E Mediation - Arm's Length Negotiation

Knowing that I have been involved in e-mediation for over ten years, mediators and clients ask me about the virtual mediation process, and I am always happy to share.

For e-mediaton, I am sure that there are as many different styles and approaches as there are mediators who practice it, but I have found a way which works for me, and in which clients have expressed confidence.

The first consideration in ‘mediating at distance’, is to develop a really robust process. So different from face-to-face meetings, where mediators and the parties have extended communication channels, e-mediation forfeits the non-verbal 'cues and tells' that make the mediation process immediate. What you are left with is largely words on a page. And with that comes a sizeable problem. Words do not always mean what you intend them to mean.

Without the softening inflection of speech, the written word can appear quite harsh. Those familiar with social media, such as Facebook and Twitter will immediately recognise the problem... "I never intended it to sound like that, or to be taken that way"...

Even in the most hard-nosed commercial e-facilitations, chief executives, their directors and legal teams can get uptight about something that was fairly innocently written, but has appeared more challenging when read.

So, before embarking on the process, parties need careful direction about what to commit to writing, how they will be expected to express themselves, and the implications of not following the rules.

I achieve this by using a tight staircase of ‘steps’, leading to set ‘platforms’. Clients need to understand that the process is fairly rigid, to ensure safe management. "You cannot leap to step three, before you have completed steps one and two". And every so often, we pause on the landing or mezzanine so that we can evaluate how we are getting on.

My 'Step 1' comprises an introduction letter sent to all parties simultaneously, to inform them about the process and method, which contains  'Do you....." questions  - recording their agreement to the process and ground rules. This is a shared document, and commences the annotated process, with which all parties can see that the agreement has been formed, and the process that is set.

Once shared, I summarise the options that they have elected and agreed, covering their expectations of the process, such as whether they wish to speak on line, how any confidential messages are to be handled, and what to do should impasse be reached. 

'Step 2' is generally directed to obtaining positions, which are set out by the parties or their lawyers in pithy written summaries. These are key documents and require great care. The last thing the parties need is for an issue to be raised later in the process that has escaped their summary.

'Step 3' is the first platform:

A. Your summaries show that the following points are agreed between you:

B. Your positions reveal the following matters are not agreed:

C. Your positions are not clear as to the following matters:

D. Some ideas/options for discussion

E. Points of guidance for approach

"May I propose a target date of .... for your replies to Step 3 and your revised proposals. If you have any issues with this step, please notify me immediately".

Following this, subsequent steps become more specific to the issues yet to be agreed.

It is essential to record what has been agreed and what remains to be agreed from the previous step, and to secure the parties' written confirmation. This provides a 'stop' behind which they are not permitted to return.

For the disputed issues I set out 'Reality Check' questions for each rival proposition from each party, and invite them to consider or advance proposals. Yes - accompanying each step, the parties are provided with 'sample options', making the process more directive than a face-to-face meeting. Some mediators may be uncomfortable with this, but my experience suggests that client satisfaction leaps when reasonable possibilities are proposed, even if they choose not to adopt any of them.

The parties are expected to use the 'Step document' to record their answers and comments (annotated with their own colour-coded replies). This avoids the risk of producing inadvertently, unshared documents.

By adhering to a process that steps them from one agreed position to the next, parties tend to make their own progress towards a final agreement. Needless to say, some parties still need a degree of 'hand-holding' - by Skype or private message - but generally they quickly learn the way in which progress can be made and, in the rare event of a failure to agree all issues, they do have the written framework to hand to their legal teams should they wish to broker final solutions, or litigate narrow issues.

Launch of the new 'Dispute Facilitation Centre'

If you follow Stephen Twist's Barrister Blog, you will be aware of my previous proposals for private dispute resolution and the single Dispute Facilitation Centre.

Such was the interest the ideas have engaged, that a group of us decided to join together to make it happen.

The journey from 'idea' to 'concept' proved to be simple; for it was timely in terms of the recent developments within the public courts, and for the professions where alternative business structures are being encouraged.

The original idea involved a privatised court system. We realised that in taking this route, it would be all-too-easy to import the disadvantages of public courts, and to miss opportunities for cost effective streamlining of service.

Public courts are the last port of call for those who have been unable to resolve their differences. In going to court, the parties surrender every molecule of control and risk a judge they do not know giving them an outcome they do not want.

Leading up to this point, each party will have taken separate advice from separate lawyers at separate cost. The lawyers may never have worked together, and may have a financial interest in extending the conflict rather than containing it. Add to that, the duplication of effort and cost, the megaphone diplomacy of litigation and the raft of procedural steps and form-filling needed to plead a case.

The new concept

The real focus of the 'Dispute Resolution Centre' is resolution rather than dispute, bringing together under one roof every service that may be required to achieve this.

It is predicated on the basis that all of the parties to a dispute have agreed to proceed within the centre.

Here the parties are allocated a single, independent, impartial and dedicated facilitator, who will work with each of them to resolve their issues.

Our first step is to provide a critical path illustration of the quickest and most cost-effective way to reach a solution. Superimposed on this are the options available through the Centre should any initial path be blocked. For example, any party will be able to access independent legal advice within the Centre from a bank of lawyers, specialist in the particular field.

Should facilitation not resolve all of the issues, the dispute will proceed before a Centre Arbitrator, chosen by the parties as having specialist skills to deal with the particular dispute. The arbitrator's decision and award will be binding on them (just like a court order) and will be enforced by a court should the need arise.

Because each element towards resolution is provided within the Centre, we will take responsibility for providing the specialists required for the particular dispute. For example, in a boundary dispute, the choice of facilitator will be from a bank who have land law skills. Independent technical and legal advice will be available from specialists with a track record in that field. If one is needed, the arbitrator will be a land law practitioner or qualified surveyor.

The whole process will be managed transparently to save professional costs. Our initial calculations suggest that disputes will be resolved within days (if simple) and within 3 months for the more complex issues. Parties no longer require in-house counsel, or need to source outside specialist advisers and experts. The single facilitator will share appropriate information, cutting out the need for formal disclosure and discovery. Pleadings become a thing of the past, replaced within the Centre by a simple summary setting out the issues to be resolved. Where needed, the arbitral process may be conducted on the basis of written submissions, or short informal video-recorded evidence sessions, followed by a decision and award.

Still in its infancy, the Dispute Resolution Centre currently only accepts selected cases for the purpose of pilot evaluation. Our aim is to provide a one-stop-centre for every kind of dispute - where organisations, companies, firms, contract managers, human resource managers, communities, private individuals, parents and spouses can nominate the Centre in the knowledge that their issues will be swiftly and economically managed from initial conflict through to resolution.

Contact us here for more information or to discuss how we might be able to help.