UK Mediation Journal Issue 6

Issue 6

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Welcome to Issue 6 of the UK Mediation Journal In this issue we reflect on 2017, a year in which issues such a sexism and sexual harassment have been pushed to the forefront of our collective consciousness. On page 37 we explore the role of mediation in the post-Weinstein world and the perceptions and reporting of sexual harassment in the workplace.

We are pleased to announce the continuation of our partnership with Civil Mediation Council throughout 2018 and our involvement in the launch of the ALL Mediation Conference. The conference will take place at London’s QEII Centre on 23rd May 2018. We will keep you updated with news and announcements about the conference in the new year.

Issue 6 takes a closer look at how mediation and its implementation varies across cultures and if cross culture cooperation can benefit the industry as a whole. The international theme continues on page 20, examining mediation in cross border disputes, and although it may seem like a natural choice of conflict resolution, it may not be for all.

We are keen to continue to provide accurate and thought provoking content, if you have an idea for an article or would like to see a particular topic covered in Issue 7, please get in touch!

Happy holidays!

Craig Kelly Managing Director Iconic Media Solutions Publishers of the UK Mediation Journal

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Inside: 6. 2017: a year of growth, change and momentum 9. CMC Values: Inclusion and Growth 11. Automatic Referral - CMC Response to Consulation 13. The ‘C word’ 15. Mediation as Organisation and Leadership Development 16. Mediation in a Changing World 17. How the Army Use Mediation to Manage Interpersonal Issues

19. How To End Those Bitter Director Disputes 20. One Day, One Venue, Multiple New Benefits & Rewards Solutions

22. Mediation Can Mature Like a Fine Wine 25. CiC Case Study: External Mediation Partners

with Berkshire Healthcare NHS Foundation Trust

26. Conflict at Work and its Management 28. The Psychological Case for Compulsory Mediation in Civil Justice

29. Disability Mediation 31. Independent Mediators Limited 32. Mediation in Cross Border Disputes - A Natural Choice....

But Not For All

35. Mediating Across Cultures 36. Blockchained Melody 37. Workplace Mediation in the Post-Weinstein World

www.iconicmediasolutions.co.uk

38. Could Mediation be the Key to Breaking the Brexit Deadlock?

40. Anglo – German Mediation Approaches – Why so Different?

Published by Iconic Media Solutions Ltd, 32 Bloomsbury Street, London WC1B 3QJ t: +44 (0)20 3693 1940 e: info@iconicmediasolutions.co.uk w: www.iconicmediasolutions.co.uk

42. Changing the face of human resources through mediation 44. Directory of Mediation & Training Providers

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.

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Anne Pemberton, Patient Experience Operational Manager, Birmingham Comunity NHS (to view the video: https://youtu.be/48cEukCrI5Y)

2017: a year of growth, change and momentum

By Caroline Sheridan, Chair, Workplace and Employment Sub-Group, CMC 2017 has been a very successful year for CMC vigorously demonstrated by the success of the many events which took place around the country. The Workplace Sub-Group launched a series of national workplace conferences entitled Save Time, Save Money, Save Stress held in London and Solihull. The speakers recounted case studies demonstrating the value of of mediation as the first-resort dispute resolution measure in the workplace.

Justice, Fairness and Responsibility was the theme of the annual conference in May, held in London. A number of highly engaging speakers covered topics ranging from Securing Your Online Presence, Family Business, Elder Mediation, Costs in Mediation and Mediating Costs and case studies on in-house mediation schemes. The new format focused on significant contributions from sector specialists and was a resounding success.

In October we ran the Academic Conference which was designed as a prelude to the consultation currently underway – CJC – ADR Working Group Interim Report1. Delegates have enthusiastically appreciated both the academic and practical aspects of all our events. In total over {to be added] members and non-members attended our events this year.

The roadshow continues in 2018. The first event will be in Newcastle-upon-Tyne on 8th March and Cardiff will follow later in the year with a similar range of high-class speakers from academia, law, Acas and employers and employees from

6 6 UK Mediation Journal, Issue 6

business and industry. Members and non-members are welcome at all CMC events. It is a good opportunity to check out what being a member might mean for you.

Our membership has grown over the year alongside the increased public profile.

On 29 November 2017 the Professional Mediators Association (PMA) lead by David Liddle was incorporated into CMC. We warmly welcome all former PMA members to their new professional home at CMC. (See separate article). We also look forward to relaunching the National Mediation Awards next year in partnership with the College of Mediators.

The CMC remains the voice of mediation and we are heard at the highest levels. In the recent sexual harassment scandals in Parliament the debate around the most suitable procedure to deal with such complaints is a good example. in response to comments made in the parliamentary debates, and with input from our Workplace sub-group and board members, including Iain Christie, Sir Alan Ward wrote on behalf of the CMC to Andrea Leadsom, Leader of the House of Commons, to correct some alarming misconceptions among the MPs speaking. Sir Alan cautioned against letting uninformed public sentiment lead to the over-simplification of the real issues arising from harassment allegations. Both legally and practically they are far more complex and require more considered handling than the debate in the House suggested.

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For example: MPs suggested that offering mediation instead of a formal procedure was “wholly inappropriate” because 1) it implied an equality of bargaining power which might be absent or 2) that a proposal to mediate suggested the victim, male or female, was not believed. On the contrary, mediation acknowledges that there is a problem.

The reality of this type of allegation is much more nuanced than the cry of some MPs that all harassers must lose their jobs.

To say that all such conduct, deliberate or not, requires a formal disciplinary response and loss of job is s over-simplistic. Indeed, CMC takes the view that the option of mediation at an early stage would give alleged victims of harassment a chance to be heard with ‘equal power’. Furthermore, alleged victims have an equal say in the resolution. Our experience is that many recipients of unwelcome behaviour, in the workplace, may be content with an acknowledgement that an important line has been crossed and some reassurance that it won’t happen again. If the only response of the employer (or Parliament) is via a potentially public and career-threatening formal process, then this may deter the reporting of such cases. A public process could engender fear of an over-reaction by the employer, leading to sanctions which are neither sought by the alleged victim nor deserved by the alleged perpetrator. Alternatively, as with litigation, public disciplinary processes could lead to entrenchment of positions or incentivise counter-attack; a response which such proceedings inevitably

CIVIL MEDIATION COUNCIL

invite. In contrast, mediation offers the chance to restore and protect the working relationships which is in the best interests of both the parties to the complaint. We continue to educate and inform at every available opportunity.

We end this year in good shape thanks to the efforts and skills of our volunteer committees and board. We owe a great debt of thanks to the people who write, design, organise and present the practical demonstration of our vision. There is much more to do and to that end our priorities for 2018 include the successful integration of former PMA members, new work on mediator and training standards, more conferences to educate and inform, a re-vamped website and above all, the demonstration to all our members, old and new, that CMC is supporting the widest possible use of mediation across the UK. Membership contributions are vital to our work and to the inclusive nature or our mission. www.civilmediation.org

1 https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf

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CMC Values: Inclusion and Growth

By Amanda Bucklow, Chair, Communications Committee, CMC

O

n 29 November 2017, The Professional Mediators Association (PMA) was formally amalgamated with Civil Mediation Council. CMC warmly welcomes all past PMA members to their new home.

PMA was founded in 2010 by David Liddle, CEO TCM and under his leadership the association grew to include members from companies, organisations and distinctive brands. David saw an opportunity to influence the culture of organisations by recognising conflict resolution skills as professional skills and creating value for employers and employees alike. Whilst the significant majority of PMA members do not earn their living as mediators, they value the recognition and support provided by the PMA over the years and which they will continue to receive through their ongoing membership of CMC. Likewise, David will continue his commitment to promoting the wider acceptance of mediation from within the CMC as part of our growing team of volunteer advisors.

PMA are also the architects of the National Mediation Awards, last held in 2016. CMC looks forward to relaunching the awards in association with the College of Mediators in 2018.

CMC was founded in 2003 as a membership organisation for civil and commercial mediators reflecting the main sector of activity at the time. Over the last 15 years CMC membership has changed significantly to include mediators from every sector and in particular workplace and employment mediators who often work with disputes that are both commercial and employment related.

Earlier in 2017, PMA and CMC identified an opportunity to extend their influence on the culture of dispute resolution within

working communities by capitalising on the reach developed

by PMA and the considerable influence developed by CMC with policy makers and the judiciary. This move brings together distinct markets under the same umbrella, in the spirit and practice of ‘the voice of mediation’ and ahead of anticipated changes in the market.

It is hugely important that the culture and value system within organisations includes dispute resolution as normal and inherent rather than something you ‘do’ to get people to behave. When you have engaged people in the culture of dispute resolution and they have experienced it even in part of their working life, then that culture will lead to positive approaches and attitudes in the wider commercial arena. Most will agree that the experience of mediation is the best education in understanding the benefits and opportunities.

Mediation in practice benefits everyone in a working community and especially the front line who are often deeply affected by delay, cost and consequences of protracted commercial disputes. The effects on staff performance are not always quantified or recognised and yet time and again stress (including that arising from damaged relationships) is identified as a significant cost to industry.

So this is a considered and strategic move of two perviously distinct areas of mediation represented by CMC and PMA recognising the synergies demanded by the market and coming together under one banner. It is a welcome development which aims to capitalise on the trends towards acceptance of mediation as a core business process rather than something you have to do before you can get to the battlefield (court).

9 UK Mediation Journal, Issue 6

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MEMBERSHIP CHOICES

Your membership means we can do more, faster.

For the first time since 2015 CMC is increasing its membership fees.

Registration fees will remain unchanged.

INDIVIDUAL

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2017

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To find out more about joining the CMC scan the QR code or visit civilmediation.crg/join-cmc

To enquire about membership contact: registrar@civilmediation.org When choosing a mediator or mediation skills training provider, make sure you choose one that is CMC registered.

You can search our membership database or verify registration at civilmediation.org/members-search.php

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Automatic Referral - CMC Response to Consulation

By Amanda Bucklow, Chair Communications Committee, CMC

A

t the CMC Workplace Mediation event in Solihull held in October, the majority of speakers and participants expressed their profound disappointment at the continued low level of take-up of mediation in workplace and employment disputes. Singularly frustrating is the trend to invoke grievance procedures and head for the employment tribunal instead of engaging in a more constructive dialogue.

This trend is certainly not confined to the workplace and employment arenas. The CJC Report1 published in October acknowledged that the light touch approach to encouraging mediation over the past 25 years had not delivered an appropriate shift in culture and the CJC ADR Working Group has launched a consultation process to explore the possibilities of some form of compulsion to mediate in the civil justice system.

There are echoes of the observations in the 2007 National Audit Office2 report which identified that more needed to be done to promote mediation and ‘financial disincentives’3 removed in the case of solicitors. Arguably, more stick than carrot has been noted in recent judgments regarding costs sanctions for refusal to mediate in the Commercial Courts and this heralds an important influence on the culture of dispute management.

CMC has prepared a response to the CJC Consultation, and an outline proposal for ‘Automatic Referral to Mediation’’ has been drafted by Paul Randolph on behalf of the CMC board. This was presented at CMC’s AGM on 29 November 2017. It is expected that a greater number of cases could be ‘automatically referred’

to mediation and the process would become an integrated part of the litigation process which is a particular aspiration expressed in the CJC ADR Working Group report and Lord Justice Briggs’s Civil Courts Structure Review4 published in July 2016.

4.9. Mediation can be regarded as the pre-eminent nonadjudicative dispute resolution process conducted in parallel with litigation. Almost all decided cases about ADR have actually been about mediation. It is common for cases to be stayed for mediation on the route to trial.5 The board invited comment from the membership, principally whether in support of the proposal or not, and will submit its response in time for the deadline on 15 December 2017. The flowchart6 and accompanying notes7 are available on CMC’s website.

1 https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interimreport-future-role-of-adr-in-civil-justice-20171017.pdf

2 https://www.parliament.uk/documents/public-accounts-commission/ tpacnaoannualreport07.pdf 3 Ibid. p.18 Listening to Consumers Views para 3

4 https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courtsstructure-review-final-report-jul-16-final-1.pdf 5 https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interimreport-future-role-of-adr-in-civil-justice-20171017.pdf p.16 6 http://civilmediation.org/library-get?id=19 7 http://civilmediation.org/library-get?id=18

Proposed Process for ‘Automatic Referral’ to Mediation in Civil Cases

Informal attempts at negotiated Agreement

Stage 1

C agrees to mediation and pays nominal issue fee

D served with claim and information about referral to mediation

D ignores claim

C entitled to enter judgment

D admits claim and offers full payment or payment plan

C issues claim Court automatically refers claim to mediation

D denies claim and where C opts out D requests mediation

D denies claim and does not opt out D denies claim and opts out of mediation and files reasons

C opts out of mediation, pays full issue fee, files reasons for opting out

Stage 2 Court informs parties about mediation process, how to find a mediator and sets time limits

Settlement Agreement

Draft Court order submitted if required.

No Settlement Agreement

C pays balance of issue fee

Mediator appointed, arrangements made and mediation concluded

Court informs parties about mediation process, how to find a mediator and sets time limits

D pays fee to defend/issue counterclaim

Key Mediation 11

Litigation Pre-litigation

UK Mediation Journal, Issue 6

Case proceeds to next stage.

D pays fee to defend/issue counterclaim

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Note: Above automatic referral process repeated at each stage of the litigation process: at allocation, case management conference (CMC) or when proportionality rule invoked

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The ‘C word’

By Alex Efthymiades, Director and co-founder, Consensio

T

here seems to be a certain word in the English language that organisations avoid at all costs. This word is only mentioned by a few brave individuals in hushed whispers, like any other word that we perceive as a taboo. So what is it about this word, the C word, that makes it so difficult to say, let alone discuss within most organisations?

The C word we refer to is conflict. Organisational conflict. It is as if, by not mentioning this word, not talking about conflict and the impact of it, we can somehow pretend that our workplace is immune from it. But the reality is that by doing this, we are actually losing out on a huge opportunity. This may sound like an oxymoron, but as workplace mediators who deal with conflict on a daily basis, we know that conflict is not inherently bad. Importantly, by speaking about conflict, we can make a real difference to the wellbeing of people within organisations. And this in turn will have a positive impact on how an organisation functions.

Below we look at why most organisations avoid the C word, why it makes good business sense to acknowledge that conflict is normal, and why we should shift from viewing workplace conflict as something negative. As you will see, the C word can actually have a lot of positive connotations.

Why organisations avoid conflict If conflict occurs in every organisation, regardless of sector or size, why the silence? For some, it is that they don’t want to hang out their dirty laundry for others to see. For others, it is because conflict makes them feel so uncomfortable and unequipped that they would rather avoid it altogether. The paradox is that by not acknowledging and dealing with workplace conflict, we allow it to fester and grow. As a workplace mediator, I see how small issues between colleagues transform into something much bigger and more problematic. What could have been resolved quickly and

informally now needs witnesses and documentation. A grumble turns into a grievance. So at the outset, it makes sense not to avoid conflict but to find informal ways, such as mediation, for people to have courageous workplace conversations to resolve issues quickly.

Perceptional shifts Conflict conversations and informal conflict management should be the norm in all organisations. But this requires a change in the cultural mindset. To do this we must shift people’s perceptions about what conflict represents. For most of us, it represents something negative – it makes us feel vulnerable and awkward.

But those of us who work with conflict know that the C word is more complex and interesting than that. Of course it can be negative.

But it also has huge potential for being constructive. Constructive conflict happens when people are given the opportunity to collaboratively resolve interpersonal conflicts together: it can lead to better communication by clearing the air and clarifying misunderstandings; it can strengthen relationships by enabling people to speak about what is important to them and what they need; it builds empathy; and it can lead to creativity by allowing people to brainstorm alternatives and thus come up with better solutions to problems. What’s there not to like?

For further information on mediation and conflict management, visit: www.consensiopartners.co.uk

13 UK Mediation Journal, Issue 6

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Mediation as Organisation and Leadership Development

By Brendan Schutte orkplace Mediation has so arrived. I mean, it’s here now, right, so let’s just use it people. Forget, like, courts, investigation blah, blah. They’re history, get over it, join the real world. Wake up and smell the moccachino.

As Siobhan Sharpe might say in the BBC television comedy series, ‘W1A’.

The debate about whether or not to use mediation in the workplace is over and it’s now moving mainstream into policies, practices and procedures in all employments.

Mediation is not just a great way to resolve employee relations problems and improve working relationships - it’s also a major organisation development intervention and a catalyst for leadership development.

Improving culture through strategic adoption of mediation has proved beneficial for numerous organisations from the US Postal Service to British American Tobacco. It signals a deliberate move away from an adversarial culture to a collaborative culture and, ultimately, from a blame culture to a resolution culture. It’s about everything the organisation does with employees, suppliers, customers and partners.

Mediation is a practical expression of espoused organisational values. Far too many companies suffer from a Values Gap – the difference between what we say we do and what we actually do.

Picture the company which claims to value collaboration and fairness, while in practice suing and dismissing at the drop of a hat. Introducing a mediation programme will allow this gap to be bridged.

Training in skills and techniques of mediation carries tremendous benefits, whether or not the goal is to practise as a mediator. It is especially useful for those in leadership positions. Learning outcomes include improved active listening, better attention and concentration, a willingness to see multiple perspectives, and a greater understanding of people’s needs and emotions at work.

A particular skill of benefit to leaders is being present in the moment to other people. We know the job of a manager is often a fragmented and diverse set of short term interactions. This can result in distraction, in thinking about the next item on the long list and consequently in being present only in body to others such as employees, customers, board members, and external agencies.

Mediation training emphasizes and cultivates the need to be calm, to pay attention and to be aware of what is happening in the here and now.

Using framing and reframing is as much a crucial skill for those in leadership positions as it is for mediators. A core leadership task is to scout out the future and frame it in such a way that others

W

will follow. Framing is not an easy skill to master and is rarely taught on standard management development programmes. But in mediation training it is essential, and while not the easiest skill to master, good reframing can have an enormous impact on bringing about change.

For more insight into this valuable skill see ‘Remarkable Reframing’. (http://eprints.maynoothuniversity.ie/6257/).

Mediation provides better language tools and increased confidence which can be used to good effect in management tasks such as coaching, performance management, dealing with poor behaviour, and leading through change.

Time to accept the effectiveness of mediation and embrace the strategic features it offers.

Or as Siobhan Sharpe might say, “Are you upside with this ?

Because it’s not an overstatement, it’s an uberstatement.”

Brendan Schutte is a workplace mediator, investigator, facilitator and trainer.

For more information see: www.brendanschutte.com He is also an associate of ASM Mediation, London (see www.albertsquaremediation.co.uk).

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Mediation in a Changing World

By Nikki Nang Nilar, CIArb

T

he 10th annual Mediation Symposium organised by the Chartered Institute of Arbitrators (CIArb) on 27 September 2017, proved to be a full house with high profile speakers shedding light on the fascinating topic of unconscious biases uncovered by the latest research, touching on game theory and delving into the political and economic contexts in which mediation is applied.

Marion Smith QC FCIArb, who is also a CIArb Trustee, set the context in her opening address, highlighting the ever-changing world in which we live and the importance of the alternative dispute resolution (ADR) sector in bringing greater access to justice. “ADR practitioners are a safe haven” in the current landscape where UK courts are struggling, she said.

The morning session was led by leading experts Kenneth Cloke, Director of the Center for Dispute Resolution and John Sturrock QC MCIArb, Chief Executive of Core Solutions who are both wellknown names in mediation. Charlie Woods, Executive Director of the Scottish Universities Insight Institute provided information as a specialist in economic theory in a mediation context. Together, they captivated the audience with in-depth knowledge drawn from the world of neuroscience and cognitive psychology into the biases that influence how we act and react to others and examined the practical implications for mediators when facilitating a suitable outcome for disputing parties. They highlighted the mediator’s role in creating cognitive ease around the resolution of conflict and how transparency around this was important from an ethical standpoint. Mediators had a duty to be authentic they said, in providing the necessary time to listen and understand their clients.

A workshop then followed where participants broke out into groups to examine various case studies and reported back on the biases and issues they identified in the scenarios which had direct relevance in practice.

16 16UK Mediation Journal, Issue 6

The afternoon session focussed on the broader political and economic framework. Vice Chair and Secretary of the CIArb London branch and highly experienced mediator Paul Rose C.Arb set the context with an overview of game theory and highlighted that negotiation was not necessarily a zero-sum game. The role of the mediator was to determine what was really at stake for each party and how to develop communication and trust, he said.

John Howell OBE MP for Henley and Chair of the All-Party Parliamentary Group (APPG) on ADR, provided a parliamentary perspective with an overview of the discussions led by the APPG on their efforts to foster a change in the culture of dispute resolution in the UK. Whilst some sectors were well-acquainted with using ADR, such as in construction, he highlighted the need for it to be better utilised in areas such as planning where parties often go straight to judicial review.

Anne-Marie Blaney MCIArb, former Chair of the CIArb Irish Branch, examined ethics in legal and corporate frameworks, stressing the need for widespread partnership in order to increase mediation uptake and deliver real civil and social justice value. She highlighted the EU project ‘Mediation Meets Judges’, urging increased knowledge sharing and court referral to mediation. Acknowledging that the term ‘mandatory mediation’ is in common usage, she led a discussion on the nuances and variety of mandatory measures touching on the example of Italy as a lesson in implementation.

Hosted by venue sponsor Ashurst, the event drew rich discussions from a highly international crowd, who exchanged insight from experiences in various jurisdictions.

Paul Rose drew the event to a close with a neat summary of the issues, followed by a lively drinks reception kindly sponsored

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How the Army use Mediation to manage interpersonal issues

By Patrick Moulsdale, Head of Mediation & Training, CMP Resolutions

E

mployers value ex-service people’s skills and experience as a core. On paper what’s missing are the soft skills.

However wrong this perception might be in relation to modern service people’s training, there’s a need for them to prove breadth of skills and suitability for managing and working outside of a hierarchy and ‘command and control’ model: with freewheeling civilian employees and their conflicting agendas, perspectives and temperaments.

The approach has become familiar for many service people.

In the Army, for example, mediation was introduced by Brigadier Mark Abraham, in 2010.

“The Army had experience of the use of mediation in a particular high-profile legal case where the approach had been very successful. We’d been in to see large-scale public and private sector employers and how they dealt with disputes and the value they’d gained from mediation services.”

Working with CMP Resolutions, the Ministry of Defence trained over 600 mediators, more than 100 of them are Army service personnel who work within its well-established mediation service, promoted for use by staff and managers. The numbers of staff requesting mediation training now exceeds the training places available.

“It’s popular because the training leads to a formally recognised qualification, and involves such fundamental skills for modern managers,” said Brigadier Abraham. “A shift to mediation has had a substantial effect on the people culture: there’s been an almost 90% success rate in terms of mediation leading to resolutions. The average time taken to resolve an issue has been around two to three days, by comparison with around six months for the formal process. The use of an impartial mediator and the confidentiality involved has meant people being able to be more open than they would have been with a line manager directly involved with their career, and discussions have got to the real heart of issues.”

The Professional Workplace Mediator programme is the most widely used, nationally accredited training programme for mediators. It was designed to be generic, and capable of tailoring for different contexts and settings. For 20 years CMP has trained mediators who are now reducing the stress of conflict and resolving disputes in a wide range of settings. It is invaluable to anyone seeking to develop confidence in handling difficult situations, and help their organisations reduce behavioural risk around interpersonal differences. Participants take away a bag of skills which will be helpful at home or work.

As a senior officer due to be leaving the Army for civilian life, Brigadier Abraham sees the benefits of having undertaken the mediation training for his own future career: “I was very impressed by the work by CMP. In my mind I’d thought I’d be able to cover off mediation in a day - but soon realised that every element of the week-long programme was important. CMP’s expertise delivered

the necessary quality and depth for mediating at a professional level, a role that I’m still refining and learning about after eight years.

“For me, the most important lesson was around listening, not asking a question and making a decision but really listening. It’s given me a whole new set of leadership skills in terms of helping me understand people working at all levels, their behaviours, and how to provide support. Ex-service people will benefit from mediation training as a foundation of their people skills - in being able to deal with everyone from junior staff to board level, to have empathy, to manage difficult conversations and situations, and to be an important part of managing partnerships and collaborations across and between organisations.” www.cmpresolutions.co.uk

17 UK Mediation Journal, Issue 6

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17

When you can’t see the wood from the trees...

What do businesses do when they have a dispute?

If you don’t know where to turn…..

A fast cost effective answer is possible.

A call to Mediated Dispute Solutions will provide the answer.

All calls are answered by an independent mediator who can give information and discuss individual needs impartially. Most mediations, from the first enquiry to settlement, take only 3-4 weeks. This helps with customer satisfaction, cash flow and the minimal loss of time by the key worker or director in finding a solution.

“The mediator listened to our client’s concerns and grievances, but also helped us focus on important issues to achieve settlement”

“The mediation was very helpful in re-establishing trust between the parties”

For your business and family’s sake, smart people mediate.

Deborah Butterworth Family and Civil & Commercial Mediator

Michael Butterworth Civil & Commercial Mediator

Contact us to discuss your mediation requirements

T 0207 993 6869 E info@mds.london W www.mediateddisputesolutions.uk

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How To End Those Bitter Director Disputes

By Michael Butterworth, Mediated Dispute Solutions People call for help with: •

Failing businesses because of disputes between directors or partners

•

Co-directors or partners who can’t stand working with each other

•

Situations when accounts, strategy or future direction can’t be agreed

•

Partners or directors who simply cannot speak to each other

Angry partners or distressed directors need to resolve their problems quickly and amicably. Otherwise it could cost them hard-earned money as well as peace of mind.

It only takes two people to have a dispute and come into conflict.

That is as true in business as it is in marriage. In fact, they can be very alike. Why? Well, more than half of all small and medium sized enterprises have only two partners or directors, according to a Government survey carried out in 2016.

And if you’re in business with just one other, it can be as if you were wedded to each other. Your lives become wrapped up in each other’s. Sometimes, it succeeds. In other cases, it fails.

Perhaps you recognise these situations . . .

•

At first, you are infatuated by the prospect of the business and how great you are together. You work hard and profit.

As time goes by, however, things become more routine and one (or both) wants something more.

•

Or, it just doesn’t work from the beginning. Both thought the business was going to deliver different things. A job, a career, an income or a platform to sell something else. But it hasn’t succeeded.

Such situations are frequently described to us by directors and partners when they come to Mediated Dispute Solutions Ltd to seek help in resolving their in-house problems and disputes. Our mediators are highly-experienced in dealing with both corporate and small-business conflicts – as well as partnership problems and family-business mediation. This combination of expertise means the appropriate mediator can be matched by us to the particular circumstances of any dispute between company directors or partners.

Crucially, mediation is private and confidential. We empower everyone to have confidence so the decisions reached with us are those of the directors’ or partners’ alone. It is also fast and practical. The result is a discreet, mutually acceptable solution which can be managed within the business.

Often directors and partners try to sort out problems themselves. One longstanding partnership tried as many as 37 times over an 18-month period to resolve the future of the business. Only then did they consult their solicitor who promptly referred them to mediation. The complications and implications

of dividing a successful working business are sometimes greater than the pain of trying to make it work. After a number of short mediation sessions to get to the heart of their concerns, re-evaluate their working relationship and, with the help of their solicitor, modify their partnership agreement, they are working towards the continuity of the business after they retire.

In another case we resolved, the directors met together each month for over two years to try to resolve a particular problem.

In mediation, we refocused their view-points and helped them take a second look at their priorities. With our aid, they worked on changing their shareholder agreement to ensure that any future problems did not turn their relationship into a battle-field.

Now, they continue to run a profitable business together.

Mediation works so well because the mediator acts as a trusted, independent, neutral go-between. This encourages dialogue between the opposing parties. In turn, that produces a practical working relationship or a solution. The outcome can then be a settlement agreement, a memorandum of understanding, a schedule of actions - or whatever is needed to allow those at odds to communicate, look forward and benefit from their business.

In some cases, however, the result will be an agreed separation of duties or an amicable dissolution of the company or partnership – critically, at the least possible expense.

Mediation being confidential naturally limits who needs to know what’s going on. This keeps the problems away from customers, clients and staff. In one case the partners managed selling their successful business and retired.

Many people can’t face each other to deal with this kind of problem. But, they can benefit from facilitated sessions of faceto-face or telephone mediation to guide matters to a successful resolution.

So, if you can’t speak to each other, speak to us instead.

Smart people mediate.

Contact Mediated Dispute Solutions Ltd T: 020 7993 6869 E: info@mds.london W: www.mediateddisputesolutions.uk

19 UK Mediation Journal, Issue 6

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One Day, One Venue, Multiple New Benefits & Rewards Solutions

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he Employee Benefit & Rewards Forum (employeebenefitsforum.co.uk) took place earlier this month, giving 65+ senior HR, Training and Benefits professionals the opportunity to meet new suppliers, network with peers and learn from insightful seminar sessions.

The Forum is entirely free for these professionals to attend and the 2017 event attracted executives representing an A to Z of some of the UK’s biggest names, including: Arcadia, British Transport Police, City University, DHL, Harvey Nichols, Heathrow Airport, Lush, Manchester Airport Group, Mercedes-Benz, Monarch, Pret A Manger, RAC, RFU, Sainsbury’s, Santander, TalkTalk, Travelex, Whitbread, William Hill and many more…

The unique format of the Forum meant that these delegates met with suppliers for pre-arranged face-to-face meetings throughout the day, all based on mutual requirements – meaning no hard sell and no time wasted.

Suppliers in attendance included Argos for Business, ASE Eyecare, Gym Pass, Mappin & Webb, OC Tanner, Perkbox, P&MM, Red Letter Days, Trainline.com, Wealth at Work and more – covering everything from Health Screening to Gym & Fitness Benefits, Language Training to Lease Solutions, Relocation Servies to Benefit Schemes and beyond.

20 20UK Mediation Journal, Issue 6

Seminar sessions include: •

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Registration for the 2018 Employee Benefits & Rewards Forum is open now. Simply head to employeebenefitsforum.co.uk/delegatesbooking-form/ or contact Kelly Barrett on 01992 374057 or via k.barrett@forumevents.co.uk to find out more.

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Mediation Can Mature Like a Fine Wine

By Dr Karl Mackie CBE, Founder President of CEDR and Andy Rogers, Director of CEDR and Trustee of the CMC

L

ike a good wine, mediation can and does travel well.

There will be different variations on mediation (be it commercial or workplace) often reflecting local palettes, however, the recognition of what mediation is and what it can do for the resolution of disputes has never been higher across many borders.

A starting point for understanding mediation’s growing presence is to consider where in the world mediation now has a formal status.

Or to make the task easier, just ask the question - ‘Which countries do not formaly recognise mediation?’ From Kazakhstan to Kenya or Brazil to Bangladesh there has been a change in that status of mediation where laws have been enacted, practice rules changed and mediation schemes adopted by courts. Most countries now, at least in theory, have a mediation presence. This is a dramatic update for a world where back in 2000 you could probably have counted on the fingers of two hands those countries where there was any formal recognition of mediation.

Asking a different question – “How many mediations are each of these countries doing?” – unfortunately brings a less satisfactory answer, for whilst certainly some jurisdictions are very active, when taken as a whole the picture is far less consistent. Nevertheless, if the development of mediation in the UK has shown anything it is that it is hard to change the status quo overnight and persistence, while frustrating, can bring change. In this light, the development of mediation internationally is not hopelessly slow but rather typically incremental when viewed in the longer term.

One of a number of catalysts for this change was the European Union’s ‘Cross-Border Mediation Directive’, which was mooted for over a decade and came into force in 2011, for disputes between parties within different member states. As a direct result of this development there is now undoubtedly more access to mediation across the European Union - however, quality and importantly usage remains uneven from state to state. There is definitely scope for still wider adoption whilst letting mediation retain the flexibility which makes it so useful and adaptable.

It is very important to note that the consequences of the Mediation Directive have been to develop internal capabilities in each member state to use mediation not just for cross-border disputes but in many other areas of commercial and civil disputes.

Alongside this, the more recent EU Consumer ADR Directive, whilst not specific to mediation, has stimulated more activity in the field and a better understanding of mediation and its uses.

The net result of both these Directives has been positive across Europe for businesses and individuals (both as consumers and as employees). In Dublin or Dubrovnik there is now a greater

22 22UK Mediation Journal, Issue 6

understanding that, in most circumstances, a person has the right to access mediation to resolve their dispute whether it be a piece of commercial litigation, a customer seeking redress for their complaint or a solution to a workplace grievance.

A recent influence in the growth of international mediation is the work of the United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Dispute Settlement).

Most recently UNCITRAL has been reviewing as part of its remit, whether there should be a mechanism in international trade law which ensures there is standard legal enforceability across borders for mediated settlement agreements or should each jurisdiction be encouraged to enact a model mediation law. The Working Group has now been meeting twice a year for two years alternating between Vienna and New York UN offices currently developing both options within a flexible model where countries can choose either or both.

The heart of their debate is whether mediated outcomes should have a similar status given to arbitral awards under the longstanding UNCITRAL Convention, which allows countries to sign up to the recognition and enforceability of international arbitral awards. The logic is obvious for arbitration at one level – ‘final’ resolution in an international commercial dispute, would be much less appealing if one could not guarantee that outcomes would be recognised by different national courts (and there are

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mediation, if it can adapt “...the subtly to regional palettes, will

still some major jurisdictions where this is a major headache for companies operating across borders). A lack of finality undermines the rule of law and in turn international trade. Some 153 countries have signed up to the ‘New York Convention’ which sets out the legal framework by which this recognition and enforceability happens for arbitral awards.

Seeking to apply this same logic to mediated settlement agreements raises a raft of points of principle and detail. Is an instrument necessary? What happens if a settlement occurs just after a mediation and who certifies that a mediation has taken place? What rule applies if a mediated settlement has been already converted into a consent court order in one jurisdiction (terminating any trial)? What is the scope of the instrument and the definition of commercial mediation? The latter issue already is a prelude to an international language anomaly, as traditional UNCITRAL instruments refer to ‘Conciliation’ rather than ‘Mediation’ and this is likely to work through to any new UNCITRAL instrument despite the dominance of the word ‘mediation’ now.

Observing the debate, it is obvious that a great deal of care and attention is being put into the process by the many national delegations who are mainly from Ministries of Justice though some do include mediators. It is equally apparent that many jurisdictions have found the drive for a legal instrument somewhat bemusing as some countries are still relatively new to

“

mature into a fine vintage

mediation compared to arbitration, and some struggle at times with in-depth understanding of the process.

Some in the mediation world might query whether any instrument on enforcement is necessary given that most mediated settlements are reached and implemented by consent, making mediation very different from imposed arbitral awards.

However, the contrary case is that all commercial parties want their hard-fought outcomes to be legally binding and would normally be concerned if it was otherwise. Furthermore, an international instrument recognising the legal status of mediation is yet another foundation stone in the credibility and acceptance of mediation in the international order just as courts or arbitration.

And thus the mediation, if it can adapt subtly to regional palettes, will mature into a fine vintage. www.cedr.com

23 UK Mediation Journal, Issue 6

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23

How How much much time time and and money money is is workplace workplace conflict conflict costing costing your your organisation? organisation?

UK statistics show that office workers spend more than two UK statistics show that office workers spend more than two and a half hours per week trying to resolve conflict and a half hours per week trying to resolve conflict We are a leading conflict management and accredited workplace mediation provider.

We a leading conflict management and accredited workplace mediation provider.

Ourare comprehensive courses and mediation provision helps to improve employee Our comprehensive courses and mediation provision helps improve employee relationships, increase productivity and reduce the costs andtotime of formal relationships, increase productivity and reduce the costs and time of formal procedures within organisations. procedures within organisations.

Our services include: Our services include: • Complimentary meditation awareness session • Complimentary meditation awareness session • Internal mediation training • Internal mediation training • External mediation provision for two person • External mediation provision for two person • Team facilitations • Team facilitations • Conflict management courses • Conflict management courses • CPD mediation days • CPD mediation days www.cic-eap.co.uk/specialist-services/mediation-and-mediation-training www.cic-eap.co.uk/specialist-services/mediation-and-mediation-training

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CiC Case Study: External Mediation Partners with Berkshire Healthcare NHS Foundation Trust

By Timmy Kurtuldum, Mediation Manager, CiC

B

erkshire Healthcare NHS Foundation Trust is a community and mental health trust providing a wide range of services to people of all ages living in Berkshire.

The Trust employs approximately 4,300 employees, working in one of the Trust’s many sites or in people’s homes and a range of community settings.

The Trust has worked with CiC, experts in employee wellbeing, for over five years. Primarily, CiC has supported the Trust with the delivery of their employee assistance programme, with external mediation being brought in on a case-by-case basis.

“Our HR managers take a proactive approach to conflict resolution within the workplace when there may be, for example, a grievance or dignity at work issue. If a line manager or employee flags up an issue, the HR team will take practical steps to manage and resolve this informally. But naturally this isn’t always possible and when those involved recognise that a solution is not forthcoming, we sometimes would bring CiC in to support us and introduce external mediation as part of our HR toolkit.

“The first time we brought the CiC team in to support us with external mediation, they were effective and were able to support us in trying to resolve the issue. It was important to us that they know our organisation and the ability to work with them on an ad-hoc basis when the business needs this support, works really well for the Trust.

“We probably have a handful of situations every year when external mediation is an appropriate way forward, and by using CiC for external mediation, we have been able to assure an individual who is experiencing a workplace difficulty, that there is an independent, qualified and experienced mediator who will be objective about the issue they’re facing and help to find a way forward that is agreeable to all parties.

“I am confident that there are a number of benefits to external mediation that we are keen to embrace as an organisation. The independent nature of the intervention and the fact that it can offer a safe and confidential environment for an individual to explore, address and resolve the issue that they’re facing, is important and valued.

“Unlike some organisations, whilst we don’t actively promote external mediation to our employees, it is an important part of our HR toolkit. And when it comes to assessing the impact of external mediation for the organisation, this is something that we would do on a case-by-case basis as each case will have a separate measure of success depending on the issues and those involved.

“Although the usage of external mediation within the Trust is low, anecdotal feedback from the HR team, employees and line managers who have been part of the process, has always been very positive; it has made a difficult and challenging situation manageable and assisted with solving the problems at the root of the issue.

“External mediation ensures that employees experiencing conflict in the workplace can access professional, expert advice.

After an initial conversation with the HR team about a specific case, we can swiftly assess the situation and progress a mediation quickly. Our mediators have diverse backgrounds and are trained to manage very complicated cases in a confidential environment.

As has been the case when we work with Berkshire Healthcare NHS Foundation Trust, the impartiality of our mediators has been vital to the process; they have no ties to the organisation and can help to ensure that we reach a solution that is agreed by all parties and can assist the organisation and individuals moving forward positively,” commented Timmy Kurtuldum, CiC’s Training Manager.

CiC’s bank of experienced mediators are all trained in Professional Workplace Mediation, accredited by the Mediators Institute of Ireland. We work in the public and private sectors, with schools and universities, law firms, local councils, care trusts, international news agencies and international charities.

We offer a range of services, including complimentary mediation awareness sessions, internal mediation training, external mediation provision, team facilitations, conflict management courses and CPD mediation days.

Go to www.cic-eap.co.uk/specialist-services/ to find out more.

25 UK Mediation Journal, Issue 6

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Conflict at Work and its Management

By Paul Latreille, University of Sheffield and Richard Saundry, University of Plymouth

B

Conflict has been said to be part of the human condition.

Small wonder then that it’s also part of the workplace condition. But just how common is it? How big are the costs? And what are organisations doing in response? This article explores selected available data to build a picture of conflict at work and its management.

Incidence & costs Some of the best evidence on experiences of conflict at work comes from a recent CIPD YouGov poll in 2015 of 2000+ individuals. Some 38% reported experiencing an isolated dispute or incident of conflict and/or an ongoing difficult relationship with someone at work in the last year, the most serious often being with their line manager or another team member (CIPD, 2015).

Strikingly, the most common issues concerned differences of personality or working styles (44%). That isn’t atypical, and neither is the fact that conflict is costly to individuals, usually in terms of stress (43%). Negative impacts on health, well-being and absence are well-understood, and almost all HR practitioners can recount anecdotes of long-term sickness absence – years rather than months – with conflict at their core. The impact is also rarely limited only to those directly involved and can damage the psychological contract.

Those individual costs are reflected in the challenges faced by organisations. As an example, we recently undertook a survey of managers at Northumbria Healthcare NHS Foundation Trust (NHCT). While 36% of managers claimed conflict reduced motivation and consequently productivity, substantially the most frequently cited cost by 60% of managers was wasted management and staff time (Latreille and Saundry, 2015). We didn’t seek to quantify this, but wider evidence – albeit somewhat dated – suggests employees spend around 1.8 hours a week dealing with conflict; an annual ‘loss’ nationally of 370 million working days (OPP, 2008). Significant management time is absorbed dealing with conflict, while among HR practitioners a significant minority (43%) report doing so ‘continually’ or ‘frequently’ (CIPD, 2008).

26 26UK Mediation Journal, Issue 6

However, while conflict is typically experienced negatively, it can sometimes lead to positive outcomes. For example, at NHCT more than a third of managers said it led both to better understanding of others and to improved working relationships, even if another 30% reported no positive benefits. The key is how conflict is managed and the organisational culture in which it occurs. A critical feature at NHCT had been the development of a conflict competent culture, with almost 60% of managers reporting the approach as being ‘collaborative’ (i.e. involving joint working/problem solving), with early, informal interventions being the norm.

Resolution & management Despite its prevalence however, conflict remains something organisations still don’t seem to tackle well. For example, just 30% of the respondents to the CIPD YouGov poll referred to above felt their organisation had effective procedures for resolving interpersonal conflict. And fewer than half (46%) said they felt confident raising issues in their organisation, with the same percentage agreeing that mediation is an effective approach to help resolve workplace disputes.

And it’s mediation that has emerged over the past 1015 years as the most commonly adopted tool for dealing with conflict at work. Its use was given additional impetus by the recommendations from the Gibbons Review which highlighted the merits of early resolution and mediation specifically (Gibbons, 2007). Just four years later, the 2011 Workplace Employment Relations Survey found that among workplaces with five or more employees, mediation was included in 62% of grievance procedures and 61% of disciplinary and dismissal procedures (van Wanrooy at al., 2013). Yet it was reported as being used in just 7% of workplaces in the previous 12 months (or 17% of those experiencing employee grievances and 14% with disciplinary cases (Wood et al., 2014)). And that despite well-understood benefits confirmed across a range of studies.

Those include high success rates (typically 85% or more), more expeditious resolution and lower cost compared with grievance

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processes, preservation of relationships, greater confidentiality and, arguably, the capacity to deliver culture change (BIS, 2011).

Participants themselves typically express positive sentiments about the process and its fairness.

Perhaps part of the reason for the modest uptake (Latreille, 2011) is that individuals struggle to see how it might help in their own context. For example, just 13% of the CIPD YouGov respondents said they had a difficult relationship at work that would have been helped by mediation. And as some of our previous work has highlighted, mediation is often seen/used as a last resort and may encounter resistance from line managers who think it undermines their authority and/or perceived competence.

Sustaining mediation can be difficult due to tensions with commercial/operational priorities, especially when there’s also often only limited internal evaluation. There have been laudable improvements in this regard in recent years, and in organisations’ attempts to measure the financial benefits, but it remains the case that mediation may be ‘fragile’ reputationally, and seen as being only as good as the outcome of the latest case (Latreille, 2010).

As we’ve argued elsewhere (Saundry et al., 2014), conflict remains something of a blind spot for most organisations. At best it’s seen as a transactional issue; a problem to be fixed. And it could be argued that mediation – despite being an excellent, effective and versatile tool – perpetuates this by virtue of its reactive nature and focus on resolution (at least in the form most commonly practiced in the UK). Effecting the culture change the UK government has talked of requires it to be part of a more strategic approach to conflict, linked to wellbeing and productivity agendas.

So what might a more strategic approach look like? There are some clues in the US, where many larger, ‘high road’ organisations have adopted Integrated Conflict Management

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Systems (ICMSs). These entail “… a comprehensive, systems approach to the prevention, management and resolution of conflict... changing the philosophy (and, in many cases the terminology) of organizational life” (Lynch, 2001: 207-8). Around a third of organisations in the Fortune 1000 survey conducted

by Lipsky et al. had adopted features consistent with an ICMS (Lipsky et al., 2016). These include coverage of all employees and issues, multiple access points/referral opportunities, and use of a wider dispute resolution toolkit encompassing both rights- and interest-based options (e.g. conflict coaching, peer evaluation etc.). Further elements are support structures including corporate/executive commitment, appropriately aligned incentives and practices, and training, alongside a focus on developing a conflict competent culture.

Conclusions While the widespread development of integrated approaches to conflict management may be a long-term aspiration in the UK, a more immediate and realistic focus could be placed on the role of front-line managers. Although they play a critical role in conflict resolution, our research suggests they lack confidence in dealing with such issues, and are often seen to be as much part of the problem as the solution. One of the many positive features at NHCT is that conflict management is embedded within their HR strategy. Managers are selected and promoted on the basis of strong technical and people skills, and also provided with training. 85% said this helped them do their jobs more effectively and be more confident in dealing with such issues. Providing line managers with key mediative skills may be the first step towards more strategic and effective conflict resolution in UK workplaces.

References BIS (2011) Resolving Workplace Disputes: A Consultation, London: BIS (available at: https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/31435/11-511-resolving-workplace-disputesconsultation.pdf) CIPD (2008) Leadership and the Management of Conflict at Work, London: CIPD (available at: http://www2.cipd.co.uk/NR/rdonlyres/E426E4927AED-46A6-B8F5-92B9CF9725C5/0/4545Leadershipconflict.pdf) CIPD (2015) Getting under the Skin of Workplace Conflict: Tracing the Experiences of Employees, London: CIPD (available at: https://www. cipd.co.uk/Images/getting-under-skin-workplace-conflict_2015-tracingexperiences-employees_tcm18-10800.pdf) Gibbons, M. (2007) Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain, London: DTI (available at: http:// webarchive.nationalarchives.gov.uk/20090609022048/http://www.berr. gov.uk/files/file38516.pdf) Latreille, P. (2010) “Mediation at Work: Of Success, Failure and Fragility”, Acas Research Papers, 06/10 (available at: http://m.acas.org.uk/media/ pdf/1/4/Mediation_at_work_of_success-failure_and_fragility-accessibleversion-may-2012.pdf) Latreille, P. (2011) “Workplace Mediation: A Thematic Review of the Acas/CIPD Evidence”, Acas Research Papers, 13/11 (available at: http:// www.acas.org.uk/media/pdf/l/7/1311_Thematic_review_of_workplace_ mediation.pdf) Latreille, P. and Saundry, R. (2015) “Towards a system of conflict management? An evaluation of the impact of workplace mediation at Northumbria Healthcare NHS Foundation Trust”, Acas Research Papers, 02/15 (available at: http://m.acas.org.uk/media/pdf/5/7/Conflictmanagement-Northumbria-Healthcare-NHS-Trust.pdf)

Lipsky, D.B., Avgar, A.C. and Lamare, J.R. (2016) “The Evolution of Conflict Management Policies in US Corporations: From Reactive to Strategic”, in Saundry, R., Latreille, P. and Ashman, I. (eds.) Reframing Resolution – Innovation and Change in the Management of Workplace Conflict, London: Palgrave Macmillan (available at: https://www.researchgate. net/publication/303792520_The_Evolution_of_Conflict_Management_ Policies_in_US_Corporations_From_Reactive_to_Strategic) OPP (2008) Fight, Flight or Face It – Celebrating the Effective Management of Conflict at Work, Oxford: OPP (available at: https://www.opp.com/ download/item/10e61ce66e29407080ef0caf9f3dc846) Lynch, J.F. (2001) “Beyond ADR: A Systems Approach to Conflict Management”, Negotiation Journal, 17(3), pp. 207-216.

Saundry, R., Latreille, P., Dickens, L., Irvine, C., Teague, P., Urwin, P. and Wibberley, G. (2015) “Reframing Resolution – Managing Conflict and Resolving Individual Employment Disputes in the Contemporary Workplace”, London: Acas (available at: http://www.acas.org.uk/media/ pdf/6/9/reframing_policy_paper_FINAL.pdf) Van Wanrooy, B. Bewley, H., Bryson, A. Forth, J., Freeth, S., Stokes, L. and Wood, S. (2013) The 2011 Workplace Employment Relations StudyFirst Findings, London: BIS (available at: https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/336651/bis-14-1008WERS-first-findings-report-fourth-edition-july-2014.pdf) Wood, S., Saundry, R. and Latreille, P. (2014) “Analysis of the Nature, Extent and Impact of Grievance and Disciplinary Procedures and Workplace Mediation using WERS2011”, Acas Research Papers, 10/14 (available at: http://www.acas.org.uk/media/pdf/2/d/1014-WERS2011analysis-D-and-G-procedures-workplace-mediation.pdf)

27 UK Mediation Journal, Issue 6

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The Psychological Case for Compulsory Mediation in Civil Justice

By Paul Randolph, Mediator, Barrister & Course Leader at the Regent’s University London

I

n October this year the Civil Justice Council’s Working Group published an interim report on ‘Alternative Dispute Resolution’, seen as bringing compulsory mediation in the civil justice system a step closer.

The report acknowledged what mediators have long known, namely that there remains a fundamental problem in making ADR culturally normal.

Mediation has been urged down through the centuries, but why has it fallen upon deaf ears? Why do disputants continue to use a process that is costly, risky, lengthy, public, complex, formal and successful in only 50% of cases, when there is an alternative process that is quick, cheap, confidential, risk-free, easy to use and effective approximately 85% of the time?

The answer is biological. We are not programmed to compromise with our enemies, but rather to fight and win. We have an innate survival instinct which, in dispute, transforms itself to an aggressive emotional need to crush the opposition. It prevents us from acting rationally or commercially.

Mediation is counter-intuitive. It is unnatural to sit down with the perpetrator of an injustice against us, and seek an amicable compromise: it defies all our Darwinian predispositions.

So, left to our own devices, we will never choose to mediate, but will invariably want our day in court. The courts are seen as the only route to justice, and judges the only means of securing vindication.

The time has come for us to make some stark choices. Do we want to spend another 30 years scratching our heads, wondering why those in dispute continue to choose the more painful option? A

28 28UK Mediation Journal, Issue 6

2007 National Audit Office report concluded that despite obvious advantages, few litigants were trying mediation, and more needed to be done to promote the process. 10 years on, little has changed.

How many more times must we hear stories of litigants squandering obscene sums of money on legal fees, and devoting vast amounts of time and energy in litigating seemingly petty squabbles? How often will Judges declare in exasperation “this case should have been mediated,” before we say: ‘enough is enough’? To continue the same measures as have been tried and failed over the past 25 years, and expect a different outcome, is surely insanity?

The Government must now grasp the nettle. The Consultation period provides a great opportunity for a constructive transformation of the Dispute Resolution landscape. I was asked by the CMC Board to draft a proposal in response to the consultation. My model procedure for ‘automatic referral’– as opposed to the toxic concept of ‘compulsion’ -, has been circulated to the CMC membership, with a view to it being submitted to the MoJ as part of the consultation.

The Government would do well to heed the note at paragraph 9.18(a) of the CJC report: “It has to be worthwhile to impose a simple, universal requirement on the parties to do something which will be of benefit in all but a small minority of cases.”

This article has been adapted from the piece originally published in the Times Online and The Brief.

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Disability Mediation

By Ryan Compton, Director, Centre for Resolution

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overnment reports from the Office for Disability Issues consistently point to the ongoing need for disability mediation in the civil and commercial sectors, indicating that disabled people remain significantly less likely to participate in cultural, leisure and sporting activities. Mediation of disability disputes can have immediate practical impacts which benefit both parties, and which inform a wider community.

An example of disability dispute resolution

I recently mediated a dispute between an individual service user and a sports facility which had been ongoing for a decade. The parties involved reached an effective resolution within the course of a single afternoon.

The service user had felt that over that period of time the sports club had neither understood her disability needs, nor made reasonable adjustment to their facility to enable her to make full use of it. The sports facility, on the other hand, felt that the individual had not been prepared to show any flexibility in how and when she was prepared to use their facility.

Failed communication There had been several attempts at mediation, conducted through mediators with no specialist knowledge of disability. Each of these attempts had failed. This attempt at dispute resolution represented a final mediation before the matter was to be escalated to litigation, at potentially significant cost to both parties.

Speedy resolution

With the help of a professional mediator with significant experience of disability mediation and personal experience of disability, it took less than three hours for the parties to achieve a resolution to a dispute which had stretched over ten years.

The understanding each party gained as a result of mediation not only allowed for closure, but also for a new beginning. The two parties continue to have a respectful working relationship to this day.

To find out more about Disability Mediation please visit www.centreforresolution.com/disability-mediation.

Do you have disputes commercially or in the workplace that involve disability?

Disability related disputes can be inflammatory and the use of inappropriate terminology and lack of disability awareness are just some of the many key components that can prevent effective communication. Avoid this by using our expert mediators who specialise in disability.

No matter what type of disability dispute, we have the expertise to resolve the issue quickly, sensitively and effectively.

REALISE, REACT, RESOLVE!

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Contact us for more information about Disability Mediation. t: 01905 21717 | e: info@centreforresolution.co.uk www.centreforresolution.com/disability-mediation

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ADVERTORIAL

Independent Mediators Limited Independent Mediators Limited is a group of leading, full time commercial mediators whose independent practices are centrally managed.

The company operates both in the UK and internationally.

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ndependent Mediators (IM) was formally launched in June 2007. We operate as a mediation chambers. All the mediators work full time as mediators and are only appointed through Independent Mediators.

Our chambers consists of Charles Dodson, Phillip HowellRichardson, Kate Jackson, Michel Kallipetis QC, Jonathan LloydJones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor.

When forming IM our aim was to make the process of instructing mediators simpler and to recognise and to meet the requirements of instructing solicitors and individuals. We are very conscious of the need to provide a competitive service and are recognised as offering exceptional value for money. We make the country’s top mediators available at affordable prices for any size dispute. We do not charge any admin fees to the parties.

Only mediators recognised by the leading directories as being in the top tiers of UK mediators are invited to become members of Independent Mediators. We are unashamedly “elitist” offering some of the best mediators in Europe. We will never offer an inappropriate mediator for any instruction.

The concept has worked extraordinarily well. Instructing solicitor’s feedback shows that not only was our business model correct but that the quality of the mediators’ performance and the administrative service that supports them has probably exceeded expectations.

The number of mediations per year has consistently increased since our launch and now numbers 500+ per year. Since we launched the group we have received in excess of 4200 appointments.

The parties to cases IM members mediate range from litigants in person to multinational companies; with sums claimed from £25k to multi billion.

Appointments are received from a broad range of sources including, top ten City firms, international law firms, regional and high street practices, increasingly from in-house lawyers, government departments, security services, local authorities, police forces and litigants in person.

The subjects mediated to name a few categories cover all aspects of commercial/financial services/banking/employment/ professional negligence/regulatory/class actions and insurance disputes.

Our appointments are increasingly from international sources with the number growing each year. Instructions from lawyers, clients and governments along with training and consultancy means our mediators have worked with over 85 countries worldwide.

Following the implementation of the European Mediation Directive we took the decision to recognise the mediators experience and to offer our services to a wider audience who may wish to take advantage of the combined expertise in the growing areas of International/Cross Border/Multiparty disputes.

Our international presence has been identified by the international directory Who’s Who Legal: Commercial Mediation.

They acknowledge IM as a leading mediation chambers recognised for the excellence of their specialists.

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31 UK Mediation Journal, Issue 6

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Mediation in Cross Border Disputes - A Natural Choice....

But Not For All

By Andrew Miller QC & Sulman Iqbal Andrew Miller QC is QC mediator with over 25 years of experience of dealing with and resolving commercial disputes. He mediates in a wide range of commercial sectors both domestically and internationally and has been involved in mediation since 1996. Andrew is head of the ADR practice group at 2 Temple Gardens.

Sulman Iqbal is a junior barrister at 2 Temple Gardens who specialises in commercial work and whose practice includes international cross border disputes.

C

ross border disputes are invariably complex, multifaceted and multi-layered. By their very nature they will inevitably involve individuals or organisations based in different countries using different legal jurisdictions.

These international disputes present the parties and those acting on their behalf with an array of complex legal and procedural issues, which are often overlain with equally significant cultural issues. As such arbitration has usually been seen as the appropriate means of dispute resolution, with mediation taking more of a back seat.

The Choice of Dispute Resolution Forum Arbitration is a well-established form of ADR in the context of cross border disputes, with bespoke centres adopting

32 32UK Mediation Journal, Issue 6

institutional procedural rules located globally and laws designed to respect the finality and enforceability of arbitral awards.

However, increasingly arbitration has become a more expensive and cumbersome method of dispute resolution. An “International Arbitration Survey” conducted by White and Case and Queen Mary University in 2015 found that whilst there was a general increase in the number of cases referred to international arbitration, there was dissatisfaction with several key aspects of the process.

In respect of improvements to the arbitral process many of those surveyed whilst continuing have strong support for certain fundamental characteristics of arbitration called for improvements and innovations to address issues concerning, most of all, the cost and speed of arbitrating. High cost was ranked as the

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worst characteristic of international arbitration. Concern was also expressed over the reluctance by many tribunals to act decisively in certain situations, which ultimately led to delay, and therefore greater cost. The survey showed that whilst there was strong support for many of the characteristics of arbitration there was concern over the nature of a process that failed to incentivise efficiency by those in control of the process, namely the lawyers and arbitrators.

Mediation in cross border disputes – the obvious choice Mediation presents an increasingly attractive alternative to arbitration as a form of ADR in cross border disputes. Mediation has the potential to resolve issues efficiently and at substantially lower costs. The introduction of the Cross Border Mediation Directive 2008/52/EC has helped to solidify mediation’s status as a method of resolving international disputes. Given the attitudes of those involved in the arbitral process and the rise of the awareness of mediation in general, there are several reasons to think that mediation will play a bigger role in cross border disputes in the future.

Firstly, the purpose of mediation is to bring parties together on issues and to resolve them by consent. A focus on narrowing issues generally helps to reduce the time and associated expense of litigation or arbitration. The latest report by CEDR on mediations within England and Wales suggests that in 2016 the commercial mediation profession saved business £2.8 billion in “wasted management time, damaged relationships, lost productivity and legal fees.” (The Seventh Mediation Audit - 2016). Second, the non–adversarial nature of mediation makes it highly flexible, which is particularly suited to cross border disputes which by its nature often involve parties from different customs and varied perspectives. Finally, significant developments have been made following the Cross-Border Mediation Directive 2008/52/EC in disputes involving a party domiciled in a Member State. In particular, Article 6 addresses enforceability, Article 7 ensures confidentiality and Article 8 prevents parties being prejudiced by limitation periods in choosing to mediate.

Therefore, the prospects of cross border mediation playing a big part in international dispute resolution look increasingly bright. The effect of Brexit on international mediation remains to be seen.

What is holding back the use of mediation in cross border disputes?

Given the above, mediation should therefore be ascendant as a method of ADR in cross border disputes. However, as cited in the International Arbitration Survey some attitudes within the legal profession threaten to hold back the progress of cross border mediation.

A recent study of the effectiveness of the Cross Border Mediation Directive, by the European Commission, showed some positive results. For example in Denmark, it was reported that 65-75% of mediation cases concluded with an agreement.

However, the study also found that generally there was a low rate in the use of mediation. For example in Germany in 2010 there were 40-50,000 mediations out of 1,586,652 judicial proceedings.

What is the reason for the relatively low uptake in mediation?

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The study suggests that key factors include a lack of information, variations in the quality of mediation and the relatively recent transposition of the Directive in some countries. However, the key problem with uptake was found to be by reason of the widespread dispute management procedures in various jurisdictions which followed an adversarial approach as opposed to the compromise approach. The compromise approach of course characterises mediation. The reluctance to move from the adversarial approach, where matters are dealt with by adjudication and a final determination, to a compromise approach where matters are resolved by the parties, was said to be impeding the smooth application of the Directive.

Responsibility for engendering an adversarial approach lies, in part, with legal professionals. Indeed, it is striking that only 5% of respondents to the International Arbitration Survey listed mediation as the preferred method of resolving cross border disputes. It is to be noted that the respondents to the survey were defined as “stakeholders in international arbitration”. Even so, it perhaps reflects a general reluctance on the part of legal practitioners dealing with cross border disputes to contemplate mediation as a primary dispute resolution process.

There are of course many reasons for this including perceptions, perhaps as to applicability and efficiency of mediation to international cross border disputes. However, there are reasons to suggest that an element of self-interest or self-preservation might also feature. It is and has always been the case that the quicker a case is resolved the less costs are incurred, which translates into reduced fees for the legal professionals involved in the dispute. It remains a live issue and on-going debate as to whether this creates a disincentive against recommending mediation as a form of ADR in both national and cross border disputes. However, in the case of arbitration what is definitely lacking is any incentive or obligation on the part of arbitrators to encourage the parties to enter into mediation. The contrast between an arbitrator’s and a judge’s obligation in the UK legal process, in respect of encouraging mediation is selfevident.

Whether it is entrenched views about how to resolve disputes or whether there is an element of self-interest, or a lack of incentive to encourage arbitration, it is clear that there is a need for a shift in attitude towards mediation on the part of the legal profession and arbitrators.

The future is bright Significant investment has been made to make cross border mediation a viable and effective tool in cross border dispute resolution. Combined with the relative expense and delay of other forms of dispute resolution, there is no reason why mediation should not form a core part of resolving international disputes in the future. There may need to be a shift in attitudes within the legal profession in order for mediation to achieve its full potential. However, ultimately commercial disputes are driven by commercial considerations and the commercial case for mediation will not be difficult to prove.

33 UK Mediation Journal, Issue 6

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Mediating Across Cultures I

n helping parties to resolve their differences, an effective mediator needs to give attention both to issues and relationships. While the content of the dispute, whether war or widgets, is plainly critical, so is how those involved understand one another.

A critical underlying influence is culture - or “how we do things round here” - the beliefs and values each party brings to the dispute, which can have a profound effect on the negotiations.

The same words may mean different things in different cultures.

Even non-verbal communication can lead to misunderstandings e.g. eye contact is expected in some cultures while in others it is rude and disrespectful.

Generalisations about national characteristics are rarely helpful, but experience suggests some broad patterns. US businesses are often represented in mediation by their in-house counsel. As the lawyer often acts as principal this can make decision-making more effective. But it can also mean a more robust and more positional style of negotiation.

Westerners negotiating with Japanese businesses may find it difficult to read signals and whether a good relationship has been established. In one example it seemed there was a good enough relationship for the Western party to make an offer to the Japanese party. But no response was forthcoming, and when months of ‘radio silence’ followed it seemed the negotiation had failed. Unexpectedly there then followed a diametrically different counter-offer, showing that a relationship of trust had indeed been established, which led to agreement in due course.

As well as national cultures, other groups have their own cultures in their beliefs and ways of thinking and acting and even jargon. These may be social e.g. activities or neighbourhoods, or

Lawrence Kershen QC Quanta Mediation

CIVIL MEDIATION COUNCIL

Alan Greenberg Quanta Mediation

work e.g. businesses or professions - in fact any community that shares common beliefs and values.

To get them to resolution a mediator often has to translate between different sets of values and priorities. We believe that a very effective way to address these differences is to have comediators who speak the language both of business and law.

It enables the mediators to be alert not only to the parties’ stereotypes but also to our own cultural biases, which can otherwise lead us to side with a party whose culture most resembles our own. We are also able to balance the parties’ preferences for a direct or indirect communication style.

Other specific cultural differences, identified by Geert Hofstede, include the extent to which less powerful members of society defer to others in decision-making; whether individuals are looking out for themselves or the group of which they are members; whether a party’s dominant values are achievement and success, or about quality of life; the extent to which people can handle uncertainty and try to avoid it; and whether the party takes a longer- or shorter-term perspective.

Whether by drawing attention to these elements at the beginning of mediations across cultures, or even better in meetings with the parties before the mediation day, effective mediators need to be aware of these differences and look for ways to address them.

Lawrence Kershen QC and Alan Greenberg are Quanta Mediation www.quantamediation.co.uk. They can be booked exclusively through In Place of Strife, The Mediation Chambers on 0333 014 4575 or at www.mediate.co.uk.

35 UK Mediation Journal, Issue 6

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Blockchained Melody

By Matthew Rushton, JAMS International International mediation is simultaneously hard to avoid, and hard to find. Matthew Rushton explores the international paradox, and where it might lead.

A

sk the governing classes about London as a global legal market, and out march the clichés like soldiers on parade: the infrastructure, the legal expertise, the admirably (indeed inconveniently) independent judiciary, and a centuries-long corpus of mercantile law. The time zone; the financial services and insurance markets; the language, the hotels, the restaurants. These, historically at least, have been the rails the litigation gravy train has ridden for decades.

“Global Britain”, then, is nothing new, and English law proves the point emphatically. Four cases out of five before what are now the Business and Property Courts have no UK parties; three out of five have no obvious connections to the UK. The presence of foreign parties mediating disputes in London, therefore, should be no surprise to anyone.

But let’s take a closer look at these “international” mediations. The parties might be from China, India or Hong Kong, but…the language is English. The documents are in English. The law is English, the law firms are English (occasionally US – with English solicitors), and the mediator is, of course, English or English-qualified.

This, for the most part, is international commercial mediation, but a bystander might be forgiven for suggesting otherwise. Lacking concepts like transnational law and a recognition and enforcement convention like the New York Convention, mediation remains international arbitration’s ambitious younger cousin who’s yet to find his or her passport. The reality, then, for now, is that mediation orbits irresistibly around the gravitational centres of the world’s international courts: London, New York, Hong Kong, Singapore.

So while the mediation community abounds with culturally sensitive and cross-culturally accredited mediators, the opportunities to apply those skills as intended are regrettably few. Cross-cultural, cross-border mediation, therefore, might seem less a practice and more an ambition.

But, times are changing. The combined forces of the “internet of things”, so-called big data, and blockchain technology seem set to have a profound effect on how we interact cross-border. Of these, blockchain presents by far the most exciting opportunities for mediators. At a prosaic level it’s simply an incorruptible ledger that can be used to

36 36UK Mediation Journal, Issue 6

record transactions. The opportunity it presents, though, is potentially transformative. Its evangelicals will tell you we’ve only yet experienced the “internet of information”; the next evolution will be the “internet of trust”, built on blockchain, and a catalyst for similarly seismic change. In the blockchain world, disputed facts will become a thing of the past. Elaborately drafted contracts will be replaced by ‘smart’, self-executing, self-enforcing contracts where buying and selling can be executed simultaneously without the need for intermediaries, brokers, banks and perhaps even lawyers.

It seems far-fetched, but IBM, AXA, and Allianz are already offering smart contracts for a range of (mostly financial services) products built on private blockchains.

Where does this leave mediation? If there’s one certainty it’s that human existence and disputes are inseparable.

There will be disputes, and mediation – with its inherent flexibility – is well placed to adapt to new environments.

Mediations will likely be online, and likely be a primary means of resolving disputes away from the procedures and rules of national courts. As blockchain becomes more ubiquitous, mediation’s current deficiencies in an international context will diminish in importance.

The old order is changing, and perhaps faster than many might like. Mediation however will be a part of the new order, unmoored from international courts, and simply available where needed.

So, international mediation, I’m prepared to bet, has a bright, decentralised future. Seek and ye shall find.

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Workplace Mediation in the Post-Weinstein World

By Robert Still FCIPD of STILLHR A surge in requests for workplace mediation

The accusations of sexual harassment in Hollywood against Harvey Weinstein have seen a tide of allegations ripple around the globe. As more women, and men, stepped forward to make allegations, the actress Alyssa Milano asked victims of sexual assault to come forward in a show of solidarity using #MeToo. Twitter confirmed to CBS News on 24 October that over 1.7 million tweets included the hashtag “#MeToo,”. Facebook statistics showed more than 12 million posts, comments and reactions regarding “Me Too” in less than 24 hours.

Allegations were made in many areas including the theatre, politics as well as more traditional workplaces. The BBC is dealing with a “spike” in complaints of sexual harassment, currently investigating 25 individuals, where last year only three cases were investigated.

At STILLHR we have seen a surge in requests from organisations to support them in resolving allegations from staff emboldened by an atmosphere, in part fuelled by the media, to challenge behaviour they deemed to be unacceptable in the workplace.

Inappropriate behaviour or sexual harassment?

Whether a hand on the knee is inappropriate, let alone sexual harassment, will depend on a variety of factors, most importantly purpose but also context, frequency and response. Harassment as defined in the Equality Act 2010 is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”

Mediation can be a powerful and effective option, when appropriate...

Allegations of inappropriate behaviour which could constitute sexual harassment need careful deliberation. One first needs to determine whether the allegation is of a sufficiently serious nature that a formal complaint and investigation is more appropriate.

Mediation is better suited when both parties acknowledge the breakdown in the working relationship and voluntarily seek a means to improve and find resolution. In the case of a one-way allegation the accused is often left with what can appear to be limited choices – mediation or a formal investigation. In all cases the employer must take care of both the accuser and accused.

“No harm intended”

www.stillhr.com Call Robert Still: 07932 762448 UK coverage with centres in London and Yorkshire

Where behaviour unintended to cause offense has resulted in discomfort and conflict, the process of mediation can be healing and reassuring. Mediation enables voices to be heard, explanations to be made, misunderstandings to be corrected leading to agreed changes going forward to create a better working relationship.

The tried and tested conflict resolution and mediation techniques can help save working relationships and avoid the massive distraction, emotional upheaval, lost time and distress which comes from resolving formal allegations.

To learn more about STILLHR’s sensitive and effective approach, call Robert Still for an initial informal confidential chat on 07932 762 448.

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Could Mediation be the Key to Breaking the Brexit Deadlock?

By Roger Levitt, Business and Property Mediator

B

rexit negotiations continue to hit the headlines – predominantly due to their lack of progress. It is eight months since Prime Minister Theresa May triggered Article 50 and with just sixteen months to go until Britain leaves the EU, there is still a huge amount to negotiate. Why is it all taking so long and why are we regularly being told by the EU negotiators that talks are deadlocked? Debate is raging about what will happen if no agreement is reached, and an OECD report warning “no deal” would see investment seize up, the pound hit new lows and the UK’s credit rating cut.

Positional negotiation getting nowhere

The Brexit negotiations are a classic example of where mediation could help break the impasse. Currently, little progress is being made because both parties are continuing in their positional negotiations, playing to their own audiences. Professional negotiators should be advising them that in order to move forward, they need to take a new approach. It’s hard to believe that our negotiators have a negotiation strategy in place. From the evidence of the talks Are they truly able to listen to the other side’s needs, in order to facilitate resolution?

Serving their constituents – But wait, was there a Breakthrough we missed?

The Brexit negotiations are of course made more complex by the politics involved. Some of those leading the negotiations didn’t even vote for Brexit. The EU doesn’t want to set a precedent for other nations to leave. But did we miss a breakthrough? That both parties were in

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agreement – that the ball was in the other party’s court and ‘we’re running out of time’ and we’re just about to walk of a cliff edge.

But political leaders have a duty to serve their constituents. Unsuccessful negotiations won’t benefit the UK or the remaining members of the EU. Personal emotions aside, the world needs negotiations to make progress and a deal to be reached.

Mediation could be the key

I believe that mediation could be used to assist these negotiations, just as in so many other cases. Mediation makes resolution the priority, above all personal, emotional and political standpoints. With experienced non European mediators involved, parties on both sides can explore possibilities for resolution. Conflict management could help separate the problems from the people involved, develop mutual respect and facilitate parties to uncover solution options together. This should be a collaborative process with our European friends, respecting each side’s needs and interests As an experienced and innovative Mediator, accredited in Business Mediation for Commercial and Residential Property, Construction, Business and Commerce, Retail, Restaurant, Healthcare, Franchising, and financial related disputes I can help.

With over 33 years’ experience as a property solicitor I am fully versed in the legal framework of property and business disputes, and passionate that mediation provides a fresh approach, with a 75% success rate.

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Anglo – German Mediation Approaches – Why so Different?

By Rebecca Attree M.A. (Cantab), International Civil and Commercial Mediator, Hexagon Mediation, www.hexagonmediation.com

T

he UK is still in the EU alongside Germany, yet recently I was surprised when working with a German accredited Mediator how practices and techniques differ greatly between our two countries. Lack of awareness of these differences could easily give rise to loss of trust in the process or the other party.

First, in England it is usually expected that each party will begin in a separate room and have a “pre-mediation chat” with the mediator. In Germany, such practice may raise questions of bias and lack of neutrality on the part of the mediator. A German Mediator will almost always invite both parties to begin in the joint room together straight away.

And there, in Germany, they are likely to remain, for some time.

This is in contrast to the English preference in civil mediations to move to private caucuses (meetings) at an early stage after a joint open session (if such session even happens at all).

During this joint open session under the German Model it is likely that parties may express emotion, probably more so than they would be encouraged to do so in England. “Venting” is given more merit in Germany than often is the case in England.

Indeed a core part of the lengthy German Mediation Training is a module in Non-violent Communication as advocated by Marshall B. Rosenberg, PhD. (An excellent communication model used to negotiate peace treaties and with terrorists, yet to play a part in English Commercial Mediation training).

So from this we may glean that a German mediation is more likely to be direct and face to face than in England.

If as a party you doubt whether you will be able to express your emotions well at mediation, fear not. Some German Mediators engage the technique of “doubling”. This involves the mediator kneeling next to the party and seeking to express their emotions for them. The party will advise if they have got it right, wrong, or almost right.

What about the language of the mediation? This should be agreed at the outset, and stuck to. Some international disputes use a mediator that can speak two languages fluently. However for certainty it is best to keep all discussions in one language.

What role is the mediator likely to adopt? In England the

40 40UK Mediation Journal, Issue 6

purist approach is the mediator is a facilitator, who will enable communication between the parties and assist people in dispute to assess their case and the other party’s case. Many mediators will go further and either subtly (by questioning and body language) or overtly evaluate the strengths and merits of each party’s case. In Germany, the mediator will start being facilitative and might later ask the parties whether they wish an evaluative approach.

Mediation is certainly a more cost effective and quicker way to resolve disputes than going to court. The cost of a mediation in England will vary depending upon the experience of the mediator, the value of the dispute and other factors such as the complexity of the issues and the number of parties in dispute.

Whatever that amount may be, a mediation in Germany is likely to be cheaper, since the mediator’s overheads and venue costs are usually lower. If the language of the contract being disputed and the working language of the parties is English, it is best to have a mediator who has an excellent command of English.

I was recently asked how ethical it is if one party is speaking in a foreign language and you understand it, but do not divulge this to be the case. I believe such disclosures should be made at an early stage to avoid any breach of trust arising. However not every culture would take such a transparent approach… So ascertain at an early stage the linguistic skills of those with whom you are mediating if you are planning to have discussions in a language other than the one designated for the mediation.

Finally “getting on with it”. The main remedy before a German Court for breach of contract is specific performance. Something that is rarely ordered by the English courts, who more readily award monetary damages. Therefore expect a German business to come to mediation with a mind set borne from that legal approach. They will most likely expect the failing party to remedy any defects and execute the contract. Money alone is unlikely to solve the dispute.

In international mediations even more care should be taken than in domestic ones not to jump to assumptions and to find out the approaches a mediator is likely to take well in advance.

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Changing the face of human resources through mediation

By Mia Forbes Pirie A skilled mediator, trainer and conflict coach, Mia specialises in resolving difficult conflict as well as providing mediation skills training. Mia has worked with directors and boards restructuring organisations, individuals in conflict. In addition to Commercial clients, she has worked with Members of Parliament, governments, religious organisations (including the Church of England), NGOs, and charities. She has also spoken at Chatham House on conflict resolution.

W

hy is it that human resources can be so unpopular? In some organisations where I have run workshops or coaching clinics, they set up a separate email address thinking that staff might not attend if the email came from HR. The tragedy is that a good Human Resources department performs a vital role in an organisation. Unfortunately, HR is often undervalued and underappreciated. The use of mediation, in a variety of forms, and mediation skills training could help turn that around. It could make HR more approachable and more of a resource for organisations, both preventing disputes and improving organisational culture.

For many people, bringing any matter to HR is daunting. This is understandable given that any kind of formal grievance involves a significant process that can impact lives. But what about those smaller or medium-size issues, many of which eventually turn into larger issues and formal grievances? Not making HR more approachable for matters at earlier stages means that they have to escalate before they can be resolved.

Setting aside the considerable direct financial cost, in terms of capital and man hours spent preparing for an employment tribunal

42 42UK Mediation Journal, Issue 6

or going through a grievance procedure, there is the personal cost to each individual involved, as well as to the morale of the wider team they work in. That cost can have a huge impact on workplace culture and overall productivity. This means more stress, broken relationships at work, stressed teams and a less productive working environment. So why is HR not the first port of call when employees begin to feel anxious about a situation at work?

ACAS suggests doing our best to resolve situations informally.

And perhaps most HR professionals do that. But do organisations do enough early on and are most HR professionals sufficiently equipped to really deal with these issues on a less formal footing?

To be fair, most people, including HR professionals, are not comfortable with conflict or able to support people who are in conflict in a meaningful and authentic way. Those skills require a different sort of training. As a consequence, all too often people end up avoiding conflict. This means that situations have to deteriorate before they are dealt with. As the old adage goes “a stitch in time saves nine”.

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“Customers will never love a company

The solution comes in three main parts. First, better processes which give more options for resolving issues less formally at an earlier stage. These options include mediation, conciliation and informal intervention of an HR professional trained in mediation skills. Some already exist but all need to be detailed in terms of process and practice and used in every case that comes before HR where they might be appropriate. More often than not the right informal option will save everyone involved time, money, and significant personal costs.

Second, more training in mediation skills and having difficult conversations is key. HR professionals need to be trained in mediation skills so that they can more comfortably support parties.

This does not mean that they have to act as mediators (although they might be able to in some instances). Good mediation skills training will mean that they will be more comfortable with conflict and people in conflict. They will be able to help facilitate better discussions where smaller issues arise and be able to be more genuinely supportive when the stakes are higher. It is also helpful for staff to be trained in how to have difficult conversations.

“

until the employees love it first

In addition to avoiding disputes, this can increase their productivity and creativity, as well as improving team dynamics.

Third, it is important to recognise the trickier situations where it will be necessary to call in a professional mediator. Even with inhouse staff mediators, some cases will require more independence and expert skills. At the extreme, I have mediated cases involving multiple grievance claims where HR had almost given up on the possibility of an informal solution and helped find a compromise that all parties were happy to work with.

As Simon Sinek says “Customers will never love a company until the employees love it first”. HR should be a key part of organisational culture. Using mediation skills could change the face of HR making it more approachable. From the employees’ perspective, HR could be a place that they feel they can turn to and seek support in times of need. This is what companies and employees genuinely need to thrive. More use of mediation skills can help prevent grievances and positively transform organisational culture.

43 UK Mediation Journal, Issue 6

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GILL MANSFIELD MEDIATION IN PLACE OF STRIFE INDEPENDENT MEDIATORS JAMS INTERNATIONAL KINGSWAY LAW MEDIATED DISPUTE SOLUTIONS LTD PAUL RANDOLPH AT REGENT’S UNIVERSITY LONDON AND AT THE TUTU FOUNDATION UK ROGER LEVITT SHERIDAN RESOLUTIONS LTD STILLHR

ADR-ODR INTERNATIONAL LTD t: +44 (0)20 3488 1979 e: info@adrodrinternational.com w: www.adrodrinternational.com We have a panel of internationally distinguished mediators who cover over 10 countries, speak over 15 languages and cover a huge range of specialisms. To join our panel, receive exclusive discounts and have your profile featured on our website, email info@adrodrinternational.com

CEDR t: +44 (0)20 7536 6060 e: adr@cedr.com w: www.cedr.com Europe’s largest independent commercial and workplace dispute resolution provider: CEDR has worked with over 100,000 parties in commercial disputes and helped resolve over 300,000 consumer complaints across 30 sectors. A select few of the individuals CEDR trains progress to join the CEDR Mediation Panel, which currently comprises 200 mediators speaking 15 different languages.

CENTRE FOR RESOLUTION t: +44 (0)1905 21717 e: info@centreforresolution.co.uk w: www.centreforresolution.com Centre for Resolution provides mediation services across the UK including family, civil, commercial and workplace. Our mediators are also specialists in disability, with over 10 years of experience in the sector. They understand how to resolve all disputes regarding disability and equality, in a sensitive, quick and highly effective way.

CIARB t: +44 (0)20 7421 7444 w: www.ciarb.org/dispute-appointment-service CIArb’s Dispute Appointment Service provides quick, confidential and cost effective methods of dispute resolution and dispute avoidance for civil and commercial cases. It utilises highly trained and suitably qualified ADR practitioners selected from the CIArb membership to assist in resolving disputes.

44 44UK Mediation Journal, Issue 6

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CiC MEDIATION t: +44 (0)20 7938 0945 e: Timmy.kurtuldum@cic-eap.co.uk w: www.cic-eap.co.uk a: 23 Kensington Square, W8 5HN Contact: Timmy Kurtuldum CiC’s professional workplace mediators have a wealth of expertise and are highly skilled at managing and identifying areas of concern and facilitating open exchange whilst remaining totally impartial. Our services include external mediation for two party and team disputes, internal mediation training and conflict resolution training to effectively manage workplace disputes.

CMP RESOLUTIONS t: +44 (0)1763 852 225 e: info@cmpresolutions.co.uk w: www.cmpresolutions.co.uk a: Low Farm, Brook Road, Bassingbourn, Hertfordshire SG8 5NT Contact: Richard Peachey We believe no-one should fear conflict at work. Established in 1989, we are the UK’s largest conflict management services provider, both nationally and wider. Our mediators each have more than 10 years’ experience in workplace mediation, and can call on varying models of mediation to meet the needs of parties and clients, so that any situation can benefit from mediation. We have a national presence, diverse mediators, a 24-hour turnaround, and a 98% success rate. So call CMP Resolutions, truly the mediation experts.

CONSENSIO t: +44 (0)20 7831 0254 e: hannah.king@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 51 Musard Road, London, W6 8NR Contact: Hannah King 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.

CORE SOLUTIONS GROUP t: +44 (0)131 524 8188 e: info@core-solutions.com w: www.core-solutions.com For nearly twenty years, Core has provided a comprehensive mediation service at the highest levels in commercial, business, management, public sector and other disputes. Led by highlyranked John Sturrock QC, we work throughout the UK and beyond, providing a high quality, independent mediation and facilitation service, as well as specialist coaching and training.

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 was established in 1999 and has grown steadily by providing excellent specialist mediation. Our fully accredited and experienced Civil/Commercial/Workplace and Family mediators have a wide range of professional backgrounds, ensuring you can choose the right person for your dispute. We are able to help you with small and large workplace and employment problems, as our workplace team can tailor their service to suit your needs thereby saving you management time and costs.

45 UK Mediation Journal, Issue 6

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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.

GILL MANSFIELD MEDIATION t: +44 (0)7907 367 467 e: gill@gillmansfieldmediation.com w: www.gillmansfieldmediation.com Gill is an effective commercial mediator who gets results. Her thorough and energetic approach helps individuals and companies identify workable solutions and achieve positive outcomes. Gill is an experienced CEDR accredited and CMC registered mediator. She has successfully mediated disputes on both sides of the Atlantic and has extensive international dispute resolution experience.

She is also a member of the World Intellectual Property Organisation’s IP mediation panel and the Chartered Institute of Arbitrators’ panel of experienced civil and commercial mediators.

IN PLACE OF STRIFE t: +44 (0)333 014 4575 e: info@mediate.co.uk w: www.mediate.co.uk a: International Dispute Resolution Centre, 70 Fleet Street, London EC4Y 1EU 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 Leading UK and international mediation chambers consisting of nine highly experienced mediators; Charles Dodson, Phillip Howell-Richardson, Kate Jackson, Michel Kallipetis QC, Jonathan LloydJones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor. Mediating commercial and civil disputes, the number of mediations per year has consistently increased and now numbers 500+ per year. Since launch in 2007 the group has received in excess of 4000 appointments.

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

®

JAMS International is part of JAMS, the world’s largest private provider of ADR services. From its London office, JAMS International provides arbitrators and mediators for cross-border and UK domestic disputes across a full range of industry sectors and practice areas.

46 46UK Mediation Journal, Issue 6

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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.

MEDIATED DISPUTE SOLUTIONS LTD t: +44 (0)020 7993 6869 e: info@mds.london w: www.mediateddisputesolutions.uk a: 85 St Barnabas Road, Woodford Green, Essex, IG8 7BT Contact: Michael Butterworth We are registered with the CMC as a mediation provider. Our professional panel has over 50 years of combined mediation experience, providing a safe place to resolve civil, commercial, community, intergenerational and family disputes. A phone call connects directly to a mediator.

We also provide training and mock mediations.

PAUL RANDOLPH AT REGENT’S UNIVERSITY LONDON AND AT THE TUTU FOUNDATION UK t: +44 (0)20 8339 0767 e: randolphp@regents.ac.uk, paul@paulrandolph.net w: www.regents.ac.uk/RSPP, www.paulrandolph.net A leading mediator, trainer and writer, whose approach adopts a subtle focus on the psychology of conflict. He has mediated successfully in a wide variety of disputes, including commercial, workplace, family property and finance, and professional negligence matters, but with particular expertise in conflicts with high emotional content.

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.

SHERIDAN RESOLUTIONS LTD t: +44 (0)20 3753 5350 e: caroline@sheridanresolutions.com w: www.sheridanresolutions.com Contact: Caroline Sheridan Caroline is a leading mediator recognised in both the Chambers UK and Legal 500 directories.

She has a thriving mediation practice and clients say she is ““extremely organised and meticulous” and “quickly gets to understanding and building rapport”. She is noted for her “methodical, relaxed, approachable and open” manner. Additionally, Caroline is in demand as an Executive Coach and Supervisor and her company, Sheridan Resolutions Ltd runs management and leadership development programmes and she is Chair of the CMC’s Workplace and Employment group.

47 UK Mediation Journal, Issue 6

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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, Olaleye Oladapo and Liz Katis. Over 10 years’ experience across the UK. CMC Registered Mediation Provider 2017. Resolving individuals and team conflict.

Mediation

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UK coverage with centres in London and Yorkshire

t: +44 (0)20 3488 1979 e: info@adrodrinternational.com w: www.adrodrinternational.com All of our delegates will be trained for a dual qualification in face-to-face and online mediation. All of our training courses are tailor-made by industry experts across the Civil-Commercial, Workplace and Family mediation sectors. We also offer top up ODR courses and masterclasses. To sign up email info@adrodrinternational.com

CEDR t: +44 (0)20 7536 6000 e: training@cedr.com w: www.cedr.com CEDR Mediator Skills and Workplace Training are five-day programmes of comprehensive tuition and participation in effective dispute resolution where participants are trained and assessed for CEDR Accreditation, internationally recognised as the standard of excellence. CEDR has accredited over 7,000 mediators in over 70 jurisdictions.

CIARB t: +44 (0)20 7421 7444 At CIArb’s core is its delivery of training, education and qualifications. The Institute has established a worldwide reputation for excellence in these areas with courses suitable for all levels of experience. Our Training Pathways deliver expert know-how and support career progression in the ADR field.

48 48UK Mediation Journal, Issue 6

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CiC MEDIATION t: +44 (0)20 7938 0945 e: Timmy.kurtuldum@cic-eap.co.uk w: www.cic-eap.co.uk a: 23 Kensington Square, W8 5HN Contact: Timmy Kurtuldum As one of the UK’s leading providers, CiC offers a comprehensive 5 day workplace mediation training. Designed for individuals wishing to develop and offer professional level mediation skills either as part of an internal mediation service or as independent practitioners. In association with Buon Consultancy

CMP RESOLUTIONS t: +44 (0)1763 852 225 e: info@cmpresolutions.co.uk w: www.cmpresolutions.co.uk a: Low Farm, Brook Road, Bassingbourn, Hertfordshire SG8 5NT Contact: Richard Peachey Established in 1989, we have led the field of workplace mediation, setting up the UK’s first inhouse mediation service for Birmingham City Council. Since then we have set up hundreds of in-house services for employers large and small. We offer a range of endorsed training, from short workshops to raise awareness, through internationally recognised certificates in workplace mediation programmes, and advanced learning.

CONSENSIO t: +44 (0)20 7831 0254 e: hannah.king@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 51 Musard Road, London, W6 8NR Contact: Hannah King 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.

CORE SOLUTIONS GROUP t: +44 (0)131 524 8188 e: info@core-solutions.com w: www.core-solutions.com Core’s flagship mediation training course is highly regarded across the UK and beyond. Tried and tested from years of experience in mediation and in some of the toughest negotiations, our internationally recognised team of coaches is led by senior mediator, John Sturrock QC. “It simply is the best course I’ve ever attended. The whole course was incredibly interesting, engaging and challenging!” - Participant from major bank. Registration for Core’s 2018 courses is open.

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 Training Division has a team of high profile trainers offering established and bespoke courses covering Negotiation and ADR Skills, Managing and Resolving Conflict, Difficult Conversations and Coaching and Mentoring on a one to one or team basis. Please contact Mary Banham-Hall for details of programmes, trainer profiles and costs.

49 UK Mediation Journal, Issue 6

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PAUL RANDOLPH AT REGENT’S UNIVERSITY LONDON t: +44 (0)20 8339 0767 e: randolphp@regents.ac.uk, paul@paulrandolph.net w: www.regents.ac.uk/RSPP, www.paulrandolph.net Paul is Course Leader of the Mediation Course at Regent’s University London – a unique course which approaches mediation training from a psychological perspective. The course focuses upon the psychological behaviour of parties in conflict, providing mediators with vital tools for resolving disputes in all sectors, whether in the legal, commercial, employment and workplace, family or social conflict areas.

REGENT’S UNIVERSITY LONDON 5 DAY MEDIATION SKILLS COURSE t: +44 (0)20 7487 7505 e: ProfCoursesRSPP@regents.ac.uk w: www.regents.ac.uk/mediate a: Regent’s University London, Inner Circle, Regent’s Park, London, NW1 4NS Contact: Enquiries Team Study the skills for conflict resolution and become an accredited mediator with our five-day course. At Regent’s our unique psychotherapeutic method of mediation training will equip you with a framework for conflict management and resolution crucial for dealing with commercial, employment, workplace, legal, industrial and personal disputes. We focus on providing a high standard of teaching from experienced tutors delivered in a quality environment.

STILLHR t: +44 (0)7932 762 448 e: robert@stillhr.com w: www.stillhr.com Contact: Robert Still The ‘first’ accredited workplace mediation training to be established in the UK, designed by PMR Ltd and receiving high acclaim since 1996. OCN Accredited 6-day programme; delivered in-house by qualified and practicing workplace mediator, Robert Still FCIPD.

Mediation Conflict Resolution Creating Happier Workplaces Employee Relations Mediation Facilitation Conflict Resolution Training Mental Health & Well-Being Respect, & Inclusion ‘WorkingDiversity with individuals and

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www.stillhr.com Call Robert Still: 07932 762448 UK coverage with centres in London and Yorkshire

50 50UK Mediation Journal, Issue 6

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Resolving differences at work Under the expert guidance of some of the UK’s leading mediator trainers, all experienced in commercial and specifically employment and workplace mediation, participants will learn how to: n Settle disputes and conflicts effectively - in days rather than weeks or months, saving vital management time n Add value to organisations by effective and timely management of conflicts and disputes - by finding sustainable solutions to potentially intractable problems n Manage the mediation process and facilitate constructive negotiation n Advise others on the features and uses of other effective dispute resolution techniques

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This highly participative programme is a core management competency and forms the toolkit for: n HR Professionals n Employment Lawyers or In-house counsel n General Managers and Executives n Trade Union officials

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