “challenging”, we also have changes in employment law both new (allowing for flexible working requests from the first day of employment) and proposed (doing the same for unfair dismissal rights). Both seem likely to maximise the potential for an early falling-out, so time training managers on handling conflict is not going to be wasted.

Economist and journalist Will Hutton provided evidence that at least some of the UK’s slide down the international productivity and wellbeing tables is due to weakening levels of employee engagement.

I will not be alone in shaking my head over recent headlines around the number of people in the UK who are off work with mental health issues or who have dropped out of the workforce altogether for that reason. Though far from the only cause, it seems obvious that less clashing of heads with one’s managers or colleagues could go a long way to allow people to return to productive work. Formal grievance procedures will in time produce a legal resolution, but mediation is much more likely to lead to a real one.

Maybe we have spent enough on leadership development for the time being and should now focus instead on improving lowlevel conflict management skills among those most directly “in the trenches” with the employees raising complaints and grievances.

Maybe that would lead more employees to feel heard and to have the confidence to raise issues important to them without fearing that the business would immediately batten down the hatches rather than engage constructively. If employee engagement is a proxy for productivity, then the business case for mediation in the UK has never been stronger.

So why aren’t we doing more of it?

Of course mediation is not a cure-all. Some level of dispute at work is inevitable. There are examples to be made, precedents to be set, instructions to be complied with. But even once you take those few cases out of that £30 billion, the business case remains the same for all the reasons we have known from the start – speed, cost, flexibility, discretion, and so on.

All my panel members agreed that the principal obstacles to wider use of mediation in the UK workplace are history and fear.

History, because most current managers and staff representatives have grown up with a relatively adversarial approach to such disputes, driven in part by the process they think is required by the Acas Code, even though in fact it is not.

And fear because, bluntly, no-one ever lost their job for following a formal process set out in internal policies, even though the outcome was perhaps the destruction of what was left of the necessary relationships between employee and management. If that fear is to be addressed, then more senior managers will also need to actively support trying mediation first, almost as a default, and save moving directly to formal processes for those few cases where that is appropriate.

The case for greater awareness

So maybe a better title for the Acas event would strictly have been ‘The Business Case for Mediation Awareness’.

With many others, I have been extolling the virtues of mediation at work for many years, and I am not aware of a single instance of an organisation going from that resolution culture back to primary reliance on formal grievance processes.

References

1 https://www.acas.org.uk/research-and-commentary/estimating-the-costs-of-workplace-conflict

2 First published: https://www.acas.org.uk/making-the-case-for-mediation

Caroline Sheridan

How to resolve workplace conflict

Everyone can resolve conflicts when they are empowered to create their own solutions. Sheridan Worldwide works globally to help people and organisations communicate effectively and strengthen working relationships by:

How to solve workplace conflict?

Everyone can resolve conflicts when they are empowered to create their own solutions. Sheridan Worldwide works globally to help people and organisations communicate effectively and strengthen working relationships by:

Focusing on team dynamics through honest and candid conversation coaching

Focusing on team dynamics through honest and candid conversation coaching

Providing strategic consulting to support a shift to a resolution culture The provision of expert workplace and employment mediators Conflict resolution and mediation skills for managers and leaders

Providing strategic consulting to support a shift to a resolution culture

The provision of expert workplace and employment mediators

“Sheridan

“Sheridan Worldwide had a hugely positive impact on our organisation and on the parties who engaged in mediation following a relationship breakdown.”

Hannah Coulson, Chief Human Resources Officer, Callastone

Conflict resolution and mediation skills for managers and leaders

Hannah Coulson, Chief Human Resources Officer, Callastone

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Why We Need a Resolution Revolution

By David Liddle, Chief Executive, The TCM Group

There are very few people who haven’t experienced some form of conflict at work at some point in their career. Managers fall out with their direct reports over performance issues, team members come to blows as a result of differing working styles, and colleagues clash with each other over whether work has been allocated fairly.

It’s a problem that is costing industry dearly, both in human and financial terms. Research from the CIPD suggests nearly 4 in 10 UK employees experience some kind of interpersonal conflict at work over the course of a year. A report from Acas puts the cost of this workplace conflict at £28.5 billion every year, equating to just over £1k on average for every employee.

The causes of workplace disputes are complex and varied. But I firmly believe that the way organisations typically handle conflicts, complaints and concerns is contributing to this rising tide of dissent, disagreement and dysfunctional behaviour. We need a fresh approach to resolving the myriad of issues that inevitably arise at work – one which is more

appropriate for today’s fast-changing modern workplace.

A growing number of forward-thinking organisations – Burberry, Aviva and the BBC to name just a few – have recognised this and are reframing the damaging and divisive disciplinary and grievance policies and processes of the past. They are developing Resolution Frameworks which allow them to resolve conflict in a more compassionate, people-centred and values-driven way.

Says Claire Salter, Director of Global Employee Relations at Burberry: “We know that conflict is unavoidable, but we know that when it’s handled well, it can be a driver for positive change. In fact we strongly believe that positive and constructive conflict can fuel our creativity – and as a creative business, creativity is at the core of everything we do. That’s what excites us about implementing a Resolution Framework – it’s an opportunity for us to reframe the conversations that we’re having about conflict across the business, and it gives our leaders the tools and space they need to resolve those issues early, informally and constructively.”

David Liddle

So what does a Resolution Framework look like – and how does it work in practice?

From retributive to restorative

The traditional processes used by organisations to manage conflict are retributive in nature. When a problem arises, instead of encouraging employees to sit down and sort it out through face-to-face, adult dialogue, people are typically plunged straight into damaging and divisive formal processes.

This causes a huge amount of stress and distress to the people involved. Employees get anxious and upset. As their stress levels rise, their performance starts to suffer, and often they end up going off sick.

These formal processes rarely, if ever, result in a successful outcome. Relationships are irretrievably damaged, good people leave their jobs, corporate reputation takes a hit - and ultimately, no-one wins.

A Resolution Framework, by contrast, is restorative in nature. It offers organisations proactive and empowering approaches for securing a constructive and lasting resolution to all types of workplace conflict. These might include informal dialogue, facilitated conversations, mediation, team facilitation and coaching. The ability to access more formal processes, up to and including dismissal or legal action, is retained for the rare occasions where it is identified that this is the most appropriate course of action.

These frameworks put people before process. They shift the dial towards adult-to-adult dialogue, allowing organisations to develop workplace cultures which foster empathy, inclusion and wellbeing. They engender a culture of co-operation and collaboration, leading to happy, healthy and harmonious workplaces.

Getting up and running

The involvement and collaboration of organisational stakeholders – senior leaders, managers, HR, employees and union partners – is key to successful development and implementation of a Resolution Framework. Companies who have successfully introduced this approach have typically involved all interested parties from the outset in developing frameworks which work in their specific operational circumstances and align to their organisational purpose and values.

Three core elements of the Resolution Framework are the Resolution Centre, the Resolution Index and Resolution Champions.

The Resolution Centre is a central hub which coordinates the day-to-day operation of the framework and manages the triage process (see below) used to identify the most appropriate route to resolution for any conflicts, complaints and concerns that are raised. The centre also typically co-ordinates conflict management training for front line managers and resolution champions (see below),

Burberry and TCM winning the HR Impact Award at the Personnel Today Awards 2023

and in some cases, manages in-house communication and development of toolkits and resources to support employees as they embrace the new approach. The Resolution Centre has an important role to play in gathering data, feedback and intelligence around the resolution process, so that the organisation can continually learn and improve its conflict management competence.

The Resolution Index is used to triage any requests for resolution that come through to the central hub. Some of the criteria used in the triage process include seriousness of the issue being raised, impact of the situation on the parties, previous attempts to resolve the situation and their outcomes, number or frequency of previous complaints, and the risk of the situation to the parties and the organisation. Each request is scored against the criteria, and the most appropriate route to resolution is assessed. The lower the score, the more informal the remedy. In higher scoring incidences, organisations may consider undertaking a detailed fact-find, which may in turn lead to a more formal resolution meeting.

Resolution Champions are an internal cadre of trained volunteers, who support the parties through the resolution process, and for at least a year after, to ensure that no further issues arise and that the agreed outcomes or improved relationships are retained.

How it works in practice

The Resolution Framework encompasses the following key steps:

Step 1: An issue arises

The Resolution Framework starts with the premise that it is the responsibility of the local line manager to resolve any situations as early and constructively as possible. This usually takes the form of an early, informal resolution meeting, where the people concerned are able to discuss their disagreements or concerns openly and honestly, in a safe and supportive space. In the vast majority of cases, this approach generates a successful resolution and no further action is needed. Should problems start to arise again, a Resolution Champion will be on hand to help nip any issues in the bud and get everyone back on track. The success of an early resolution meeting does of course depend greatly on the line manager having an understanding of the nature of conflict and how to resolve it. Organisations cannot assume their managers will naturally have the confidence and competence to do this; they will need training to support them in this important role.

Step 2: Request for Resolution

If attempts to resolve an issue locally and at source are not successful, the next step is for the parties involved to submit a ‘Request for Resolution’ to the Resolution Centre. Trained staff within the centre will triage the request against the pre-determined criteria in the Resolution Index, and will make a recommendation for the most appropriate route to resolution. This step is the restorative alternative to the more retributive approach of ‘raising a grievance’.

Step 3: Early Resolution

Requests that are triaged at this early stage are most likely to be well suited for one of a number of early resolution methods. This might include a facilitated conversation, where both parties are able to share their concerns, express their needs and find a mutually acceptable way of restoring the relationship and moving forward. Some cases will be suited to mediation, where a trained, independent mediator will bring people together to engage in powerful dialogue which will help to transform their dispute from destructive to constructive. Other options might include team facilitation, or coaching. Each approach is suited to a particular type of conflict and its relative complexity or severity.

Step 4: Formal Resolution

For higher scoring cases, the triage process will lead to a more formal resolution process. This might be a fact find (an alternative, more restorative approach to the traditional investigation) or a Resolution Meeting (as opposed to a disciplinary or grievance hearing).

Organisations who have adopted a Resolution Framework are resolving issues sooner and more effectively and protecting workplace relationships, with a corresponding

LEGAL MEDICO

impact on performance, reputation and competitive advantage.

Anthony Fitzpatrick, Head of Colleague Experience and Employment Policy at Aviva sums it up well: “The introduction of the Resolution Framework changed the whole concept and dynamic of managing conflicts and complaints within the workplace. We have seen that the vast majority of cases are settled either at triage or through a facilitated conversation. This allows everyone to focus on their job and increases morale and motivation, which is good for personal wellbeing; it’s good for the business and it’s good for the customer too.”

For a complimentary copy of the Resolution Framework template, please contact our Resolution Team Hannah Cotton and David Liddle.

Hannah: hannah.cotton@thetcmgroup.com

David: david.liddle@thetcmgroup.com

Existential and Cognitive Aspects of Successful Mediation

By Hakan Ali Turgut

Abstract

In such an ethnically and culturally diverse world of today, conflict resolution and the role of mediators are getting more and more important. Though the underlying issue of a conflict may differ in so many ways, there is one common element in every conflict: a human involvement. Thereby, it is understandable that existential aspects of human condition may shed some light on dispute resolution. Undoubtedly, existential anxieties as fear of death & freedom, loneliness, time and temporality and uncertainty inevitably interfere with successful outcomes of mediation. A mediator should properly address all these existential concerns and appropriately handle heavy emotions created by them. Thus, it is important for mediator to have basic knowledge of existential aspects of conflict resolution. Likewise, Mediator’s information level on such cognitive processes as brain’s working systems and biases also play a crucial role in resolving the conflicts successfully. In this sense, practical applications of existential philosophies and some facts of cognitive sciences are the essential elements of successful mediation outcomes. A psychologically and cognitively informed mediator are much more able to solve the conflicts in a transformative manner.

Introduction

From the moment an infant begins to sense the differentiation between self and others, it starts to conflict to exist in the world. Anyone with a moderate knowledge of infants based on simple observation may easily realise how powerfully it can obstinate when it is prevented from fulfilling its wishes. In fact, there is a few bigger sources of stress than a toddler who is trying to develop a sense of identity through conflicting with its basic caregivers. No matter how unimportant underlying issue is, conflicting to exist as a separate identity by drawing borders between self and the others makes sense. This biological fact brings us to another existential reality: To conflict is to exist. To put it in Rene Descartes’s terms: I conflict therefore I am. 1 This existential struggle to exist in early years of life has a crucial role for the construction of the ‘Ego’ without which a healthy sense of self cannot be developed. Issues of self and identity raise profound and often painful questions about who we are. 2 Thus, it is within our deep nature to feel stress whenever we enter into a dispute; even for the most trivial ones, to experience a kind of existential anxiety with any conflict is inevitable. Taken into consideration this fact, it is easy to understand why it takes arduous work to manage

and settle conflicts in a proper and successful manner. In this article, I tried to introduce some psychological and cognitive tools and discourses that will help mediator cope with difficulties arising from the existential stress of the conflict resolution.

As widely accepted by scientific circles, cognition & psychology are the direct result of biological & neurological mechanisms of the brain and they are not separate but unique entities either of which completes the other and could not exist without the other. Additionally, we are born with different propensities for aggressive behaviour depending on our gender, our genetic background, the amount of nourishment we received from placenta, and our mother’s consumption of nicotine, alcohol, and medication during pregnancy. 3 Thereby, I took into account some neurobiological facts such as information processing (thinking) systems & biases that may have considerate amount of impact on the psychology of the conflicting parties, and the mediator as well, in my article.

However, this article does not cover all conventional applications of a successful mediation that has been said and written until now by almost each scientific work on the subject. Instead, it will focus on two main elements: Psychological and cognitive factors that significantly affect the success of the mediation process in a practical manner: Meeting the existential needs of disputants and keeping the parties’ cognition in the right thinking system.

It’s also worth mentioning that any organization, corporate or institution cannot foster without peace in the workplace. To create and sustain peaceful environment in and workplace heavily depends on negotiation skills and successful mediation outcomes. Thus, it is very important for the workplace mediators to bear in mind the facts and the opinions presented in this article, while they are performing their duties, in order to produce transformative relations for both inside and outside of the workplace.

Materials and Methods

In this study, I tried to explore the cognitive and psychological facts that mediator may utilise to effectively conduct the mediation process. The idea that ignited this effort was to explore the patterns of conflict and its resolution as well. In this sense, the common factor of ‘human involvement’ in conflicts led me to deep looking and scientific observation to find out some practical applications to get successful outcomes in mediation. For this aim, I used existential philosophy and its main elements such as fear of death & freedom, loneliness, time & temporality, and uncertainty. These elements help me reinterpret some practical applications of conflict resolution to reach successful outcomes in mediation. The question of ‘what the particular existential needs of conflicting parties are’ was the central theme of my work.

I also searched for the past literature thoroughly to determine the particular characteristics of decision making and thinking processes, since I think that they play crucial roles for successful outcomes in mediation. I used my previous professional experience and knowledge to scientifically show correlation between the cognitive

and psychological attitudes of mediator and outcomes of mediation. As a former High Court Justice, knowing brain’s thinking systems, biases and decision-making processes eased my job. Some cognitive methods to overcome the biased thinking was not unfamiliar to me. Besides, my curiosity on transformative mediation took me to contemplate and search on psychological and cognitive factors that play important role for successful outcomes. After researching the relevant background literature thoroughly, I tried to combine all the essential elements which I found worth writing in this article to create an integrated and meaningful scientific work on the subject.

It’s also worth mentioning that any organization, corporate or institution cannot foster without peace in the workplace. To create and sustain peaceful environment in any workplace heavily depends on negotiation skills and successful mediation outcomes. Thus, it is very important for the workplace mediators to bear in mind the facts and the opinions presented in this article, while they are performing their duties, in order to produce transformative relations for both inside and outside of the workplace.

1. Meeting the Existential Needs of Disputants

Conflict takes place in a diverse world, a world of ethnic, national, geographical, cultural, economic, social, religious, and legal differences. 4 In such a complex environment of today’s world, conflict may show up in any race, nation, ethnicity, gender, or age. Likewise, anything from the most materialistic objects to abstract honorific issues can be a source of a conflict.

Though the subject and object of a conflict may vary in countless ways, they all share one commonality: a human element. An element that inevitably brings different values, emotions, opinions, attitudes, sensitivities and even childhood traumas into the equation of dispute resolution and consecutively complicates it. In many senses, conflict and dispute arise at our boundaries and edges. 5 Yet the psychologically conscious mediator’s main task stems from the very same contrast: to find and utilize universal patterns arising from simply ‘being a human’ that will help mediators successfully manage and resolve conflicts. This idea brings us the necessity to shed a light on to conflicts through existential lenses.

According to a widely accepted definition, existentialism may be defined as philosophical standpoint which gives priority to existence over essence. 6 The concept of ‘universal patterns of human condition’ is intrinsically connected with the most significant feature of being a human: Existence. In other words, to conquer the ever-standing patterns of human behaviours in a conflict, one must start with each unique individual experience. In this sense, existentialism- as a philosophy of existence- which takes the idea of ‘individual personal experience’ as a central theme, may help the mediator explore and resolve the unique codes of all conflicts.

There are some certain concepts of existential literature which are adaptable to mediator’s toolbox to relevantly deal with the anxieties arising simply from basic existential concerns. The most significant ones can be counted as time & temporality, uncertainty, fear of death, need to be accepted, meaning of life and fear of freedom. These are

the very existential concepts that a successful mediator must bear in mind without which a successful outcome would certainly be less likely. Looking conflict through this existential aspect, it is reasonable to claim that addressing these stressors in mediation process has a crucial importance on the likelihood of a successful mediation. However, in any mediation process, these existential concerns will show up in such a subtle form that only the mediators with appropriate toolbox may recognise and fix these problems arising from them.

The first challenge to the mediator is to overcome the parties fixated desire to litigate, and their psychological relectance to mediate. 7 Just like the resistance to mediate, disbelief in process and mediator, forcing the other party to make concessions, struggle to prove righteousness, making unreasonable offers to humiliate other party, demanding unrealistic claims to revenge on other party may be given as some examples of these subtle forms.

Though addressing these subtle forms of existential concerns is not an easy task, an ingenious mediator may develop an appropriate remedy no matter how difficult the task is. Asking open-ended questions, active listening, summarizing, and reframing are the most renowned conventional methods to give the disputant an opportunity to ventilate on these stresses and consecutively release the tension. Existential concerns will inevitably produce certain heavy emotions which should be handled appropriately to get successful outcomes. The lesson here for mediators is that suppressing emotion is not only impossible, but also counterproductive. 8 If skilfully applied, it is no doubt that any disputant will be more eager to end the conflict in a relaxed mood, free from existential anxiety. In this sense, any proper comparison made by mediator that will show the advantages of mediation against litigation in terms of time and cost efficiency will obviously ease them on anxieties created by ‘time and temporality’ related issues. Similarly, an opening statement that clearly puts the action plan in an appropriate and detailed manner will of course help them cope with feelings of uncertainty.

Mediators differ as to the extent of the coaching that they should or should not provide to the parties. 9 They may also have different attitudes toward the confrontation level in negotiations. In other words, while some of them let the parties freely debate in a fierce manner, others may be afraid of losing control in such hot debates. However, to satisfy parties need to vindicate, a mediator may need to flexibly allow the parties show and prove their cases rather than strictly warning the parties about being accusatory. Depending on parties’ preferences, a mediator may even let the parties stage a quasi-litigation of the case for the sake of satisfying their powerful desire to vindicate. To break the parties’ resistance to mediate by addressing these existential concerns creatively, no matter in what form-except the violence- the application takes place is crucial element of successful mediation; as a result of these methods, getting one step closer to a settlement will compensate the effort put in this manner.

Likewise, taking into consideration that choosing to settle or to litigate may invoke the fear of freedom10, mediator may emphasize parties’ self-determination power to create their

destiny by being the judges of their own case. It is highly probable that to decide11 on a dispute may stimulate the participants’ fear of death as well. Priming parties with benefits of conflict free, peaceful life may relevantly lessen these ultimate existential anxieties. It is also worth mentioning to the parties that, compared to the mediation, litigation is much longer and tiring process seldomly producing beneficial outcomes. In this sense, parties may also be reminded that the most precious thing one can possess, the psychic energy, shouldn’t be wasted by complex and exhausting court proceedings. There is no doubt that especially legal counsellors of the parties will benefit from mediation process by accomplishing the legal task in a more effective way with a better outcome for both themselves and their clients. All these arguments, if put in a proper and sensible manner, will serve the mediator’s aim to create ‘winwin’ solutions by helping disputants free themselves from the fear of freedom and death.

However, any mediator must bear in mind that all these above-mentioned discourses should be displayed in a manner that strictly complies with equality principle. There is no doubt that as a neutral 3 rd party, a responsible mediator should locate himself at an equal distance to either party. Private sessions are much more convenient than joint meetings for dealing with the existential concerns of one party. Yet when a mediator necessarily establishes a rapid rapport with one party in a mutual session, he must start building trust with the other party without losing time. Additionally, since trusting relationship between the parties and the mediator is the key element for both successful process and positive outcome, it is essential for the mediator not to start using discourses explained in the previous paragraphs until a proper amount of rapport and trust is established between them and the parties.

2. Keeping The Parties’ Cognition in The Right Thinking System

There are some essential information about human cognition that every each mediator should know to conduct the mediation skilfully. Primary one is that the psychological states and moods of the participants are deeply connected with the neurobiological processes that takes place within the body and particularly the roof of it; the most complex part, the brain.

Electrical and chemical signalling within and between neurons consume energy. 12 It is a widely known biological fact that our brain which constitutes 2% of the total body weight consumes 20% of the overall body energy. Besides, energy consumption takes place not only in neural information processing activities but also in maintenance activities of neural circuits even in the resting times. ‘Housekeeping’ tasks may also consume energy during signalling. 13

This significant biological feature of human brain inevitably has massive impact on emotions, thoughts and other cognitive processes which consequently affects the mediation outcomes. Considering this biological fact, it is also understandable that the capacity of processing information efficiently and maintenance activities of the brain will be affected by the energy levels of the overall body and its commanding office, brain. In this sense, hunger is undoubtedly an important factor of brain’s energy level. Mental and physical exhaustion are also the causes of low level of glucose which is main fuel of

the brain. Sleep has been proven to improve memory recall, regulate metabolism, and reduce mental fatigue.14 Thereby sleep deprivation will certainly affect neurons capacity of processing information since it will reduce its capacity to get rid of the wastes produced by thinking.

Another factor that may affect neural circuits’ capacity are negative emotions which reduce critical thinking capability. In a recent study among students, it is scientifically shown that critical thinking was positively associated with the achievements of the students, whereas negative emotions such as anger, anxiety, shame, boredom and hopelessness were negatively correlated with success rates. 15

Human beings activate defensive systems in the face of threat 16. Thereby, the other main factor which will reduce cognitive thinking abilities is amygdala hijack which occurs in the face of danger and threat. In such situations which are high likely to occur in conflicts, since the amygdala will take over all crucial parts of the brain and allocate them to cope with the imminent danger and threat, cognitive abilities will inevitably diminish to almost 0.

One of the most important cognitive phenomena that a mediator should always take into account is the brain’s working (thinking) systems: System 1 operates automatically and quickly with little or no effort and no sense of voluntary control. System 2 allocates attention to the effortful mental activities that demand it, including complex computations17. & System 2. System 1 is

considered to be evolutionarily old and characterized as fast, associative, emotional, automatic and not requiring working memory. System 2 is considered to be more evolutionarily recent and characterized as slow, declarative, rational, effortful and relying on working memory.18 Though System-1 is the leading hero of the human cognition, one of the main characteristics of it is its proneness to errors. Its main function is to preserve the brain resources for survival purposes by making snap judgements and thin-slicing19 which require relatively low energy consumption compared to system 2. Thin-slicing is part of what makes the unconscious so dazzling20. System 2 is the real problem solver mechanism which takes over the command upon the proposal made by system 1. Both systems are essential and equally important for the harmony and balance of the human behaviours. Truly successful decision making relies on a balance between deliberate and instinctive thinking.21

Such professionals whose job depends heavily on cognitive skills as judges, lawyers and in a broader sense decision makers, must accurately know and recognize the unique conditions that necessitate the use of each thinking system for better mediation outcomes. At this point, mediator’s amount of task gets doubled. Besides his own cognition, he needs to keep the track of the parties’ cognition as well in order to prevent them from getting off the road.

It is usually recommended that mediator should ensure the right conditions that naturally favour the parties’ system 2.

Though this common sense is generally true for reasonable and long-lasting outcomes, a mediator should never underestimate the power of system 1 which plays an important role even for referring the task at the hand to system 2. To give an example for such conditions, rapport creating crucial task of the mediator will be evaluated by the parties’ system 1, since the likeability of the mediator will be being judged from the very moment they start to speak by thin slicing of the parties; in other words, by thinking without thinking, the most significant feature of system 1.

Similarly, since human beings are notorious for their low accuracy to give right decisions on such extremely important subjects as life changing personal events, it may be acceptable to let the system 1 to take over the control up to a certain level to ease the task of giving the right decision whenever the logical system 2 cannot handle the situation properly. In such cases, the mediator or the parties may take the advantage of system 1’s significant function- ability to lower the blood pressure and heart rate when the right decision is made- as an indicator of having decided rightly upon the matter.

Another element of the successful mediator’s psychological toolbox is properly handling the biases. In general, heuristics, which are produced by fast, intuitive thinking, also known as System 1 thinking, are quite useful and yield adequate answers. 22 But sometimes they lead to biases which we described as systematic, predictable errors of judgement. 23 Systematic errors are known as biases, and they recur predictably in particular circumstances. 24

One of the mediator’s main task is to make the parties be aware of these biases.25 A cognitively informed mediator should know and recognize all these commonly practiced biases which will divert the participants from the right track. Managing conflict is like herding cats: disputants often do not follow directions, become upset, and can change directions at unexpected times.26 When faced with a bias, even simply telling the parties about the existence of such a cognitional error in a neutral manner may correct the parties’ biased thinking.

In addition to this, since the biases are the products of fast thinking-System-1, to save the party from the grasp of any bias, mediator has no choice but slow down the thinking process of the biased party. A practical tool for rendering this change is to stimulate the system-2 of the victim by asking open ended questions 27 which will lead them to slow down by reasonable thinking. Similarly, to properly handle strong emotions created by biased thinking, conventional wisdom of giving breaks not less than twenty minutes is a simple proper way to cool down the party and let them release themselves from the powerful grasp of stormy emotional states.

3. Conclusion

Mediation is a very complex alternative dispute resolution mechanism in which existential and cognitive issues interfere with the successful outcomes. A successful mediator who aims to settle the disputes appropriately has to be equipped with appropriate psychological and cognitive tools which are so essential to keep the parties in the right track that leads them to peaceful and transformative settlements. Otherwise, so many interfering difficulties will inevitably create either unsettlements or settlements lacking transformative and therapeutic elements. On the other hand, psychologically

and cognitively informed mediator will be able to induce a perception shift by creating a new meaning. By doing so, a healing affect will occur in mediation process that makes the parties interpret the events in a more conflict-free, better way. In other words, after such a transformative experience, parties will learn to show empathy by unconditionally accepting themselves and the others in a healthy and easier manner; to put it simply, they will learn to free themselves from the burden of unnecessary conflicts and live a more satisfactory life.

References

1 In Latin: ‘Cogito, ergo sum’ which can be translated into English as ‘I think, therefore I am’ is the first principle of the philosophy of 17th century French Philosopher, Rene Descardes .

2 Bader, E. E. The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle, Pepperdine Dispute Resolution Law Journal, Volume 10, Issue 2, 2010, p.183

3 Swab, D. We are Our Brains-From The Womb To Alzheimer’s, 1st ed.,2015, p.174, Penguin Books.

4 Randolph, P. The Psychology of Conflict,- Mediating in a Diverse World. Narrated by Philip Franks, audiobook ed., Audible Studios for Bloomsbury, 2015. https://www. audible.com/pd/B01B561C7M?source_code=ASSORAP0511160006&share_ location=player_overflow. 00.12.25-00.12.34

5 Mulligan, J. Process Oriented Psychology: Advanced Practices for Dispute Resolution, Journal of Mediation and Applied Conflict Analysis, Volume 5, Issue 1, 2018, p.651.

6 More, V. Existentialism: A philosophic stand point to existence over essence. The South Asian Academic Research Chronicle, Volume 3, Issue 1, 2016, p.14

7 Randolph, P. (n 4) 03.21.43 - 03.21.51

8 Hoffman, D. A. Wolmana D. R. The Psychology of Mediation, Cardozo Journal of Conflict Resolution, Volume 14, 2013, p.771.

9 Randolph, P. (n 4) 03.45.28 – 03.45.34

10 Freedom is accepted to be one of the main existential anxiety sources by existential philosophies.

11 In Latin, the suffix ‘cide’ which is found in such words as genocide, germicide, herbicide, and homicide has the meaning to ‘kill, cut down’. As for the’ de-cide’, it obviously has the very same etymological roots which imply ‘to kill all the other choices by determining on one of them’. Taken into account this fact of killing all the other choices as we decide, it is understandable that every decision- making process -no matter how unimportant the subject is- may invoke an existential anxiety arising from killing the other possible choices, and thus other ways of life; consequently, any decision-making activity may create an anxiety arising from ‘fear of death’ which is caused by ‘fear of living a wrong life’ as a result of a possible wrong decision.

12 Niven, J. E. Neuronal energy consumption: biophysics, efficiency and evolution, Current Opinion in Neurobiology, Volume 41,2016, p.129.

13 Engl E, Attwell D. Non-signalling energy use in the brain, The Journal of Physiology, Volume 593, Issue 16, 2015, p.3421.

14 Eugene A.R. Masiak J. The Neuroprotective Aspects of Sleep. MEDtube Sci. Volume 3, Issue 1, 2015, p.35.

15 Villavicencio, F. Critical Thinking, Negative Academic Emotions, and Achievement: A Mediational Analysis, Asia-Pacific Education Researcher, Volume 20, Issue 1, 2011, p.122.

16 Bader, (n. 2), p.206.

17 Kahneman, D. Thinking Fast and Slow, Narrated by Patrick Egan, audiobook ed. Randolph, P. The Psychology of Conflict,- Mediating in a Diverse World, Narated by Philip Franks, audiobook ed., Random House Audio, 2011., https://www.audible.com/pd/B005TKKCWC?source_ code=ASSORAP0511160006&share_location=player_overflow. 00.46.29-00.46.49

18 Conway, S. B. & West, R. System-1 and System-2 realized within the Common Model of Cognition. Conference paper: AAAI Fall Symposium, Arlington, Virginia, DOI:10.48550/ arXiv.2305.09091., 2022 p.2.

19 The term ‘thin-slicing’ refers to make a quick decision based on a very small amount of information.

20 Gladwell, M. Blink: The Power of Thinking Without Thinking. 1st ed.,2006, p.23, Penguin Books

21 Gladwell, M.2006, p.141.

22 Kahneman, D. Sibony, O., & Sunstein, C. R. Noise-A Flaw in Human Judgement, 1st ed. 2022, p. 161. William Collins.

23 ibid p. 161

24 Kahneman, D. (n. 17), 00.02.07 - 00.02.24.

25 The most renown biases are: Confirmation bias-to search for evidence which proves one’s belief; fundamental attribution error- tendency to ascribe our own weaknesses to circumstances and success to our character whereas we do exactly opposite with others ; overconfidence bias- tendency to think we are smarter, fairer, and more talented then we are; endowment bias- seeing an owned object more valuable then when we do not own; memory bias- tendency to recall memories that are congruent with a current emotional state; lost aversion- feeling the pain of loss twice as powerful as pleasure of gaining; sunk cost bias- emotional tendency to look back and recover the past sunk costs obsessively.

26 Munsinger, H. L. Philbin, D. R. Why Can’t They Settle? The Psychology of Relational Disputes, Cordazo Journal of Conflict Resolution, Volume 18, 2016-2017, p.312

27 Nevertheless, a mediator should be carefull on asking ‘why questions’ which may invoke a feeling of guilt.

Getting in the room

By Sheridan Worldwide

IIt is all very well for HR or Legal to be convinced of the merits of mediation as a dispute resolution tool in the workplace, but that will remain just a good idea unless the parties to the dispute can be convinced to give it a go. This article considers the question of how HR can best get potentially reluctant parties both physically and psychologically “into the room” in the first place.

Our experience has been that most employees or managers fighting shy of mediation are not doing so to be difficult or vindictive, but because they (and perhaps also their advisors) have grown up with the traditional adversarial grievance model which everyone thinks is required by the Acas Code but actually isn’t, and the idea that in every workplace dispute, someone must be right (me) and someone wrong (the other guy). However, the reality is that few grievances at work do

not involve some degree of culpability, perhaps unwitting, on both sides. As a result, while this contentious model will ultimately produce a legal solution, it rarely produces a real one, as the employer generally finds out some time later.

Every case depends on its own facts, but it is not much over-simplifying things to suggest that you will usually persuade people into the mediation room by either carrot or stick.

The carrot for the employee is all the attributes of mediation which attracted HR and Legal to it in the first place, and so which require little rehearsal here – speed, discretion, flexibility, high success rate (over 90% per CEDR’s 2023 Mediation Audit), informality and in particular, the focus on resolution looking forwards rather than blame for the past. Objectively it is hard to see why that would

Caroline Sheridan Tracey Fox

David Whincup

not usually appeal, but any discussion of getting people into the room must recognise early that there are a small number of circumstances where objections to mediation are well-founded and should be respected. They will include in particular where the underlying conduct or dispute is objectively serious and therefore requires action imposed by the employer, not by agreement between employees, or where a party has made clear that he/it will not respect any duties of confidentiality or other key terms of the mediation agreement.

In all the other cases, however, what is your stick? To find that, we need to go back to ordinary principles of employment law, especially the term implied into every contract of employment that you will comply with a reasonable management request. In our submission an employer’s request to deal with a workplace falling-out via mediation in the first instance will generally be a reasonable management request. From the employer’s perspective it is reasonable for all the benefits it can bring (as above), for its extremely limited cost in money and time relative to contested grievance proceedings and in particular because it is far more effective than those proceedings in rescuing a valuable relationship from the rocks of a formal process. Many of the same advantages can benefit the employee too if he comes to it with an open mind. If assured that the formal process is still open to him if the mediation fails, he cannot usually point to any downsides. At heart, all he is being asked to do is have an adult conversation in a “safe space” with another adult about matters to their prospective mutual benefit. Unless your grievance procedure is contractual, therefore, the proposal to treat a dispute by this alternative route will usually fall squarely within the range of reasonable responses open to you as employer. There is no breach of the law in trying this way forward even if your policy makes no reference to it at all.

That is not to say that a refusal to mediate is automatically misconduct. It must after all be voluntary to some extent and the refusal must be unreasonable. However, if as a result of a party’s refusal to mediate, the relevant issue is not resolved and then someone has to leave or be transferred, the employer must be entitled to have regard to who stood in the way of that possible resolution by an unreasonable failure to mediate, at least as much as to who caused the dispute in the first place. Your stick can consequently be quite heavy if you need it.

The consolidation for Legal and HR in all this carrot and stick approach is that you will generally only have to do it once. Once you have got your parties in the room, their experience is often far more positive than they expected. Even if they do not reach a resolution on the day, they will have gained useful insight into what the other party is thinking which may enable some sort of accommodation to be reached in the following days. They will have seen that no-one leans on them, tells them what to do or decides for them, and that they do indeed have the control which was promised to them. We have never known an organisation to embrace a resolution culture and then move back towards an adversarial approach, and the same is usually true at an individual level too.

Tips for encouraging parties into the room

1. Normalise discomfort and reassure of success.

The idea of inviting a ‘stranger’ to help you to communicate with someone you work alongside, can be challenging or even embarrassing. Mediation is not a soft option but one that requires courage. However, it is certainly less stressful and confrontational than a formal grievance process, let alone litigation. As a process for resolution, mediation works! It is certainly worth giving it a go, not least because there is little lost if it does not work.

2. Individuals decide the resolution, not the business.

Despite their best efforts, People Services and Employee Relations can sometimes be seen as a proxy of management rather than support for employees, leading to distrust. A neutral third party facilitator means conversations and outcomes are truly owned by the individuals involved. Without internal dynamics or bias forcing a particular result, no-one comes out of mediation saddled with an outcome they cannot live with.

3. Feel the power!

Stress the autonomy mediation providesan employee cannot be made to meet anyone he doesn’t want to, doesn’t have to be questioned by “the other side”, can call breaks, discloses only what he wishes and has the absolute right to leave the process at any time. None of those is necessarily true for a grievance, where relatively speaking the employee is handing control of his dispute to the employer.

With the opportunity to sit in the room, speak their own truth, and hear from the other side, they can address differences and feel seen and heard by each other. This is the start of the journey to establishing a better future.

A Crisis of Feedback?

By Mia Forbes Pirie

“Your work is shit” is a phrase that Steve Jobs is known for saying. When asked about it, he would explain that his colleagues knew how much he respected them and how brilliant they were so they just needed to know what they were doing wrong.

Most of us wouldn’t want to hear feedback delivered that way. In fact, in certain contexts it might be considered bullying. But have we gone too far the other way? My work with teams, leaders and some family businesses suggests that we may be experiencing a crisis of feedback. It is not infrequent in my mediations to hear that people are struggling both with giving and receiving feedback. So much so, that I have started training people on it. If organisations had better training on feedback and having difficult conversations and built solid cultures of feedback, I believe there would be less serious conflict and fewer mediations. Where there are mediations, many would be far easier and less painful to resolve as the learning curve would be less steep.

I recently heard from someone who was shocked that a polite and thoughtful letter complaining about someone’s quite egregious behaviour had been sent to them directly rather than just to HR. You may be nodding in agreement with that but when did we start thinking that it was better to say things behind people’s backs than to their faces? I encounter a lot of issues with this in mediations. People have complained anonymously to managers who have tried to subtly pass on the feedback to the person it was about. That person then thinks that the manager “has it in for them” when actually, they are just the messenger but they can’t say that. So, the proverbial messenger gets “shot”. Or people saying “I don’t really understand what the complaint is about” as they have not heard it directly.

Having read The Coddling of the American Mind, I can’t help but wonder whether this is something that we are inheriting from Gen Z or iGen who, along with the generations around them, are influencing the workplace in some very interesting

Mia Forbes Pirie

ways. Some for the better and others not. Although we may need to wait for history to give us an overall verdict.

This goes beyond the workplace and is pervading our culture. For example, teachers in private schools now also have to be careful what they say in the children’s reports lest parents get upset that their children are behaving or doing less perfectly than they would like to hear. Given the fierce competition between independent schools, many of which charge more than the average British person’s salary for a year’s education, it is unsurprising that there is a lot of pressure on teachers to keep parents happy. But is that really what is best for children? It is certainly a far cry from Boris Johnson’s school report noting that “. . . Boris sometimes seems affronted when criticised for what amounts to a gross failure of responsibility (and surprised at the same time that he was not appointed Captain of the School for next half): I think he honestly believes that it is churlish of us not to regard him as an exception, one who should be free of the network of obligation which binds everyone else.” Would you not rather know that about your child early on than not?

In the context of this article, there are two things to note from that quote:

1. It was unusual for someone to be affronted when criticised for something serious, and

2. School reports were direct and let parents know clearly where the issues were.

Is it a sign of the times? Is all feedback going to be watered down into insignificance? And if so, how will anyone ever learn?

Feedback is crucial to our development. We need it to grow. If you want to get ahead in your career, you should be wanting feedback. That is what is going to make the difference. Organisations that do well tend to have a culture of feedback, where giving and receiving feedback is the norm but they may be becoming rarer as people seem to get more and more upset if their feedback is less than glowing.

There is no learning without feedback. So why are we trying to stop it?

Of course, sometimes feedback can sting. And, of course, we want to be kind and respectful with our feedback. But when did kindness and respect become equated to not saying anything, to letting people live in bubbles of ignorance about how they can be doing things better? To hampering their growth?

We are so afraid of hurting people’s feelings that we are on the verge of being disrespectful to them and stunting their growth. In an environment where people do not routinely give each other direct constructive feedback, issues fester unspoken until they escalate to the level of more serious problems. What should be a small friendly discussion on a regular basis has grown into greater conflict that requires mediation and sometimes then working on team dynamics and culture change.

This is the opposite of the old adage “a stitch in time saves nine”. It means that instead of growing step by step, and becoming accustomed to receiving feedback so that they can continue to grow, people must grow far more painfully in spurts. They must either figure things out on their own

or wait to fail at a bigger level and then go through a more serious process to point out their shortcomings. This tends to hurt everyone and affect everyone’s self-esteem and selfconfidence. It weakens people and weakens the organisation overall.

Far from being disrespectful, giving good feedback in a constructive way is respectful of everyone and deeply caring. Not only does it help people to grow their skills and capabilities in the present, but it also helps them learn how to receive feedback more generally and so learn to grow in the future. If we were to teach younger people how to receive feedback it would set them up to grow and perform better for life.

Giving and receiving good feedback also gets us out of the toxic perfectionism which is becoming quite pervasive and which covertly, unreasonably and destructively suggests that we should arrive in the workplace perfect and fully-formed instead of being the works in progress that we are, ready to learn and grow further.

Building a culture of feedback helps in a number of ways. It reduces serious conflict and friction, or at least makes workplace conflict and mediations which do arise less severe and easier to resolve. It builds a happier and healthier workplace with better teams, more trust and more communication. And it enables people to grow and develop.

The idea of a culture of feedback may seem difficult at the moment, as there seems to be a move towards erring on the side of making sure we do not upset anyone. As a result, there can be a lot of walking on eggshells.

We need to avoid the situation where people end up in seemingly blissful but often quietly uncomfortable bubbles of ignorance about how they are doing and how they could do better. Particularly when they could be doing better and this goes unspoken, the whole team can suffer as other colleagues end up having to pick up the slack for people who are underperforming. Problems between colleagues do not live in a box. They affect the team.

Resentments start to build and the culture of the organisation becomes affected. No one is prepared to prick that bubble. They are too afraid of the consequences if they do. But they are not taking into account the consequences if they do not: a lot of unnecessary pain and conflict.

Even on a personal level, I would go as far as to say that assuming that someone is not significantly robust to hear something reasonable, measured and constructive about their performance is disrespectful to them. It suggests no capacity to get through feeling discomfort and repeating that assumption actively stunts their capacity to feel discomfort. It feeds into a false narrative about their fragility. It stunts their growth and actively makes them weaker.

You may be saying to yourself that we should just be giving positive reinforcement and nothing negative. There is good evidence that positive feedback is excellent and highly motivational. And it is wonderful when people can be encouraged. But we need to develop the ability to hear that there are certain things that we could be doing better. This for a number of reasons. First, and perhaps most importantly, not everyone is a genius wordsmith able to turn everything into

an unadulterated positive and it is not an easy skill to learn. So, if we are to wait for that, many valuable opportunities for feedback will go untapped. Secondly, I’m not sure that only giving positive feedback, no matter what, always works.

The thing about feedback is that, delivered well and explained properly, it does not need to hurt much and the benefits soon become apparent. In good cultures of feedback, people realise the benefits for their growth and appreciate a happier and more effective workplace. Overall conflict is reduced and where there is serious conflict and mediation is necessary, it is easier to resolve as there is a framework of values and skills which can be referenced and drawn upon.

Coming back to the influence of GenZ. According to the Coddling of the American Mind, among other, the children of GenZ/ iGen have had less time playing together unsupervised than previous generations. Play is by its nature voluntary. It helps people learn social skills and how to sort out interpersonal issues for themselves. These generations are less able to do this and are more likely to appeal to authority. I think there has been a gradual move in that direction taking us to a place where people might now think that it is odd to let someone know directly that you have issues with their behaviour. We are all influenced by this. For workplaces to be healthy, this needs to change.

We need to build cultures where feedback is the norm, where it is expected and even welcomed. We need to build and rebuild this social muscle. This may initially be hard or uncomfortable but it is worth it. If you add to this learning to have difficult conversations and truly embed both in the organisation’s culture you will be “cooking on gas” as the expression goes.

Leaders in particular need to learn these skills. Numerous studies show that leaders and senior executives could benefit from better conflict resolution skills and even Brenee Brown says that what leaders need to learn most is how to

have difficult conversations. Learning how to give feedback and how to have difficult conversations results in less conflict in the workplace and fewer mediations needing to take place. Ideally, it starts from the top.

Small steps in this direction can help but, ultimately, meaningful culture change is needed. We want to see cultures where people can move through conflict with minimal effort and have greater confidence and trust in each other. Cultures which fully embrace feedback and learn how to give and receive it do that. Such cultures will also naturally get better at having the difficult conversations which are needed for diverse people to work together well and produce outstanding results. They will be great places to work.

I have been working with UCL to provide free resources to students and the public to develop the skills to have difficult conversations and disagree well. Those resources could be a good first step.

I am seeing too many mediations where people have been torn apart when the pain and suffering could have been avoided if they were better able to give and receive feedback and have better conversations. I hope that this will change.

Mia a mediator, facilitator and coach, she works with leaders, teams and family businesses to help them thrive. She is also working with UCL teaching an online skillsbased course on how to disagree well. For more information see her YouTube channel (https://www.youtube.com/@ miaforbespirie5289) and you can connect with her on Linked In (https://www.linkedin.com/in/miafp/).

THREE WAYS TO HAVE LESS STRESSFUL CONFLICT CONVERSATIONS

By Alexandra Efthymiades, Director and Co-founder, Consensio

Workplace conflict can cause significant anxiety, writes Alexandra Efthymiades, yet conflict conversations can be managed in ways that minimise stress for those who are involved.

Conflict is part of all relationships. Yet when left unaddressed, conflict raises our stress and anxiety levels, and decreases our engagement, productivity, and overall wellbeing.

The knowledge and skills required for conflict conversations can be practiced and learned. They will help with conflict resolution, and also support us in having better relationships at work. Here are three ways to optimise a collaborative and restorative outcome.

1. Look to ourselves

Greater self-awareness allows us to appreciate that we are part of the conflict dynamic – that we contribute and carry some responsibility for the tension in our relationships. It is easy to blame others, but blame doesn’t resolve conflict; it fuels it.

An example of a question that you can ask yourself and others to raise self-awareness is: What is it about this particular situation / relationship that is triggering me, and why?

2. Lead with empathy

Empathy – the ability to imagine the feelings, thoughts, and perceptions of others – enables us to view conflict from multiple perspectives. Empathy allows us to try to understand what others might be going through, and which of their – and our – underlying needs are not being met.

To approach a conflict with more empathy, we can ask: What assumptions am I making about the other person, and how do I know these assumptions are true? What assumptions are being made about me?

3. Positive intent

When we use blame and anger to start a conversation, this is heard as an attack. The reaction is likely to be defensiveness, retaliation, or avoidance. By starting the conversation by stating that the purpose is to be constructive and collaborative, the other person is much more likely to engage with us calmly and productively.

An example of how we can do this is by saying: “I value our working relationship. I feel upset about what was said in the team meeting yesterday. Can we have a chat so that we can both understand what happened?”

By applying self-awareness and empathy, and stating our positive intentions, we reduce the instances of harmful workplace conflict, and replace them with conflict conversations that lead to increased understanding and better relationships at work.

Alexandra Efthymiades

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Churchill v Merthyr Tydfill: Integrating dispute resolution into the management of clinical claims

By Professor Cam Wareham, Arbitrator/Mediator specialising in Healthcare and Life Science disputes, Geurnica37 Chambers, London - email: clerks@guernica37.com

Professor Cam Wareham BSc, PGCert, LLM (Dist), DMedSc, DPodSurg, FCIArb, FRCPodS, FRCPS(Glasgow) is a respected Arbitrator and Mediator specialising in Dispute Resolution, with a focus on areas such as access to Healthcare, Interprofessional disputes, Provider disputes, and Professional Discipline. His expertise extends to handling disputes of a clinical and regulatory nature, showcasing a wealth of experience in navigating complex healthcare-related conflicts.

As a Professor at the University of Sunderland, Cam dedicates his academic pursuits to Health and Medical law.

Holding dual citizenship in New Zealand and Britain, Cam's influence extends globally, with a track record of being regularly engaged as an Expert Opinion in support of Litigation throughout England & Wales, Scotland, ROI, Australia, and New Zealand.

The recent decision of the Court of Appeal in Churchill v Merthyr Tydfill County Borough Council [2023] EWCA Civ 1416 1, confirmed the court’s support of ADR (Alternative Dispute Resolution), answering a number of issues as to it’s place in the litigation process. With it, we enter a new era

whereby dispute resolution becomes further integrated into civil and commercial disputes.

Out of court dispute resolution in the personal injury and clinical negligence space is not new. In many respects, it is common practice for disputes to be resolved well before parties attend Court hearings. The National Health Service reports that of the 13,511 claims in 2022-2023, 80% were resolved outside of court via a range of means. Claims of a clinical and non-clinical nature were resolved with damages paid in 57% 2 The emergence of round-table meetings, negotiated settlement meetings or discussions between experts all contribute to the process designed to circumvent judicial intervention and use of court resources. The decision in Churchill, arguably takes us a step further.

What is significant about the case?

The decision in Churchill clarified the judgement in the earlier case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 3 in which Dyson LJ suggested that obliging parties to engage in mediation and other forms of (A)DR

would obstruct their right of access to a fair hearing before a court and infringe their human rights.

The Court of Appeal in Churchill, clarified whether the court can lawfully stay proceedings, or order parties to engage in ‘out of court’ (Alternative) dispute resolution before proceeding further?

Yes, said Sir Geoffrey Vos, Master of the Rolls with whom Lady Chief Justice Carr and Birss LJ agreed. In doing so, the court ushered in the expectation that parties in dispute do everything reasonably expected of them to settle a dispute before recourse to litigation. With caveats in place to ensure that rights are not breached and that the process is reasonable and proportional in its aim to resolving issues, the court indicated its support for avoiding litigation where possible. Crucially, its decision openly supported the use of (A)DR as a method of using less formal means to resolution of disputes.

The Background

The decision followed the earlier proceedings issued by the Respondent, Mr Churchill. His property was adjoined by land owned by the Appellant (The Council). The Respondent claimed that Japanese Knotweed (a known noxious and invasive weed) had encroached from the Council owned land and into his. He claimed that he lost enjoyment of his property, damage and a reduction in its value.

Mr Churchill issued the initial proceedings. The Council (Appellant) applied for a stay, citing that its own complaint procedures had not been followed. The initial application was dismissed. The court applied the decision of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2004] at [9] in that

“to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on the right of access to the court.”

In its subsequent appeal, the Council raised a number of points, from which three central issues arose. The first was whether Halsey was binding, the second concerned the Court’s ability to stay proceedings or order Alternative Dispute Resolution, the third considered what relevant principles must be considered.

Halsey

The Court of Appeal was asked to consider whether the decision in Halsey was binding. Rather than being considered to be a mere ( obiter ) ‘comment’ made by Dyson LJ, it considered whether it may be considered ratio decidendi, a central themed justification for the decision thereby binding all courts below it. The Court of Appeal held that it was not. Staying the proceedings or ordering parties to attend ADR.

The Court of Appeal was asked to consider Mr Churchill’s submissions.

Churchill argued that his right to bring proceedings could not be circumvented by a requirement to pursue an internal complaints process which would not likely address his concerns.

He argued that no ‘secure statutory footing’ existed to allow such an impediment.

Following, he argued that any statutory impediment could only authorise intrusion to a minimal level sufficient to reasonably fulfil its objective.

The Council (with Intervenors) submitted that the Court may order a stay subject to three criteria.

1. It did not impair the right to a fair trial

2. that it was in pursuit of a legitimate aim

3. that its actions were proportional to that aim In its consideration the Court of Appeal concluded that its authorities derived from within the jurisdiction, the European Court of Human Rights and the EU Court of Justice. It concluded that the court could stay proceedings in lieu of ordering Dispute Resolution, and that the impediment did not require any specific secure, statutory footing.

The relevant principles.

The Court of Appeal held that any Order or facilitation of a particular form of ADR must be at the Court’s discretion. Broad principles for the courts consideration were the merits and demerits of differing ADR methods, the process must not impair the right to a judicial hearing and it must be proportionate to achieving resolution of the dispute in a fair, swift and cost effective manner.

Although a fourth point was raised it subsequently failed. The Appeal (in part) was allowed, its decision heralding a clear sign of the courts position on the place of mediation (and other forms of dispute resolution) in the claims process.

The Importance of the decision to ADR

Whilst some may have been disappointed that the decision of Vos MR in Churchill fell short of specifying mediation (or any other form) as the preferred method of dispute resolution, others agree that the decision allows flexibility and avoids a ‘one size fits all’ model 4,5. In doing so, Vos MR empowered courts to maintain some control in tailoring the form of resolution to meet the needs and wishes of the parties in dispute.

The decision escapes further criticism of ‘the introduction of mandatory mediation’. Whilst seen as an attempt to keep parties out of court in smaller actions such as those falling under the Small claims protocols, mandatory mediation has been criticised as bringing together unwilling parties in a ‘watered down’ attempt to resolve issues both damaging the reputation of mediation and the confidence of parties 6

The more strategic ‘open’ approach of the court of appeal, avoids this concern allowing for Dispute Resolution to become rather less ‘alternative’ and more integrated or inclusive as a mechanism in the overall resolution of claims, whether through the court or other means.

What impact does the decision have on clinical negligence and practice and the requirement to mediate (or undertake other forms of Dispute Resolution)?

Proponents of mediation cite it as being helpful in allowing parties to take control and ownership of their dispute, allowing novel methods of resolution to be tabled, allowing

the possibility of apology or explanation to be given and issues to be agreed or put aside for further discussion. Many mediations settle on the day or soon after. The use of court time is significantly reduced 7

As the courts move forward in its support of Mediation, others have taken a different view. Detractors often point to the lack of power of the Mediator to offer a binding decision, the inability to compel parties to present themselves, or witness/evidence in support of their case and the potential to add an unfruitful or unnecessary step in the process 8 .

In part, some of the concerns will be ameliorated by the Court’s open support of ADR and its power to stay proceedings or order parties to mediation. However, it remains as to whether court ordered mediation will meet its objectives. What will be interesting, is whether Courts accept the new decision as being a tool in their armamentarium to dispose of cases, putting the onus back on to parties. Or whether they will be reticent to impose mediation or ADR for all and every case going forward.

What does it mean for the Expert Witness?

It is unlikely that Experts will be called to a mediation session (unless they are needed to explain a particularly technical or complex piece of evidence). It is likely that mediation will continue without the Expert and be focused on the positions put forward by the parties counsel (as remains the case currently). It is uncommon for Experts to attend anything other than meetings with their own party or where they are called before court. Counsel prefer to negotiate with other Counsel, to a point where some remain uncomfortable with the claimant in the room.

What about other forms of ADR?

Courts within the Civil Procedure rules have always been able to order that parties narrow the issues by either round table meetings or by Experts meetings. The new ruling takes matters a step further.

Currently, facilitated negotiation or mediation relates to a structured meeting in which a mediator attempts to move parties from ‘zero sum’ 9 positions to meeting the needs (or interests) of parties. Counsel play a crucial role in these negotiations, often buffering the emotion, the expectations and practicalities of parties individual positions. It is often helpful when voices need to be heard, emotions and the ‘impact’ of the event needs to be ‘realised’. It is helpful where parties wish to see the other sides response to their concerns. The power in mediation is that almost any dispute can be mediated and for the most part, the profession of the mediator is irrelevant when compared with their skills in facilitation of discussion. The NHS Resolution scheme provides this opportunity for parties in dispute, using a small number of mediators who contract their services. The challenge for non-lawyer mediators however, remains that (despite the very technical nature of clinical complaint) lawyers tend to trust lawyers, even where a technical expert may have the requisite skills in both medicine and law. A criticism of the NHS scheme therefore, is inclusion of very small numbers of mediators who come with a healthcare background.

Evaluative mediation, provides a more nuanced approach.

Whilst not able to compel parties to mediation, or provide a binding decision, the Evaluative mediator provides parties with a greater understanding of the merits of their claim. This may serve to provide parties with a more realistic understanding of their position, whether clinical negligence has occurred or whether quantum may be realistic. Whilst still a form of ‘mediation’, evaluative mediation provides a flexible and informal forum for parties to discuss matters with a skilled professional, who is in a position (often through qualification) to make a reasoned and close approximation to the value of the claim. It does however require a mediator to possess a number of skills, including facilitation, mediation, evaluation, clinical and legal skills. With smaller numbers of individuals having such an array of skills, evaluative mediation might be best reserved for very technical cases or recalcitrant parties who would benefit from the insight into the merits of their claim other than solely from their own advocates.

Early Neutral Evaluation (ENE), whilst useful in early claims or highly technical claims, is unlikely to feature heavily in the armamentarium of the Courts. Often conducted solely as a ‘paper exercise’ the evaluator is able to provide answers to discrete matters. Parties do not attend meetings and do not have an opportunity to air their grievance. Expert Witnesses who hold training in ‘evaluation’ and an understanding of the fundamental legal aspects of a claim may find their skills called upon more frequently at the pre-action stage, especially where ENE can be useful. Where the success or failure of dispute resolution turns on a technical aspect, ENE provides an opportunity for parties to provide evidence and an ‘opinion’ at an early stage in support of their claim with the purpose of heading off lengthy disputes over discrete but important issues. Whilst non-binding, the opinion of the Evaluator is persuasive and as such may carry significant weight in the eventual decision.

Arbitration of clinical disputes remains a final option although it is less common in England and Wales, Scotland, and Northern Ireland, than it is in the United States. As a very formal, binding decision process, it is more likely to be applicable to disputes relating to contracts, Healthcare and Life Sciences. Provided parties agree, Arbitration before a skilled legal and technical panel can be used with great success. Arbitration, having closely related judicial methods follows a similar procedure to Court. A panel or sole Arbitrator sits, hearing the case following procedural orders, evidence presented as written or oral testimony, examination and cross examination culminating in a ‘judgement’ known as an Award. Enforceability is possible through the application of legislation (Arbitration Act 1996) . One might reasonably question the use of Arbitration given its proximity in style to a Court hearing. Arbitration does however carry a number of benefits over traditional court hearings. Procedures may be scoped by the parties, rules of evidence can be applied in a bespoke manner and the panel is frequently chosen by the parties for their expertise in both legal and technical skills. In the clinical negligence or quantum arbitration, the panel may consist of a medical professional, a legal practitioner and/or a patient representative . Despite its usefulness, Arbitration is likely to apply only in cases of a very technical matter, a large multi-national dispute (where international

suppliers of drugs or products are party to the action), or an issue of quantum.

The decision in Churchill, has recognised the usefulness of (A)DR as an integrated tool in the management of civil claims through the judicial system. Its proponents cite high rates of satisfaction and success. Whilst less likely that Expert Witnesses will take an active part in mediation, their evidence may form an important part of the resolution process. Alternatively, their opinions may be expanded to ENE, proving useful in contributing to the early resolution of claims.

For Experts interested in Mediation training, SpecialistInfo offer accredited Mediation Foundation training over 5 days with the Society of Mediators. See link below for upcoming courses and more information: www.specialistinfo.com/mediation-course

References:

[1] https://www.judiciary.uk/wp-content/uploads/2023/11/Churchill. APPROVED-JUDGMENTS-2.pdf

[2] NHS Resolution, Annual Report and Accounts 2022-2023 (NHS Resolution 2023) https://assets.publishing.service.gov.uk/ media/64c7c912d8b1a70011b05dfe/NHS-Resolution-Annual-report-andaccounts-2022-2023-web-accessible.pdf

[3] https://vlex.co.uk/vid/halsey-v-milton-keynes-793673961

[4] The Law Society: Why We Intervened in Churchill-v- Merthyr Tydfil (11 December 2023) https://www.lawsociety.org.uk/topics/civillitigation/why-we-intervened-in-churchill-v-merthyr-tydfil

[5] CIArb: Joint Intervention Success as Churchill judgement allows the courts to order parties to mediate (29 November 2023), https:// ciarb.org/news/joint-intervention-success-as-churchill-judgment-allows-thecourts-to-order-parties-to-mediate/

[6] Lawyer Monthly: The Pitfalls of Compulsory Mediation (30 November 2021), https://www.lawyer-monthly.com/2021/11/the-pitfallsof-compulsory-mediation/

[7] Bogdanoski, Tony, Medical Negligence Dispute Resolution: A Role for Facilitative Mediation and Principled Negotiation? (2009). Australasian Dispute Resolution Journal, Vol. 20, No. 2, pp. 77-87, 2009 , Available at SSRN: https://ssrn.com/abstract=1438472

[8] Bennett, C. When mediation doesn't work. BDJ In Pract 36, 37 (2023). https://doi.org/10.1038/s41404-023-2049-z

[9] Zero Sum – ‘used to refer to a situation in which any win by one person always means a loss to another person involved’ - https:// dictionary.cambridge.org/dictionary/english/zero-sum

[10] Arbitration 1996: https://www.legislation.gov.uk/ukpga/1996/23/ introduction

[11] Wiradisuria, E.R., Susatya, D.H. and Bhawono, A., 2020, March. Arbitration as an Alternative to Non-Litigation Settlement in Medical Cases. In International Conference on Law Reform (INCLAR 2019) (pp. 121-125). Atlantis Press.

Benefits of Mediation:

Confidential...

‘Your discussions with mediator are not shared without your consent’

Voluntary...

Flexible....

Timing and agenda to suit your needs

All parties agree to participate to try

Low costs....

Fixed fee which is far cheaper than court.

Control

... You agree the outcome, solution and any agreement

Quick..

‘ Mediation can be completed within 14 days’

Impartial....

The mediator does not judge or take sides

Additional in Workplace:

Retention/ Recruitment

Mediation ensures disputing parties feel understood and heard. Ideal for emotionally charged disputes, mediation can calm the conflict driving the dispute whereas adversarial argument and positioning inflames and drives conflict and escalates disputes.

Mediation can help parties to agree a solution, draw a line and move forward or continue relationships between business partners, employees and employers and friends, neighbours and family. It can salvage and protect reputations.

Litigation is expensive and can take years and frequently the costs exceed the value of the dispute.

Less Stress...

Simpler process than litigation/court

Improves teamwork/ productivity/ profitability

Jean McDougall

e: jean.mcdougall@focuscivilmediation.co.uk

w: www.focus-mediation.co.uk

t: +44 (0)7706 705149

MEDIATION JOURNAL U K

DIRECTORY

(1) MEDIATION PROVIDERS

(2) TR AINING PROVIDERS

(3)INTERNATIONAL MEDIATION PROVIDERS

MEDIATION PROVIDERS

CONSENSIO

t: +44 (0)20 7831 0254 e: alex.efthymiades@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 30 Niton Street, London, SW6 6NJ Contact: Alex Efthymiades

Consensio is a leading workplace mediation provider, helping organisations to manage workplace conflict. Our services include: 1) mediation and conflict resolution training ranging from taster events to accredited training, 2) external mediation services for two-party and team disputes, 3) conflict coaching and 4) consultancy services to transform organisational responses to conflict.

FOCUS MEDIATION

t: +44 (0)1908 231 132 e: mary@focus-mediation.co.uk w: www.focus-mediation.co.uk

Contact: Mary Banham-Hall

Focus Mediation is a CMC Registered Provider, established in 1999 we cover the whole of the UK and handle all types of mediation cases.. We have a team of fully accredited Workplace, Civil/ Commercial and Family mediators with a wide range of professional backgrounds, ensuring you can choose the right specialist mediator for your dispute. We can help with all types of workplace and employment problems, our team have handled cases involving from 2 to 50+ people and can tailor the right programme to meet your needs saving you management time and costs...

GARDEN COURT MEDIATION

t: +44 (0)20 7993 7600 e: mediationclerks@gclaw.co.uk w: gardencourtmediation.co.uk

a: 57-60 Lincoln’s Inn Fields, London WC2A 3LJ Contact: Lavinia Shaw-Brown

We offer a flexible, high-quality mediation service from the initial inquiry through to facilitating agreement. We have a team of experienced, professional mediators with the interpersonal skills to suit all civil, commercial, workplace and family disputes. Our aim is to help you find a resolution to the dispute quickly and effectively.

INMAN COX MEDIATION

t: +44 (0)798 537 3010 e: james@inmancox.com w: www.inmancox.com

Established for over 5 years, Inman Cox Mediation are specialist workplace resolution mediators. We provide expert advice, mediation and co-mediation services as well as on-going support and training .ICM provides organisations with the tools needed to resolve future disputes and help prevent them from arising in the first instance. Working with a select number of organisations we work with HR professionals to get disputes resolved quickly. Our experience has led us to develop a number of bespoke training packages to deal with team dysfunction. Contact : James on 07985373010 or james@inmancox.com for a free consultation. www.inmancox.com

INDEPENDENT MEDIATORS

t: +44 (0)20 7127 9223 e: imoffice@independentmediators.co.uk w: www.independentmediators.co.uk

Launched in 2007, Independent Mediators (IM) is a leading UK and international mediation chambers. IM were awarded Who’s Who Legal Mediation Firm of the Year 2019 in May 2019. We manage the practices of nine of Europe’s leading full-time civil and commercial mediators; Charles Dodson, Phillip Howell-Richardson, Kate Jackson, Michel Kallipetis QC, Jonathan Lloyd-Jones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor. All nine mediators feature in the top tiers of the leading legal directories. They have mediated in excess of 8,500 matters between them in their careers. The commercial disputes mediated range in value from tens of thousands to multi-billion pounds and include almost every sector of business and law with parties from all over the UK and internationally.

IPOS MEDIATION

t: +44 (0)333 014 4575 e: info@mediate.co.uk w: www.mediate.co.uk

a: The International Dispute Resolution Centre, 1 Paternoster Lane, London EC4M 7BQ

Contact: Joanne Claypole

Leading UK and International Mediation Chambers established in 1995. Handling civil, commercial, family, workplace and employment disputes. Our mediators have, between them, mediated thousands of disputes and many of our members are recognised as expert mediators by the legal directories. In addition, we offer a full case administration service; from helping the parties select a mediator to arranging the date, venue and paperwork necessary to make your mediation as smooth and as successful as possible.

JAMS INTERNATIONAL

t: +44 (0)20 7583 9808 e: mrushton@jamsadr.com w: www.jamsadr.com

JAMS is the world’s largest private provider of ADR services with a caseload of around 15,000 disputes a year. Its London office provides arbitrators and mediators for cross-border and UK domestic disputes as well as administering international arbitrations in various sectors.

KARIMA FAHMY, FOUNDER & MEDIATOR, THE INDEPENDENT NEUTRAL

t: +44 7958 973 389 e: karima.fahmy@independentneutral.com w: www.independentneutral.com

Karima is a CEDR accredited and CMC registered Civil, Commercial and Workplace mediator. Having practised as a Corporate lawyer for over 20 years, Karima has extensive experience of helping parties resolve their differences and reach mutually satisfactory outcomes. Karima’s mediation practice is focussed on employment and workplace disputes; real estate and construction disputes; joint venture, shareholder and board disputes. Prior to sitting as a mediator, Karima was General Counsel of an international real estate investment and development business. Prior to that she spent 10 years at Hogan Lovells. Karima brings experience of navigating complex and sensitive commercial and stakeholder contexts.

KINGSWAY LAW

t: +44 (0) 7825 894 893 e: larry.george@kingswaylaw.uk w: linkedin.com/in/larry-george-b9114a46 w: P.O. Box 516, Cambridge CB1 0BD Contact: Larry George

Qualified Barrister; CEDR accredited mediator, 2010. Larry has 30+ years of experience as a commercial legal adviser advising on corporate and commercial matters. He has specialised in the oil business including oil trading but also has a great deal of experience in general commercial areas including in contracts, terms of trade and related disputes. Mediation experience includes franchising, engineering contracts and professional negligence. Larry has wide international experience and is a fluent Russian speaker.

t: +44 (0)7957 8 12345 e: mia@miaforbespirie.com w: www.miaforbespirie.com

Mia Forbes Pirie is a mediator, executive coach and trainer. She works with teams, boards and directors, family businesses and individuals in conflict. Mia helps people to work better together and communicate under pressure. In addition to commercial clients, she has worked with MPs, governments, religious organisations, NGOs, and charities. Mia provides training online and in person. She is writing a book and working with UCL to help people Disagree Well. For more information see: www.miaforbespirie.com and her YouTube Channel : @miaforbespirie5289

THE MAVERICK MEDIATOR - TM DEVELOPMENT ASSOCIATES LIMITED

t: +44 7905 868 058 e: tony@achievesuccess.org.uk w: www.maverickmediator.co.uk

Anthony Munday is an independent ACAS-accredited workplace mediator. He specialises in working with conflicted Senior Teams. His previous career as a detective and senior leader enables him to empathise with clients in senior management positions. He has developed a unique Conflict Resolution Method. Anthony works in partnership with HR Leaders to conduct a root-cause analysis of the impact of conflict in the organisation. The financial and human costs of conflict for the client are extrapolated. They use the client’s own data to create an inclusive and holistic Action Plan to mitigate future Risks and Costs.

PROMEDIATE (UK) LIMITED

t: +44 (0)20 3621 3908 w: www.promediate.co.uk

ProMediate provides mediation for the whole range of civil and employment disputes as well as being a CMC Registered Training Provider. We also resolve disputes between traders and consumers under the ADR Regulations. We have a panel of over 50 mediators available to mediate online by telephone or in person throughout the UK and in the EU.

ROGER LEVITT

t: +44 (0)7776 141 717 e: roger@rogerlevittmediation.co.uk w: www.rogerlevittmediation.co.uk

I undertake all types of commercial mediation including: Property, Construction, Partnership, Corporate, Professional Indemnity, Insurance Financial & Wills. Member of Civil Mediation Council Registration Committee. I’m approaching 100 mediations.

MIA FORBES PIRIE

STILLHR

t: +44 (0)7932 762 448 e: robert@stillhr.com w: www.stillhr.com Contact: Robert Still Qualified workplace and team mediators. Robert Still FCIPD, Leye Oladapo and Paula Symons. Over 10 years’ experience across the UK and Europe. CMC Registered Mediation Provider 2019. Resolving individuals and team conflict.

SHERIDAN WORLDWIDE

t: +44 (0)20 3753 5350 e: caroline.sheridan@sheridanworldwide.com w: www.sheridanworldwide.com

Contact: Caroline Sheridan

At Sheridan, we help organisations worldwide maximise their potential and drive lasting change by providing the guidance and inspiration necessary for their people to succeed. Our award-winning work focuses on tailored one-to-one, team and group coaching to support the development of leadership and management capabilities, as well as mediation and conflict resolution interventions across the business. Our specialists in organisational culture, wellbeing, inclusion and team dynamics partner with clients to ensure a tailored approach. We supply our coaching and mediation services in the UK and internationally through our extensive faculty based around around the world in all key locations.

THE TCM GROUP

t: +44 (0)20 7092 3186 e: david.liddle@thetcmgroup.com w: www.thetcmgroup.com

TCM are a leading provider of conflict management, mediation, HR and leadership training and consultancy. We deliver tangible benefits to our customers by transforming conflict and change from a threat into an opportunity. For more details, please Read Managing Conflict (Kogan Page/ CIPD) available from https://amzn.eu/d/4jRZ7mB written by TCM’s CEO David Liddle.

t: +44 (0)7305 062 578 e: askforhelp@werestorecalm.com w: www.werestorecalm.com

At We Restore Calm, we recognise the growing impact of mental health challenges and conflicts in the workplace. We specialise in comprehensive mental health training, including Mental Health First England certified courses. We also offer state-of-the-art conflict resolution solutions ranging from executive coaching, mediation, to team workshops and neutral evaluations. The goal? To empower organisations like yours to enhance employee engagement, reduce absenteeism, and, in turn, boost overall productivity. Think of us as the catalyst to not just elevate your workplace atmosphere but also positively impact your bottom line. Let’s foster a resilient, harmonious, and productive environment together.

WE RESTORE CALM

MEDIATION TRAINING PROVIDERS

CONSENSIO

t: +44 (0)20 7831 0254 e: alex.efthymiades@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 30 Niton Street, London, SW6 6NJ Contact: Alex Efthymiades

Consensio is a leading workplace mediation training provider, helping organisations to manage workplace conflict. Our services include: 1) mediation and conflict management training, ranging from taster events to accredited training, 2) external mediation services for two-party and team disputes, 3) conflict coaching and 4) consultancy services to transform organisational responses to conflict.

THE MAVERICK MEDIATOR - TM DEVELOPMENT ASSOCIATES LIMITED

t: +44 7905 868 058 e: tony@achievesuccess.org.uk w: www.maverickmediator.co.uk

We are developing CPD-accredited training courses. Employment Conflict Resolution ACAS estimates the cost of workplace conflict as £28.5 billion per year in the UK. Do you know the costs in your organisation? We have developed a coherent and sustainable strategy that empowers you to mitigate the costs of workplace conflict. We use a root-cause analysis methodology using your data sets. Real-time. Real life. Working together with your People Team and the C Suite we create a realistic Action Plan that you implement. We support you moving forward, to embed the learning and cultural change.

PROMEDIATE (UK) LIMITED

t: +44 (0)20 3621 3908 w: www.promediate.co.uk

ProMediate provides mediation for the whole range of civil and employment disputes as well as being a CMC Registered Training Provider. We also resolve disputes between traders and consumers under the ADR Regulations. We have a panel of over 50 mediators available to mediate online by telephone or in person throughout the UK and in the EU.

STILLHR

t: +44 (0)7932 762 448 e: robert@stillhr.com w: www.stillhr.com Contact: Robert Still

Facilitated Conversations and Mediation Skills; delivered in-house by qualified and practicing workplace mediators, tailored to client organisational context, includes role play simulations using professional actors.

THE TCM GROUP

t: +44 (0)20 7092 3186 e: david.liddle@thetcmgroup.com w: www.thetcmgroup.com

TCM are a leading provider of conflict management, mediation, HR and leadership training and consultancy. We deliver tangible benefits to our customers by transforming conflict and change from a threat into an opportunity. For more details, please Read Managing Conflict (Kogan Page/ CIPD) available from https://amzn.eu/d/4jRZ7mB written by TCM’s CEO David Liddle.

INTERNATIONAL MEDIATION PROVIDERS

CONSENSIO

t: +44 (0)20 7831 0254 e: alex.efthymiades@consensiopartners.co.uk w: www.consensiopartne rs.co.uk a: 30 Niton Street, London, SW6 6NJ Contact: Alex Efthymiades

Consensio is a leading workplace mediation and conflict management provider, supporting organisations to informally manage workplace conflict in the UK, Europe and Asia.

t: +44 (0)333 014 4575 e: info@mediate.co.uk w: www.mediate.co.uk

a: The International Dispute Resolution Centre, 1 Paternoster Lane, London EC4M 7BQ

Contact: Joanne Claypole

Leading UK and International Mediation Chambers established in 1995. Handling civil, commercial, family, workplace and employment disputes. Our mediators have, between them, mediated thousands of disputes and many of our members are recognised as expert mediators by the legal directories. In addition, we offer a full case administration service; from helping the parties select a mediator to arranging the date, venue and paperwork necessary to make your mediation as smooth and as successful as possible.

INDEPENDENT MEDIATORS

t: +44 (0)20 7127 9223 e: imoffice@independentmediators.co.uk w: www.independentmediators.co.uk

Launched in 2007, Independent Mediators (IM) is a leading UK and international mediation chambers. IM were awarded Who’s Who Legal Mediation Firm of the Year 2019 in May 2019. We manage the practices of nine of Europe’s leading full-time civil and commercial mediators; Charles Dodson, Phillip Howell-Richardson, Kate Jackson, Michel Kallipetis QC, Jonathan Lloyd-Jones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor. All nine mediators feature in the top tiers of the leading legal directories. They have mediated in excess of 8,500 matters between them in their careers. The commercial disputes mediated range in value from tens of thousands to multi-billion pounds and include almost every sector of business and law with parties from all over the UK and internationally.

PROMEDIATE (UK) LIMITED

t: +44 (0)20 3621 3908 w: www.promediate.co.uk

ProMediate provides mediation for the whole range of civil and employment disputes as well as being a CMC Registered Training Provider. We also resolve disputes between traders and consumers under the ADR Regulations. We have a panel of over 50 mediators available to mediate online by telephone or in person throughout the UK and in the EU.

THE TCM GROUP

t: +44 (0)20 7092 3186 e: david.liddle@thetcmgroup.com w: www.thetcmgroup.com

The TCM Group designs and delivers award winning mediation, conflict management, employee relations and leadership consultancy in the UK and globally. We can deliver assignments across the world, often at short notice. Our fully accredited mediation, investigation and leadership training programmes can be adapted to meet your political, legal or cultural context. Our highly experienced tutors, mediators and facilitators are available to support you at every stage of your resolution journey plus, we apply industry leading technology to support our assignments. Please contact us now on +44 207 092 3186 for more information and a no obligation discussion.

IPOS MEDIATION

The Medico-Legal Conference has now firmly established itself as the UK's leading event bringing together medico-legal professionals, industry experts, and suppliers. Attend to experience our high-level programme of speakers, interactive exhibition zone, and networking. The conference takes place at Congress Centre, London on Thursday 12th June 2025. Book now and benefit from our 30% off early bird offer Be nefits of Atte nding:

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1 ST JULY 2024, CONGRESS CENTRE LONDON

OFFICIAL CONFERENCE GUIDE

ORGANISED BY:

HEADLINE SPONSORS:

SUPPORTED BY:

Programme

1st July 2024, Congress Centre, London

9:00am - Badge Collection

9:45am - Keynote: How mediation is transforming work

David Liddle, Chief Executive, TCM Group

10:30am - Morning Break and Networking

11:00am - How workplace conflict has changed, and what you can do about it

Alex Efthymiades, Director, Consensio Partners

11:45am - Getting in the room!

Caroline Sheridan, CEO and Mediator, Sheridan Worldwide

Tracey Fox, CMediator, CEDR and Sheridan Worldwide

David Whincup, Partner and Employment Lawyer, Squire Patton Boggs

12:30pm - A crisis of feedback? Could feedback change the world?

Mia Forbes Pirie

1.15pm - Lunch and Networking

2.15pm - Integrated Mediation and how it will impact the workplace

Dionne Dury, Module Leader, Employment Law, EDI Director at UEA & Chair of CMC’s Workplace & Employment Committee

3.00pm - Dispute Risks with AI and IP Infringement

Clive Bonny, Director, Strategic Management Partners

3:45pm - Afternoon Break and Networking

4:30pm - I am because you are Kheron Gilpin, Tutu Foundation UK

5:15pm - Closing Comments

Session Summaries

9:00 am

BADGE COLLECTION

9:45 am

KEYNOTE: HOW MEDIATION IS TRANSFORMING WORK

David Liddle, Chief Executive, TCM Group

In his keynote, David will examine the ways that transformative approaches such as mediation, coaching and facilitation are being used to resolve a wide range of workplace, employment, and business disputes. David will draw on his 20+ years’ experience of embedding workplace mediation and resolution programmes across organizations such as the BBC, UK Civil Service, TFL, Burberry, NEXT PLC, Aviva, TSB Bank, The Metropolitan Police and numerous hospitals, universities, and police forces. In his keynote, David will set out his blueprint for a purpose driven, values based and person-centred work culture. His Transformational Culture Model™ is being adopted by numerous organisations and it has recently been adopted by NHS England and is being rolled out to Integrated Care Systems (ICSs) across the UK. David will also introduce his Culture Catalysts™ program which is helping to deliver culture change programmes across the NHS. David is passionate about developing progressive systems for managing workplace issues systems which are fair, just, restorative, inclusive, and sustainable. He will examine how his unique application of transformative justice is being used as a foundation for his award-winning Resolution Framework™. David’s groundbreaking approach to dispute resolution is being used to replace the broken and divisive grievance, discipline, performance, bullying, and whistle blowing policies in organizations in the UK, the US and globally. David has coined the term ‘Integrated People Policy (IPP)’ to describe this approach, and his work, which for so long was seen as radical and ahead of its time, is now becoming mainstream and recognised as best practice. David will propose that, to make mediation truly mainstream, we must be more courageous. He will urge anyone who is concerned about creating human and humane workplaces to challenge the existing rules-based systems which are proven, beyond reasonable doubt, to be destructive, pernicious, retributive, adversarial, corrosive, reductive and divisive. He will suggest that mediators have a responsibility to deliver real leadership at a time where so many are advocating division, dogma, and danger.

10:30 am

MORNING BREAK AND NETWORKING

11:00 am

HOW WORKPLACE CONFLICT HAS CHANGED, AND WHAT YOU CAN DO ABOUT IT

Alex Efthymiades, Director, Consensio Partners

There are ways in which workplace conflict has changed, and this is impacting individuals and organisations. This session explores some of the trends we are observing in our work as conflict specialists, and how these trends may have come about. We will also discuss what we, as conflict management professionals and business leaders, can do to support our teams to navigate conflict and build stronger relationships at work.

11:45 am

GETTING IN THE ROOM!

Caroline Sheridan, CEO and Mediator, Sheridan Worldwide; Tracey Fox, Mediator, CEDR and Sheridan Worldwide; David Whincup, Partner and Employment Lawyer, Squire Patton Boggs

You have bought into the principles and benefits of mediation in the workplace but are faced on the ground with doubters and sceptics brought up with traditional adversarial dispute resolution procedures and reluctant to try anything different. What can you say to persuade them to get in the same room, both figuratively and physically? What leverage do you have, what assurances can you give, how far can you insist on mediation as a first resort?

Session Summaries

12:30 pm

A CRISIS OF FEEDBACK? COULD FEEDBACK CHANGE THE WORLD?

Mia Forbes Pirie

Feedback is crucial to our development. We need it to grow. If you want to get ahead in your career, you should want feedback. It will make the difference. Organisations that do well tend to have cultures where giving and receiving feedback is the norm. But they may be becoming rarer as people seem to get more and more upset if their feedback is less than glowing. My work with teams, leaders and family businesses suggests that we may be experiencing a crisis of feedback. In mediations I often hear that people are struggling both with giving and receiving feedback. So much so that I have started training people on it. If organisations had better training on feedback and difficult conversations and built solid cultures of feedback, there would be less serious conflict and fewer mediations. Where there are mediations, many would be far easier and less painful to resolve.

1:15 pm LUNCH AND NETWORKING

2:15 pm

INTEGRATED MEDIATION AND HOW IT WILL IMPACT THE WORKPLACE

Dionne Dury, Module Leader, Employment Law, EDI Director at UEA & Chair of CMC’s Workplace & Employment Committee

In Geoffrey Vos’ words, we’re “on the brink of a revolution in dispute resolution” and ADR should no longer be viewed as alternative, but as an “integral part of the dispute resolution process” with a “focus on resolution rather than dispute”. With integrated mediation of small civil claims up to £10,000 on the horizon, then claims over £10,000, the landmark ruling in the Churchill case, this workshop considers what integrated mediation of civil disputes could mean for the workplace; whether there is a case for compulsory mediation of employment disputes, when this may not be appropriate and other ways organisations can embed early conflict resolution, drawing on a recent ACAS case study and research undertaken at Westminster and Sheffield Universities.

3:00 pm

DISPUTE RISKS WITH AI AND IP INFRINGEMENT

Clive Bonny, Director, Strategic Management Partners

The Intellectual Property Office reports one in three SME’s suffer costs, reputation damage and stress related to mistaken IP infringements. Lawyer cease and desist letters are threatening court action, claiming over £100,000 from struggling enterprises. This significant problem is compounded by Ai users scooping up IP content owned by over one million UK creative designers in digital marketing, product development, retail fashion, and health service innovations. Ai online dragnets are now heading your way. These nationwide legal threats, like the Post Office scandal, need fixing. Clive Bonny’s presentation scopes the issues, identifies dispute resolution options and asks “What Can You Do To Help?

3:45 pm

AFTERNOON BREAK AND NETWORKING

4:30 pm

I AM BECAUSE YOU ARE Kheron Gilpin, Tutu Foundation UK

What happened in the Ubuntu Round Tables? Brace yourself for an inspiring keynote speech filled with insights and interactivity.

5:15 pm

CLOSING COMMENTS

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Speakers

CLIVE BONNY

Clive Bonny has owner managed Strategic Management Partners since 1990 delivering affordable funded business support. As a member of UK Business Angels Association and Life Fellow at www.theRSA.org he helps small firms win social enterprise funding. As a member of the Chartered Institute of Personnel and Development he trains trainers to national standards. Clive is a Certified Masterclass IP Advisor by the Intellectual Property Office, British Library and Coventry University. Clive is also a Certified Mediator (not a Law Society member) for IP infringements. As a certified assessor for Responsible Business Standards he helps SME’s win public bids.

DIONNE DURY

Dionne is an accredited workplace mediator with a background in employment law. She has over 11 years’ experience working as an employment lawyer advising businesses and employees on a wide range of workplace disputes. In 2016, she became Director of South-West based business, Resolution at Work, where she developed and ran the Bristol side of the business and worked with organisations, mediating on individual and team disputes as well as supporting organisations to create conflict positive working. In 2021, Dionne took the difficult decision to step down as Director of Resolution at Work, following a family bereavement, which prompted a relocation to her home County of Norfolk, where she is now Module Leader for Employment Law at the University of East Anglia and the Law School’s Director of Equality, Diversity and Inclusion. Dionne continues to support businesses, offering pro bono mediation as part of the UEA’s law clinic. Dionne is an active Committee member of the Civil Mediation Council’s Workplace and Employment Committee and recently taken up post as chair of the group. Dionne regularly speaks at National events to promote and raise awareness of the benefits of mediation and has been instrumental in setting up and chairing a Dispute Resolution roundtable, working with key stakeholders including ACAS, the MOJ, FSB, TUC and ELA, looking at the call for evidence from the MOJ to make mediation compulsory in civil claims and how this will impact workplace and employment disputes.

ALEXANDRA EFTHYMIADES

Alexandra has over 15 years of experience in the field of organisational conflict resolution and mediation. She holds two Master’s degrees, including an M.A. in Organisational Psychology. She has worked internationally in New York and at the United Nations in Geneva. At Consensio, we empower our clients to informally manage workplace conflict and build resilient workplaces, enhancing the well-being of organisations and their people. We offer support in all areas of conflict management, providing consultancy, leadership development, training, e-learning, coaching and mediation services. Our clients include: the BBC, British Gas, Bupa, Nespresso, Sony, University of Cambridge, Westminster City Council, NHS Trusts, WWF and Unicef.

Speakers

TRACEY FOX

Tracey is a transformative mediator, with over 20 years’ experience in resolving complex and emotionally charged disputes. CEDR Accredited since 2003, Tracey is a proficient neutral with an impressive track record of successfully engaging in a diverse spectrum of cases, from employment, workplace and commercial, through to clinical negligence and private health care matters. In addition, Tracey is a highly respected global conflict management consultant (working with trade unions through to UN agencies), a leadership coach (clients from the creative industries through to leading global financial markets), and a facilitator including being Lead Faculty for CEDR’s flagship Mediator Skills Training course for commercial mediators and Negotiation Skills Training.

KHERON GILPIN

Kheron Gilpin is an engagement specialist with over a decade of experience in community development and educational interventions. His work encompasses motivational speaking, engagement training for educators, and facilitation of events and dialogues. He began his career in community development by eagerly taking, and making, opportunities for himself and others in his home area of South London. As a young community leader, Kheron worked as a peer outreach worker for the Greater London Authority while also founding initiatives, including a youth group within South London Tenants Associations called Alwayz Kreative that provided creative opportunities for young people. Kheron’s skills in public speaking and facilitation have led him to be enlisted by the Tutu Foundation to facilitate difficult dialogues, including between police and young offenders. Kheron had also been commissioned by brands such as Nike, JD and Sports Direct to run community engagement events and deliver youth engagement consultancy. Kheron now specialises in educational engagement and works with schools and colleges around the UK to maximise their student engagement strategies and deliver impactful talks, workshops and assemblies. Kheron has a strong commitment to making a positive impact, not only by sharing practical tools and strategies but also by embodying the values of unity and action, inspired by Ubuntu, an African philosophy that emphasises our interconnectedness and shared humanity.

DAVID LIDDLE

David established The TCM Group in 2001. He has built a world class team with a reputation to match. TCM specialises in the three areas of culture, climate and conflict resolution. In 2021, David was recognised as a top HR most influential thinker and he is a member of the prestigious Thinkers 50 Radar. He is author of two books Managing Conflict and Transformational Culture published by Kogan Page. The latter was shortlisted for business book of the year 2022 and the 2nd edition of Managing Conflict is being published in October 2023. David is also president of the People and Culture Association (www.peopleprofessionals.org).

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Speakers

MIA FORBES PIRIE

Mia is an award-winning mediator and coach to visionary leaders, teams and families. Unafraid to broach the issues that many shy away from, she helps people have transformative conversations. Since leaving her career as a City of London solicitor in 2007 Mia has worked on a wide range of topics such as business, sustainability, race, gay marriage, and the refugee crisis with clients ranging from the G7 countries and the Government of Mongolia to the Church of England. She is working on a book and video series on how to disagree well. Clients at Microsoft have referred to her as “the Einstein of EQ.”

CAROLINE SHERIDAN

Caroline is CEO of Sheridan Worldwide, operating a global faculty of executive coaches and facilitators alongside her award winning mediation practice. She has consistently appeared in both the Chambers UK and Legal 500 directories and is regularly sought to mediate workplace/employment and commercial cases. Having chaired the Civil Mediation Council’s Workplace and Employment group and served as a CMC Board member, Caroline specialises in the repair and restoration of valuable workplace relationships which appear damaged beyond remedy. She has been instrumental in spreading mediation within organisations resulting in an increase in cases going to mediation both internally and externally. Caroline has a strong commercial background having worked at Director and Board level in investment banking and held Head of Compliance and HR roles for both UK and international corporates and finance institutions.

DAVID WHINCUP

David’s 40 year experience as a specialist employment law practitioner covers a wide variety of employment-related issues, including recruitment, disciplinary and grievance procedures, the defence of employee discrimination and dismissal claims, employee health, data protection and intellectual property and confidentiality matters among others. David’s clients span from senior individuals to household-name corporates and across all sectors, with particular expertise in the financial services sector. David is a well-known speaker on employment matters, both in-house to clients and for commercial training providers, and is a regular contributor to employment publications. He is an accredited CEDR Mediator and a keen exponent of the role of mediation in the modern workplace, scoring significant successes for corporate and individual clients through that route. He is a member of the workplace and employment sub-group of the Civil Mediation Council. David was recently named in the Best Lawyers in the United Kingdom and Who’s Who Legal publications and has been a fixture in both the Chambers and The Legal 500 directories for many years.

Exhibitors & Sponsors

ACAS

w: www.acas.org.uk

Acas is a Government agency, independent from Ministerial control. We provide free and impartial advice to employers, employees and their representatives on employment rights and best practice and policies; and have a statutory role to resolve workplace conflict between groups of employees (often via trade unions) and their employers, between individual employees, and between individuals and their employers. Our front line services and research and policy programme provide deep insight on the world of work which we use to identify opportunities and influence policy makers.

HUNT ADR

w: www.huntadr.com

Hunt ADR is a leading Civil Mediation Council certified training provider. We provide training online and in person including the 5 day Mediator Accreditation Programme and the innovative All About Mediation CPD course, offered on demand using the latest AI and avatar technology. Our training programmes are consistently rated 5* on Trustpilot and we find most of our trainees come to us after being recommended by graduates or by word of mouth – the best endorsement around. We also offer in house courses and courses for Universities in the UK and overseas. Hunt ADR offer mediator appointment and we are the UKs largest arbitration provider.

SHERIDAN WORLDWIDE

w: www.sheridanworldwide.com

At Sheridan, we help organisations worldwide maximise their potential and drive lasting change by providing the guidance and inspiration necessary for their people to succeed. Our award-winning work focuses on tailored one-to-one, team and group coaching to support the development of leadership and management capabilities, as well as mediation and conflict resolution interventions across the business. Our specialists in organisational culture, wellbeing, inclusion and team dynamics partner with clients to ensure a tailored approach. We supply our coaching and mediation services in the UK and internationally through our extensive faculty based around around the world in all key locations.

THE TCM GROUP

w: www.thetcmgroup.com

TCM are a leading provider of conflict management, mediation, HR and leadership training and consultancy. We deliver tangible benefits to our customers by transforming conflict and change from a threat into an opportunity. For more details, please Read Managing Conflict (Kogan Page/CIPD) available from https:// amzn.eu/d/4jRZ7mB written by TCM’s CEO David Liddle.

TUTU FOUNDATION UK

w: www.tutufoundationuk.org

The Tutu Foundation UK’ s mission is to prevent & resolve conflict, to help people build peaceful communities across the UK, by providing facilitation and mediation services based on the principles of Ubuntu. The Tutu Foundation UK operates at the coalface of change: Working to restore human dignity one community and individual at a time. The Tutu Foundation UK has succeeded in delivering a wide range of innovative and successful projects that have empowered social and corporate communities across the UK to tackle and resolve conflict. The Ubuntu Round Tables have brought together young people and police officers in safe environments to discover each other’s humanity.

HEADLINE SPONSORS:

Advocating Mediation in Business

@UKMediationJ

@UKMediationJ

@UKMediationJournal

@UKMediationJournal