What is the price for peace?

It’s a question that a good mediator will explore before and during mediation. And it’s a question that legal advisors should consider, too. What is your client’s price of peace – and what is the opposing side’s price of peace?

The ‘price’ may be purely monetary, and calculations will take into account the cost of alternatives – commonly litigation and arbitration – and the risks involved, plus factors such as time and resources required to pursue legal action and potential reputational damage. But the ‘price’ may not be financial at all. Less tangible but possibly more valuable, the price might be an apology, an amendment to an existing contract or an agreement to change working practices going forward. In one multi-party competition law mediation I was involved with, the parties agreed to release a joint press statement as to how practices would be changed going forward, in return for the CMA agreeing to desist from taking regulatory enforcement action.

In another example concerning an Inheritance Act Claim the beneficiaries apologised to the claimant on a without prejudice basis for alleging the claimant was merely a tenant of the deceased and had no personal relationship with the deceased (the couple, though not married, had lived together as husband and wife). As a mediator I explored with the beneficiary siblings the fact that these allegations were made purely to advance the defence to an Inheritance Act claim but that they had caused enormous distress to the claimant, who was said to be deeply in love with the deceased and had cared for her during a long illness. The giving of the apology at an early stage of the mediation allowed settlement discussions to progress when previously they hadn’t been possible.

Fighting for legal costs

Sadly, a vindictive party may want to extract the ‘price’ of seeing the other side suffer in order to carry out the settlement terms (although of course a solicitor may not act for a client driven by malice). This may occur, for example, where one party insists on recovering their legal costs on as full a basis as possible in addition to the principal sum.

As a mediator, it’s important to sense when legal costs are an issue and to realise there may even be a split view within one room as between solicitor and their client. In this case possible approaches are to have a global sum offered, and to leave it to the client and solicitor to agree together how to apportion the payment, or for the parties to agree the substantive sum with costs to be assessed (less desirable as a complete outcome isn’t achieved at the mediation). It may be necessary for the mediator to explore in each room why there’s a significant difference between the costs of each party so a greater understanding of what a fair outcome might be can be achieved.

Lawyers and the price of peace

Of course 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. While in most commercial matters there are legal remedies, business people are at liberty to ignore them, choosing perhaps to put the matter to bed and get on with exploring new opportunities using the time and money they’ve saved.

Lawyers shouldn’t be surprised when a client doesn’t follow their legal advice on the day of mediation. Frustrating as it may be, that advice is just one of many factors being considered by the client when deciding whether and at what point to settle. Being a sounding board can be an important role for an adviser during mediation and it may be helpful to talk about options with the client when the mediator isn’t in the room. Allow the client to work through their options with you and be ready to support them in the decision-making process.

Likewise, parties should listen to their advisers but have confidence in their ability to make their own decision. Only they can truly appreciate the dispute in the context of their commercial and personal goals so give clients freedom to be bold and brave. And never forget the importance of that simple question – ‘What is your price for peace?’


Book Review: Edited by Prof Silvana Dalla Bonta

Le parti in mediazione: strumenti e tecniche. Dall’esperienza pratica alla costruzione di un metodo.

I have had the pleasure of collaborating with the Faculty at the University of Law in Trento and in particular the innovative Conflict Managers of Tomorrow Project, pioneered by Prof. Silvana Dalla Bonta. As part of this collaboration I have had the pleasure to read this publication[1]. It is written in both Italian and English as it is the result of the project’s long experience in training and coaching students in both languages.

It is a very thorough, detailed and clear analysis of conflict resolution, particularly aimed at students attending mediation competitions. It should be essential reading for any team thinking or preparing to compete. It actually should have a broader audience and has much to inform anyone involved in conflict analysis and dispute resolution, whether lawyers, mediators or parties in dispute.

The publication adopts a practical approach, with contributions from both academics and practitioners. Great store is placed on preparation, both on the part of the lawyers and the parties. This is the case for any real- life mediation. As an author of a role play case study for the ICC[2] used in a semi-final at the competition I found the incisive advice as to how a student should read, analyse, dissect and work through a role play invaluable for anyone preparing for a mediation competition, or indeed planning to engage in mediation. Advice on how to engage with the mediator is illuminating – many mediation advocates would be well served to read this. The advice is given in the context of the ICC competition where parties are encouraged to remain in a plenary session and opportunities for caucuses are limited by the rules. This makes it more pertinent to those reading from jurisdictions where joint sessions are the norm (such as Germany) rather than say the UK and US where for commercial mediations private caucuses are very prevalent.

In addition to the varied topics covered there are comprehensive bibliographies at the end of each chapter which provide excellent springboards for those wanting to research further. The authors have consulted many of the great works on the subject across the globe in a variety of languages and incorporated concepts from different jurisdictions. This makes the work truly international.

Aspects of cross -cultural communication and psychology are also considered and dealt with sensitively and from a global rather than Italian perspective. A useful addition if the publication were to go to a second edition would be a full chapter dedicated to the psychology of conflict, as this forms an important part in negotiation and mediation. A further future addition would be a chapter on online mediation, given that the 16th competition held in 2021 was entirely online. But, of course, it takes time for publications to keep up to date with changes to practice due to world events such as a pandemic.

The inclusion of a real- life experience from a participant at the ICC Mediation competition is invaluable and encouraging. In common with most skills training, the importance of practice and having a “can do” attitude is emphasised. As a judge myself at the competition, I was heartened to read how valuable the feedback from the judges to the teams was and how much the participant felt they improved during the competition as a result of this and the “hands on” practice they gained.

As the old Chinese proverb says, ‘Tell me and I’ll forget; show me and I may remember; involve me and I’ll understand.’  The practical approach to teaching conflict resolution at the University of Trento is exemplified by its enthusiasm for its students to participate in mediation competitions. Further the creation of this excellent publication that serves as a textbook to assist those students in this experience is laudable. Prof Silvana Dalla Bonta and her colleagues are doing excellent work in developing Conflict Managers of Tomorrow, people we are likely to need increasingly, and who cannot be replaced by AI and the many other technological developments we are seeing in the world. 

Congratulations to the team from the Faculty of Law, University of Trento, Italy, for winning the Special Award for Best Creative Solution Generation at the 16th ICC Mediation Competition in February 2021.

Rebecca Attree M.A. (Cantab) International Mediator and Solicitor, London 2021. Visiting Lecturer at faculty of Law, University of Trennto, Italy.


[1] Translated loosely as “The parties in mediation: instruments and techniques. From practical experience to the construction of a methodology.”

[2]ICC International Mediation training Role Plays 2015


News Alert: The Singapore Convention on Mediation came into force on 12 September 2020…

But what does that mean for those settling disputes in the UK and under English law? The UK has not signed the Convention so surely it has no effect?

It may do. This is because the Convention applies where two parties based in Europe mediate and the place

(i) where the settlement agreement is to be performed; or

(ii) where the subject matter of the settlement agreement is most closely connected

is in a State that has signed the Convention.

Therefore, the Singapore Convention, unlike for example the New York Convention on Enforcement of Arbitral Awards, is not based on reciprocity and can be availed by UK disputants in some circumstances even though the UK has not signed or ratified it.

Should the UK sign and ratify the Singapore Convention?

From many dispute resolution lawyers’ and mediators’ perspectives it would be a good idea if the UK were to do so. It would give enhanced rights of enforcement of a wide range of UK-related mediated settlement agreements. It would also enhance the perception of the UK as a major mediation and ADR jurisdiction.

Which countries have signed/ ratified it?

The UN Convention on International Settlement Agreements Resulting from Mediation (known as the Singapore Convention on Mediation) opened for signature on 7 August 2019 and was signed by a record breaking 46 States. As of 1 September, it has 53 signatories. The Convention came into effect six months after ratification by at least three contracting states (Singapore, Fiji, Qatar, Saudi Arabia Ecuador and Belarus have done so to date).

46 States signed the Singapore Mediation Convention, including importantly the US, China, India, Malaysia, the Philippines, Singapore and South Korea. Notably, the UK, the European Union and Australia have not yet signed the Convention. It seems that the reason why the EU has not yet signed is because a question of process as to whether individual countries or the European Union will sign remains to be resolved. In any event given Brexit the UK would now need to sign separately. There has been a short consultation by the UK government as to whether it should sign but no results issued yet…the government probably has more pressing problems on its hands…

What does the Convention provide?

The Convention’s aim is to formulate and implement an international framework for the enforcement of mediated settlements. It provides a process for the direct enforcement of cross-border settlement agreements between parties resulting from mediation. This allows the party seeking enforcement to apply directly to the courts of the State where the assets are located. The relevant authority may refuse to enforce the settlement agreement in limited circumstances.

When does it apply?

The Convention will only apply where the settlement agreement:

  • is in writing;
  • results from a mediation;
  • is an agreement between two or more parties who have their place of business in different States; or
  • the place of business of the parties to the agreement is different from either:
    i. the State in which a substantial part of the obligations of the settlement agreement is performed; or
    ii. the State with which the subject matter of the settlement agreement is most closely connected.

When does it not apply?

The Convention does not apply to settlement agreements:

  • relating to consumer transactions nor to family, inheritance or employment law;
  • that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the State of that court; or
  • that have been recorded and are enforceable as an arbitral award.

Any tips for a lawyer going with a client to a mediation to which the Convention may apply?

Consider whether the Singapore Convention may apply to any settlement agreement that may result. If so:

  • The mediator should sign the settlement agreement or a separate document to confirm that the settlement was reached through mediation;
  • If a settlement is reached shortly after the main mediation session, consider reciting in the agreement it was entered into following a mediation.

This is because under the Convention the enforcing court must be satisfied the settlement agreement arose from a mediation.

  • Take particular care to draft the settlement agreement so it will be easily understood by any overseas court. Make sure statutory references are made in full, for example. Spell out in detail the meaning of any legal concepts particular to English law or the common law. For example, the concept of a trust is not easily understood by a civil law jurisdiction. Also bear in mind rules on legal costs recovery vary enormously from one jurisdiction to another.
  • Consider whether any aspect of the settlement agreement may not be capable of being enforced in the relevant country due to conflict with local public policy or other overriding provision. For example, an agreement under English law that is not Shariah compliant (say where interest is payable) may not be able to be enforced in a Shariah based jurisdiction. The deal may be re-structured in such a way that a similar, Shariah compliant outcome is achieved.

Does the Convention serve any broader function?

Some say the success of the Convention will largely depend on the extent to which it is accepted and ratified by States. It does in any case serve to raise the profile of mediation as a credible method of alternative dispute resolution for cross-border disputes. Has the Convention increased confidence in international mediation? Probably, although only one year in, it is probably too early to say for sure, especially given the impact of Covid-19.

How may UK Mediation Agreements be enforced internationally at the moment?

Currently, many settlement agreements can be recognised and enforced across the EU under the EU Mediation Directive. This will end on 31 December 2020 from the UK perspective when the Brexit withdrawal period finishes, unless specific legislation is negotiated (that is looking increasingly unlikely).

The use of Med Arb can according to some jurisdictions (notably Singapore and New South Wales, Australia) create a settlement in the form of an arbitral award enforceable under the New York Convention on the Recognition and Enforceability of Arbitral Awards. Med Arb is a process whereby it is agreed from the outset either

  • if a mediation does not settle, the dispute is immediately determined by arbitration or
  • that the settlement reached at mediation will be handed down as an arbitral award.

This approach is not considered mainstream from a UK perspective and has a number of drawbacks that are beyond the scope of this article to consider.

At the time of writing, some 160 States have signed the New York Convention.

International Mediation – what is the way forward?

A positive consequence of the pandemic is the increase in online mediations, and peoples’ appetite to use them to settle disputes. These are particularly suited to international mediations given they can be set up quickly and easily at a relatively low cost. Parties and their advisers can attend from their offices/ home or even car. All they need is a computer/ tablet or a phone and an internet connection.

International Conventions such as the Singapore Convention are a welcome adjunct further to increase confidence in international mediations. Whether the UK government signs it or not, the take up for international mediation is exponential.

As an important aside perhaps mediation communication skills could be put to good use in the UK to agree how best to deal with Covid-19 and obtain “buy in” from the British public to them. They could also come in handy in the negotiation of the UK’s Brexit from Europe. But then perhaps this purist mediator who would like mediation skills to change the world should narrow her ambitions and be content with simply carrying on with the eminently satisfying day job of assisting parties to find a solution to disputes satisfactory to all.

 

Rebecca Attree 6 Oct 2020


What does it take to be a good Mediation Advocate?

Litigation solicitors and barristers, how can you be a good mediation advocate? Some might say that you’ve either got it or you haven’t – but I believe that mediation advocacy skills can be developed and honed.

Go beyond the legal position
Going into a mediation with a client is about seeing the negotiation from more than just the legal position. I liken it to putting on a pair of 3D glasses because you’re no longer looking at things two dimensionally. Of course, a solicitor or barrister is there to give advice on the legal rights and the strength of the legal position. But during a mediation their client will be mulling over a number of other factors, such as the company’s reputational issues and its appetite for risk, as well as personal considerations – how would they otherwise like to spend their time, or how soon they’d like to sell their business or retire for example.

Part of the mediation advocate’s role is to encourage their client to think about all these elements. Daniel Kahneman, author of Thinking Fast and Thinking Slow, says the best decisions are usually made quickly – and those decisions are frequently made intuitively when someone has all the pieces of the jigsaw puzzle in place. A mediation advocate needs to learn to step back and say ‘Look, I’ve given you the legal advice, now it’s for you to make up your mind.’

Start as you mean to go on
The joint open session is the perfect opportunity to set the right tone for reaching a settlement. Here again, a mediation advocate should be mindful about not being too forthright on the legal issues and the strength of their client’s position in law. Instead of addressing these issues in detail, the advocate can use their five minutes to make a persuasive opening speech on how they wish to progress with the mediation and the areas to explore.

The simple statement made across a table or in a Zoom video call: ‘We know this has been a long-running dispute, but my client is here today with a view to settle and in good faith hopes that can be achieved’ is a powerful one.

Keep the negotiations on track
It’s very easy for people to lose track of time during mediation. As a mediation advocate, you can take note of when an offer has been made, how long it has taken for the other side to come back to you and what the response was. It’s not about speeding things up but keeping an overview of the negotiation process.

Tracking things in this way may show how a pattern of concessions is developing or might give insight on how to manage your client’s expectations in relation to a deal. Equally, it may highlight a need to change tack when one way just doesn’t seem to be working. Sometimes a party can get very focused on one particular direction and an advocate can use lateral thinking to ‘expand the pie’ working alongside the mediator and help the party see that there are other options.

Crunch the numbers
When it comes to risk assessment and fallback positions, a mediation advocate armed with a calculator is a wonderful thing.

It is helpful to talk through with the client in front of the mediator their fall-back positions if the case doesn’t settle. So, a reasonable assessment of probability of success in court on the claim and the counterclaim as well as the costs risks. As a mediation advocate, a useful tip is following that discussion to have the three key figures – the bottom line of the best, worst and most likely outcomes – written on a Post-It note in front of your client so they can quickly compare numbers as offers come in.

One barrister I know, also a trained accountant, brought a an Excel spreadsheet along to a mediation for a shareholders’ dispute that involved the valuation of shares. Every time the offer changed, the barrister was able to run the figures through the spreadsheet to get an adjusted share value and could say to the client ‘Right, this is what your risk profile now looks like.’

Be ready for the finishing line
A day of mediation can be tiring so you’ll need something in reserve for drafting the all-important settlement agreement. You can avoid ‘blank paper drafting’ by bringing along templates, such as a Tomlin Order and draft Schedule, that are already topped and tailed with the case details. And if there are certain things you think might happen – that it’s going to be necessary to have an escrow account, for example – you could pre-prepare the relevant wording or clauses.

That’s not to say you should put in work that may not be needed (and in the process front-load the costs for your client). It’s more a case of thinking about the settlement draft as the day progresses and using any available ‘down time’ when the mediator is in the other room to start putting the necessary wording together.

Have a joke to hand
I’m not being flippant. Both you and your client will welcome occasional breaks from the intensity of the day. I sometimes say to people when I come back into their room ‘I do hope your lawyer has been entertaining you’ or ‘I do hope you’ve discovered something funny about each other.’ A stash of chocolate biscuits is good for keeping up energy levels. And one lawyer I know always suggests to their client taking a short walk together in the middle of the mediation – good for stretching the legs as well as sparking fresh thinking. Just so long as they let me know and come back on time, I’m all for it!


Managing Organisational Recovery during Covid-19 Pandemic

Following the successful Webinar we have produce a handout


The F*** words and Unravelling Contractual Obligations in Covid-19 Times

The current extraordinary situation caused by the Covid-19 pandemic


Online Mediation – The New Frontier for Dispute Resolution.

FAQs

  • How does online mediation differ from face to face?

It’s quicker to set up, cheaper (no venue or travel costs) and takes less time (no travel).

  • Do solicitors, barristers and parties all need to be together?

Absolutely not. Advisers and their client(s) can all be assigned to one “breakout room” where they can talk freely in confidence. Only the mediator can visit them there.

  •  Do you still have a joint session?

Yes, if everyone is willing. In this case the parties are invited to join a main meeting room with the Mediator.

  • Is preparation the same as for a face to face session?

Yes. In addition, the parties and advisers will be sent a Zoom invitation for the day. It is also good to have the usual pre mediation chat on Zoom with the advisers, parties and the Mediator to check everything is set up using the technology.

  • “Technology set up?” What’s involved?

Ideally you will use a computer or laptop, but a phone will do. Ideally you will have earphones with a microphone but usually the microphone on the computer/ laptop/ phone will work fine.

  • Should we still prepare Position Statements?

Yes, in all mediations the more each party knows beforehand about where the other party is coming from, the better. It’s also a useful summary for the Mediator.

  • Is online mediation unsuitable for any cases?

Some say it’s unsuitable for highly emotional cases but in our experience the reverse can be true. There can be a deep sense of connection and confidentiality by video.

  • Does it all have to be done in one day? What about when parties are in different time zones?

You can have several sessions of say 2 hours each over several days. No problem internationally, you just choose the slots when working hours overlap.

  • How is the settlement agreement drafted and signed?

This can be either by e-mail or using for example the communal drafting facility on Zoom where the mouse can be passed to each solicitor in turn to make amendments. Signature can be electronic by e-mail or using a secure platform such as DocuSign.

  1. So why wasn’t online mediation such a thing before Covid-19?

Good question. Many mediators have been asking themselves this. Perhaps because it is well known by mediators that chocolate encourages people to settle and this is one of the few things you actually need to meet face to face to share!

 


Business as (nearly) usual – experience online mediation

I hope you and your loved ones are keeping well in the current situation.

I have seen an upsurge in online mediations – using both Zoom and the telephone. If you’d like a short experience of how Online Dispute Mediation works take a look at this 8 min video made back in 2013 when I was the Non Executive Director “guinea pig” for the ADRg Accredited International Online Dispute Resolution Mediator course. Prescient times.

Those skills have now become an important part of my everyday working life, whether mediating contentious probate, property disputes, commercial contracts disputes, family business disputes, professional negligence, or simply recovery of fees. I’m offering a 20% discount on my fees in April to encourage people to put their conflicts to bed during these exceptional times.

With thanks to Jacky Chapman, photographer, for the photo.


Coronavirus restricts travel and face to face meetings – a surge in Online and Telephone Mediations?

The Coronavirus has severely impacted international travel and world trade. Many people have cancelled trips overseas, especially to the Far East and companies are enforcing policies restricting travel.

In these challenging times when face to face meetings cannot take place the use of video conferencing and the good old-fashioned telephone become ever more important to keep channels of communication open.

I have generally seen an uptake in the use of ODR (online dispute resolution) and telephone mediation in recent times and I expect it to increase further for international disputes.

Either using a secure platform such as Zoom, or the telephone is a cost-effective and time-efficient method of resolving a dispute outside of court or arbitration. It avoids the need to travel from the desk. But does it work?

Absolutely the answer is “yes”, provided the parties are comfortable with it (and usually they are from the outset or they quickly become so as the session develops).

So how does it work? Well, the answer is, similar to a face to face mediation. Private conversations with the mediator take place, and joint discussions can be facilitated if wished and desirable. The usual rules of confidentiality apply. Advisors can be at the same location as their clients (preferable) or join from a different place. They can also be available only if needed (a cost-efficient approach, usually meaning they step in towards the end to draft and agree the settlement agreement).

The aim of the mediation is to agree and sign a Settlement Agreement by the end of the session. This can be done electronically. Sometimes a template is prepared and circulated beforehand to make the best use of time in the session.

My sympathies are with those affected directly or indirectly by the Coronavirus. Our roles in business are to ensure we do all we can to cooperate with efforts to contain spreading the virus. Resolving conflict by telephone or Zoom with the assistance of a mediator is one way to do so, and perhaps by doing so to further “peace through world trade” (the motto of my livery company The Worshipful Company of World Traders) along the way. Something that is to be aimed for even more today than ever before.

Rebecca Attree

Civil and Commercial and Workplace Mediator, Attree & Co


A Right Royal Mediation?

Prince Harry met with the Queen and Senior Royals yesterday to discuss the future plans of Prince Harry and Meghan. Is this an opportunity for a Right Royal Mediation?

Everyone is waiting with bated breath to see how the talks will unfold.

I wish them well and hope a satisfactory outcome can be found for all as soon as possible.

However, as a mediator specialising in facilitation of family business disputes (and this is beginning to look a lot like one), I wonder whether using an independent neutral trained in facilitating resolutions of conflicts of this type might help.

What would a mediator add/ do in these circumstances? Here are a few things:

1. They would allow each party to “vent” or say how they feel in private to the mediator. A powerful process of getting things off your chest (even to someone not involved) means people can feel more ready to move on. There may be cultural or other sensitive issues to be aired.
2. The mediator can help to put what is said into words that will be more easily listened to and understood by the other party. They can ‘take the heat’ out of the message. It may even be apologies are given or exchanged. So much easier to do in a calm environment and possibly through a third party.
3. The mediator will help each party to formulate what they really want, and what are the benefits and risks of their suggested outcome(s).
4. The mediator will help each party to understand better where the other is coming from and “get into their shoes”. Once this happens, the possibility of a deal becomes more probable.
5. Once a way forward in principle is on the table, the mediator can help each party to “reality test” it, and to see whether they could actually live by it.
6. The mediator could challenge people’s unrealistic beliefs by asking probing questions.
7. The parties could have various different meetings either altogether, with communication assisted by the mediator, or separately where everything said is confidential and will only be disclosed to the others if agreed. This can make people feel more comfortable and in control of the dialogue.
8. If someone is attending by telephone, this is a perfectly good way of negotiating. Indeed, I do many telephone/ Skype mediations. However, the interposing of a mediator makes all of the above all the more successful as the direct line is to the mediator rather than on loudspeaker unless otherwise agreed.
9. Then there’s the money. Rarely is the money sorted out completely until the emotions have been addressed. But when it is time to look at a financial settlement, nothing beats having an independent person looking at the figures in each room and assisting to broker a deal by managing expectations and helping parties look to a range of options.
10. Finally, there’s the fact that all mediations, and what are said at them, is confidential, unless otherwise agreed. There is nothing worse than “airing dirty washing in public”. One reason why we hear so little of mediation and its benefits – usually it’s all behind closed doors.

Rebecca Attree, Attree & Co, International Commercial Mediator.