Webinar: Mediation for the Modern Workplace – a time for change

Date: 14/11/2018
Start: 11.00
End: 11.45
Cost: No charge
Location: Online

I am pleased to invite you, in conjunction with Boyes Turner’s Employment Law team to join us for a webinar on mediation for the modern workplace and the benefits for your organisation in approaching conflict management differently.

Current grievance and disciplinary management tools may achieve compliance but they are of limited value in achieving the right, balanced and lasting outcomes to unhealthy conflict when it arises. These established procedures are not fit for purpose for the modern workplace, failing to address the real issues at the heart of employee relations conflicts. It is time for change.

In this session Michael Farrier, Partner at Boyes Turner and I will look at an alternative approach to conflict measurement and management which can be of immediate benefit to organisations. Adopting and embedding the principles of mediation into your culture and conflict management processes can provide immediate benefits to your people and culture, as well as achieve considerable costs savings in parallel.

Both Michael and I are CMC Accredited Mediators and Workplace Mediators.

We hope you can join us.

If you have any questions about this event please contact me.

Register here


Mediation in the Modern Workplace Seminar

Mediation in the Modern Workplace Seminar was organised by Hexagon Mediation on Tuesday, 9th October from 6.00pm.- 8.00pm at the Boardroom of Laytons, London Bridge, London. (The photo is of the view from the boardroom that evening).

Part of Mediation Awareness Week, Hexagon’s seminar  was hosted by a panel that comprised fellow founding members of Hexagon Mediation Michael Farrier, Stephen Walker and myself.

Our intention was to raise further awareness of the increasing appeal of mediation in the modern workplace as an alternative, or additional method of resolving employee relations-based conflicts. The session sought to challenge delegates to try a different approach to conflict management when next faced with a grievance or disciplinary issue that may be appropriate for mediation.

We gave insights as workplace mediators into our own experiences of businesses that have embraced the principles and practices of workplace mediation. We compared workplace mediation to other forms of mediation and explained how many aspects of each of the processes overlap. Workplace mediation blends private caucuses and joint meetings and can be with or without lawyers present.

The seminar was warmly welcomed by the audience which included other practising workplace mediators, HR professionals, HR leaders, in-house counsel and lawyers, and civil and commercial mediators who have all had experiences of internal conflict management. Finance managers interested in reducing conflict costs also found this topic of interest.

There followed a lively debate about how workplace mediation can and should be integrated into the culture of businesses, schools and charities.

Thank you to all those who attended and your kind feedback.


What does a Mediator really do and see Capuchin Monkeys reject unequal pay

What does a mediator really do?

I have been asked this question a number of times this month by people ranging from a highly experienced QC to a litigation solicitor and a party in dispute.

I can understand why this may be a mystery to many. After all, even if they have been to numerous mediations, they will have probably seen the mediator for at most half of the time. A great deal of what happened the rest of the time is confidential and cannot be disclosed to them.

So let me unravel some of the mystery…

A good mediator will help a party:

  • to ascertain what they really want, and what is important to them;
  • to understand the strengths and weaknesses of their case, not just from a legal perspective, but also from an evidential and a commercial point of view;
  • from there, to do a cost: risk benefit analysis for the best, worst and most likely outcome at court. In other words, how much would they net receive or lose depending on the court decision. The cost: risk benefit analysis is expanded to consider other factors such as management time and resource, stress, loss of ability to take up other opportunities/ loss of sleep (yes, really);
  • to overcome blockages to decision making by addressing psychological biases (watch this space for a future blog). As a taster, see this short video ‘Capuchin monkeys reject unequal pay’ https://www.youtube.com/watch?v=L2ui97YPPsg
  • to structure a deal that works for all, taking into account all of the above, and the future plans of each party.

A good mediator will also enhance communication between the parties by:

  • ‘taking the ‘heat’ out of what is said by one party by rephrasing it in more neutral terms to the other;
  • Ensuring the timing is right for when key messages are conveyed; and
  • if authorised, tell each party the other feels the same way (a powerful message, often unsaid in earlier direct communication between parties).

These are just some of the many techniques a mediator has in their toolkit. No two mediations are ever the same, and a good mediator will select the right tools for the job on the day.

Rebecca Attree, Mediator and Solicitor, Attree & Co

 


One of my favourite Christmas gifts – New Year 2018 video

To see one of my favourite Christmas gifts  – a video made by a grateful client promoting my mediation practice – click here. Thank you to all my case referrers and parties who appointed me last year. I look forward to working with you and those you might recommend me to this year.


Anglo German approaches to Mediation – why so different?

The 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 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.

 

Rebecca Attree M.A. (Cantab), International Civil and Commercial MediatorScreen Shot 2018-01-16 at 19.20.06 Screen Shot 2018-01-16 at 19.20.06


Successfully Mediating Family Business Disputes Webinar

Family business disputes are a sensitive area, and mediation can resolve disputes without the difficulties associated with going to court or arbitration.

We had a large turnout for my recent webinar which discussed: the reasons for using mediation to resolve family business disputes, how to prepare for such a mediation and how to measure success.

The webinar has received some incredible feedback, including thanks from the Legal Counsel of a global FTSE 500 company. The content has also been described as ‘helpful and interesting’ by an experienced Barrister, who is also a Civil and Commercial Mediator.

You can listen to the webinar here. To discuss how I might help you or your client resolve a dispute, you are welcome to contact me for a confidential discussion.


Top Tips on Mediation – What is the Price of Peace?

Everyone has a price at which they are willing to settle a dispute.

One of the key things for an adviser to consider with their client before and at a mediation is “What is my price for peace, and what is the other party’s price for peace?” Certainly this is what a good mediator will be exploring as the mediation progresses.

That “price” may be purely monetary, and can be calculated by looking at the cost of alternatives (that are usually litigation or arbitration), and the risks involved. It is necessary to factor in other costs to that alternative such as time and resource in pursuing legal action, risk of reputational loss due to publicity, not to mention the stress and sleepless nights for the individuals involved.

The “price” may however include less tangible but possibly more valuable issues such as an apology, an agreement to change working practices going forward, a joint public statement, or an amendment to an existing contract.

Sadly, “price” may also include for a vindictive party seeing the other party suffer in order to carry out the settlement terms (although of course a solicitor may not act for a client driven by malice).

It follows that one party’s price for peace may be quite different to what their legal advisers say their entitlement should be. And so it should be. Because in most commercial matters while the law prescribes remedies, business people are free to choose whether to avail themselves of them. They may prefer to put the matter to bed and have more time and money to explore new opportunities.

So advisers, please continue to advise. But do not be surprised if your client does not follow your advice on the day of mediation. Parties, listen to your advisers, but have confidence in your ability to make your own decision, as it is only you who know how the jigsaw puzzle of the dispute in the context of your commercial and personal goals fit. Be bold, be brave, be bright.

As a mediator, I always “expect the unexpected” and in my experience outcomes at mediation can be surprising.

Even the most seemingly intractable and insoluble disputes can find a balancing point, albeit often not where anyone at 9.00am on the mediation day thought it might be.

If you’re currently considering the best way swiftly and effectively to resolve a dispute, please contact me to discuss.

To view the latest short video on Rebecca Attree’s Top Tips on Mediation – Exploring your or your client’s Price for Peace presented by Mark Bedford of ADRg click here


What are my top 10 takeaways from the CLAN Professional Negligence Seminar 2017?

My top 10 takeaways from the CLAN Professional Negligence Conference courtesy of Deloittes and Annecto Legal:

1. Causation and damages are bigger hurdles than liability. This takes you to where does a deal lie at mediation.

2. Establishing the counterfactual position in an audit claim is technical. Better not go there and instead settle at mediation.

3. Claims against tax advisers are increasing. Reputation is key, mediation is confidential.

4. Costs play an increasing part in settlement for litigants. Advisers may have their own stake.

5. ATE insurance policies are usually confidential. At a mediation they are rarely disclosed. This may be waived by agreement. Something to consider before a mediation.

6. If a DBA is void, a client need not pay their solicitor. Rarely raised at mediation.

7. A solicitor must tell their client if they have previously advised them negligently. Mediators must question advisers carefully.

8. There is an Adjudication Pilot for Professional Negligence Claims. Consider Mediation as an alternative.

9. Some prof neg solicitors are (like me) pro private caucuses at a mediation just between parties if the circumstances lend themselves.

10. Tricky commercial topics are best discussed with everyone well fed and watered- thanks to the hosts.

CLAN logo


What does it take to close a deal?

Mediation is all about making a deal. Usually some time in the late morning or early afternoon offers and counter offers start to flow and the Mediator may find themselves caught in rooms where “last and final offer” and “nothing more to give” are phrases that are bandied about zealously. A good Mediator will exercise caution in disclosing such views to the other party until it would seem that is genuinely the case. To do so earlier risks creating an artificial impasse.

So what do you need for parties in conflict to reach an agreement?

According to Frank L. Acuff (How to Negotiate Anything with Anyone Anywhere in the World, one of my favourite texts on international negotiation), you need to:

  • Satisfy the logical needs of both parties;
  • Satisfy the emotional needs of both parties; and
  • Convince the other party you are at your bottom line.

If a deal is not forthcoming, at least one of these components will be missing. A good Mediator will identify what is lacking in each room and help it to be found. How will they do that?

Logical needs

Logical needs is usually the area advisers find easiest to deal with, being trained to think logically. A clear analysis of what a worst day, best day and most likely day in court is likely to yield and the probability of each is a good starting point. An adviser should remind their client that even if the probability of the worst outcome is only say 20%, that means if a one day trial were to be run over 5 days with different judges, one of those 5 hearings would result in the worst outcome. Could their client live with that? If the answer is “no”, it is probably not a risk worth taking. So negotiations should continue or the deal on offer be accepted if a better one cannot be obtained.

In this world of increasing “competimates” (where competitors are also trading partners) and decreasing choice of companies with whom to do business (as mergers abound) it may be logical to restore a relationship and continue trading as frankly there is scant choice of other alternatives.

Emotional Needs

This one is a “biggie”. While the deal on offer may make good business sense, emotionally one party may no longer trust the other or they may harbour so much resentment they feel unable to make a deal. Family business disputes are often the worst for this.

As a Mediator said to my client recently when I was their mediation advocate: “you are not going to make a deal unless somehow you get rid of your anger”. Easier said than done. On the mediation day this can be helped by an apology, frank discussion between the parties, an “agreement to disagree” on certain issues, “venting” in a private caucus with the Mediator and good summarising and reflecting back by the Mediator, or even something as simple as taking a walk.

Convince the other party you are at your bottom line.

People will always wonder how far they can push the other party and whether there is something more they can gain by continuing to negotiate. At a mediation the aim is to find a deal that is “satisfactory to all”. You will almost never get your best outcome at a mediation. That must be saved as a possible but unlikely lucky dip result of a court hearing, with all the high emotional and financial stakes that accompany it.

The Mediator will gain a better understanding of each party’s interests and needs if time is spent exploring these matters early on in the mediation. It may be the parties will authorise the Mediator to disclose such needs and interests to the other. Moving to bargaining too quickly prevents a sound understanding being developed of “what might work” for each party.

The best way to convince someone you are at your bottom line is to look at them straight in the eye and say so. This is why sometimes, when parties are reaching a deal that encompasses continuing to trade, I will suggest a joint meeting between the two key decision makers with myself so that exactly this can happen. Regretfully this means the advisers who may well have sweated blood in progressing their client’s litigation for many months are not present at the closing moment. But isn’t that a small price to pay for peace and a satisfied client?

At the end of the day if a deal is “good enough” for both parties at a mediation that is a successful outcome. Like so many things in life, striving for perfection or the maximum possible comes at a price of possibly not reaching the finishing line, and not being able to move on to the next challenge. As has been wisely said: “The past cannot be changed. The future is yet in your power”.

It will be interesting to see how the UK’s Brexit negotiations continue, as I understand partly masterminded by another negotiation “guru”, Bill Ury (of “Getting to Yes” and “Getting Past No” fame, my two favourite generic negotiation texts). Which of the three components will be hardest to satisfy for each member of the EU, and most particularly the UK?


Can “May” Arbitrate mean “Must” Arbitrate?

Can “may” arbitrate mean “must” arbitrate? Agreeing in a contract how you are going to resolve any dispute is a key part of risk management for any business. After all, when things have gone pear shaped, people will start to argue about everything, including the dispute resolution clause itself, if they can.

This is just what happened in a recent case decided by the Privy Council (Anzen and Others v Hermes One Ltd (2016) UKPC1). There, the relevant clause stated: ‘any party may submit the dispute to binding arbitration’. Notwithstanding this, one party began litigation. The other party applied for the litigation to be stayed on the grounds that the case should be arbitrated.

After a series of decisions and appeals, the case came before the Privy Council. It held that:

  1. The litigation was stayed. It was not the appropriate forum because of the clause.
  2. If the claimant wished to pursue its claim, it would have to begin arbitration proceedings.
  3. In order for the stay to be granted, the defendant did not have to begin arbitration proceedings itself. (Thankfully. After all, what potential defendant is likely to commence an arbitration except in rare circumstances?)

So effectively the Privy Council decided that “may” means “must” in this situation.

Turning to mediation, the form of alternative dispute resolution that I practice, what impact may this case have that was decided by one of the highest courts of the land?

I would venture to say significant impact, potentially. If a contract includes a clause stating that the parties ‘may mediate’, that has until now been seen as a voluntary submission to mediation that cannot be enforced.  By analogy, it is highly possible that following the Privy Council decision such a clause will now be interpreted to mean if one party raises the issue of mediation, the courts or arbitrators will be obliged to issue a stay of the proceedings pending mediation. This would indeed be in keeping with the courts’ current propensity to encourage the parties to engage in sorting out the dispute themselves (see my January blog about the costs of unreasonably refusing to mediate).

Following a series of recent cases, we had previously reached the position where an agreement to mediate would only be binding in certain circumstances. Those are that it refers to mediation through a Mediation Provider whose Rules ensure once a referral is made to them a mediation will be set up, irrespective of differences between the parties about timings, practicalities, choice of mediator etc. It may be following the Privy Council decision that reference to these Rules is no longer necessary to create a binding obligation to mediate.

This must be good news for parties. More parties are satisfied with the result at mediation than at court, even if they win. It is also good news for solicitors who can finally get those difficult cases off their desk. As one litigation solicitor said to me at the conclusion of a complex mediation last week: “Why is it the trickiest looking cases that settle at mediation?” I guess it must be good news for mediators as well…