The Battle of the Authorities

The judges have made the position of the courts very clear that where public authorities were in dispute, they should go the extra mile to resolve their differences by dispute resolution methods, rather than rushing to court. As a former Lord Chief Justice in Cowl v Plymouth said, "Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible".

So where two UK local authorities were in conflict, both agreed that an independent facilitator should be appointed to help them sort out their problems.

My journey as the jointly appointed facilitator took me to the Midlands, and one day was set aside for the facilitation. One local authority played host, providing rooms and facilities for the parties and their legal teams. The respective Chief Executives (CEO's) attended as spokespersons for their authority, supported by managers and technical officers - either within the building or at the end of a phone.

The issues that gave rise to conflict were complex. Re-organisation of boundaries and changes in statutory responsibilities had placed important and valuable land at the heart of the dispute. In short, both councils believed that they owned and controlled the land, and that future profits on its sale were theirs to spend.

It is important to observe, had the matter proceeded to court, that a substantial portion of the land value would have gone in costs. Neither authority had a clearly winning case, and both faced the risks of failure and consequent public criticism. It was clear that the elected leaders of the councils had no stomach for a legal battle.

The facilitation required technical knowledge of issues relating to real estate, of local authority responsibilities and restorative practices. The dispute had brought both council's managers into conflict and relationships were strained. They needed resolution of the dispute, and also repair of their working practices and arrangements, particularly in relation to methods and styles of communication.

Certain areas of communality quickly emerged. It proved important for these to be identified and recorded as part of the groundwork leading to the meeting. This aspect of the appointment proved yet again the importance of spending time with the parties separately before convening a joint meeting.

Profit from the sale of the land was central, and was easy to estimate with the assistance of the estates departments. This provided a notional 'joint pot', but one which - due to local authority accountancy provisions- could not simply be shared at will. Local authorities must account for full value on sale of land, and pragmatic agreements to share profit are not available to them.

We examined what was possible. Land can be both an asset and a responsibility. The land in question was clearly a financial asset, but other land on the authorities' borders existed that constituted a liability to the owners and a potentially valuable asset to the neighbouring authority, for it connected areas of recreational use which were currently not well served by access. Additionally, there existed further parcels of special use land that were coveted by the adjacent authority.

The consequence was a deal brokered to meet both parties' special interests...typical of the 'win-win' outcome that mediators love. We were able to move easily to capture a series of land exchanges, agreed by the CEO's, and relished for electoral reasons by both leaders of council.

There remained the issue of the local authorities working together in the future. Our facilitation process - involving discussion, ideas-storming, testing possible outcomes and dispute management - had provided a good learning template for the CEO's. Managers saw the importance of separating issues from personalities, and engaging on them in a neutral context. Here, we captured a memorandum of working practice, which each manager wished to cascade down to others in their respective authorities.

The facilitation was completed in the day at a tiny fraction of the cost of litigating. Arrangements for land transfers were handled in house over the next 28 days, and the deal was completed within 36 days. Check-back revealed that both authorities continue to work seamlessly. It is not known yet whether the elected members will be returned to power, but their decisions appear to have popular public support.

Circling the Square

Most facilitators who have spent time with mediation or restorative justice will be familiar with the power of circles.

I have to admit that, as a UK commercial mediator dealing with corporate conflicts and strife, circles have not been a prominent element in my work. Corporate lawyers want to believe that they remain totally in control of the mediation process. Our Anglo Saxon approach to 'sorting out the issues' leaves little room to acknowledge that the process may have an independent power of its own.

It was at this point that Evelyn Zellerer made her entry into 'my life as a facilitator', and in doing so, swept me unequivocally into her fascinating circle of energy.

Friday 13 June was the lucky date; the place Queen's University, Belfast. I joined over forty members and students of the European Forum for Restorative Justice who had selected Evelyn's 'Peacemaking Circles' workshop, making it one of the most popular events of the 8th International Conference.

It became apparent that many of us needed to 'unlearn' a number of learned behaviours before accessing circles.  Entry to the workshop was via a few moment's meditation and creative visualisation. Thus, hard-bitten practitioners and capricious researchers alike were transported into a new receptive mind-set. For those who needed extra intellectual support, Evelyn provided Judge Barry Stuart and R v Moses.

Evelyn's circles offer a structured but flexible method for dialogue in the restorative justice process. Accessing with an opening ceremony and working with shared values, Evelyn brings participants into ever closer collaboration. Then with a subliminal focus on the mind, emotion and presence, Evelyn draws participants into getting acquainted, building relationships and trust, and in a non-linear identification of issues and agreeing action plans.

Central to circles is 'the talking piece'. For Evelyn's workshop she provided a shell, but here cultural differences can be acknowledged by the choice of item which will be held by the speaker until they have spoken.

For detail about Evelyn's process, the reader will need to attend one of her workshops. But let me share the effect. With the numbers present, ours started as a big circle containing disparate detached delegates. As the process developed, the circle appeared to shrink and develop an intimacy and focus of its own. Members became acutely aware of each other's presence and value. At the same time, the light in the centre of the circle seemed to intensify. This was immersion physically, intellectually, emotionally and spiritually, but without a sense of compulsion or resistance.

Evelyn's promise that the solutions would find us through dialogue was astonishingly correct. As we returned, at the end of the session, through our closing ceremony, we experienced a helium balloon sensation - rising above that which had kept us previously from circles and consensus.

So transformative was this moment, that it was to be mirrored within a day. On 14 June, in the heart of the Corrymeela Community at Ballycastle, restorative justice practitioners and academics formed their own circle as a tribute to Evelyn's work, and forged new rounded bonds of understanding and trust.

Where there is a Will there is a way?

Wills can provide the best way to ensure that the needs of those left behind are met. But on occasions, even the best drawn Will can result in crisis for the family.

With an ageing population, problems are now arising in relation to Wills made years earlier, where the testator's circumstances (the person making the Will) have changed, but the Will has not.

Those who are to benefit under the Will may have died before the testator, for example a son or daughter leaving no grandchildren. Occasionally, the deceased's second wife or elderly partner may be unable to cope in a home in which they have only been left a life interest. In other cases the list of people to benefit under the Will may not be fair, given the passage of time. Of course, the simple answer would be to make a new Will, updating the arrangements. But increasingly, the elderly are facing age-related dementia with the inevitable problems that arise concerning their capacity to change their Will towards the end of their life.

Here, the rules of Intestacy (rules taking the place of a failed Will) can produce bizarre and unwanted outcomes. Some estates fall to be distributed widely amongst people who had no real relationship with the deceased, whilst those who have provided constant and attentive care go unrewarded.

There is a role for the Court of Protection to make a 'statutory Will' should there be a real need to change a Will and an elderly person not have the mental capacity to determine their own outcome. But this too can be fraught, because time-scales are frequently unfavourable and the court may not be able to act with expedition. Other courts can intervene after the death, but this can strip the value of the estate due to the sheer cost of litigation.

In recent years I have been contacted to facilitate settlements in this type of case. Families were looking at the outcome under the Will, saying to themselves, "this is not what she would have wanted had she known. What can we do to change it?"

There is a popular misconception that a person's Will is the final and determinative factor. This is not the case. Families can agree other arrangements, and where agreed, these can then take the place of the terms of the Will.

In one such case the family wrote to each other and suggested a facilitated meeting. We met to identify exactly what arrangements each would prefer. The meeting lasted the whole day. Everyone had their say, putting forward their favoured proposal and their reasons for it. In a structured session, family members listened to the arguments and noticeably changed their positions. The agreement they ended up with was very different from what their relative had provided, but brought the situation up-to-date in a way with which he would have approved. They said afterwards that it was just as if he had been with them, guiding them to a fair solution.

In those sad situations where a person dies without close relatives, the rules of Intestacy can result in a wide distribution to people who did not know the deceased. In such circumstances it is open to distant relatives to agree compromise arrangements that require the executors to make provision for close carers (for example step-children) who otherwise would not fall within the rules. Such meetings are best conducted face-to-face, but can be arranged at a distance by e-mediation. In one such case, distant relatives in Australia entered the process, initially be email and private messaging, and later by Skype. Here, a full agreement was reached and the executors were authorised by the beneficiaries to create a new term interest in a home to ensure that the deceased partner's children were accommodated until they finished their university studies.

The watchword of facilitation is that anything is possible if those involved can be brought to an agreement. Judges have indicated that, where agreements are reached, the courts will uphold them. So, even at difficult times following bereavement, it is still possible to make a difference and reach a fairer facilitated outcome.