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.

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.

President's Appointment

Workplace disputes can be some of the most damaging. Conflict at work often contaminates a wider part of the workforce than those actually involved in the dispute. People take sides, factions develop, trust disintegrates, and productivity suffers.

For the employees themselves, conflict at work takes away their ability to function. They dread going to work, absenteeism increases, and frequently longer-term sickness results. At any level, this can be damaging for any organisation. At the highest level, it can be disastrous.

This blog concerns a dispute which has been anonymised, but arose from an appointment from the President of a UK registered company, where two company directors were in significant conflict.

The company Chairman and Chief Executive asked the President to intervene. The two directors concerned were key to the operation of the company, and neither could realistically be released because of their distinct skill sets. Conflict between them had become so visible that the future of the company was brought into question. Whilst not working directly together, the directors met frequently to co-ordinate policy and determine strategy for management.

The President, Chairman and Chief Executive sought an independent expert to work within the company. They considered it to be essential that dispute facilitation and management should happen inside the workplace, and that every aspect of the two directors' interaction should be examined. The task was deemed beyond the company's Human Resources team, and called for neutral and independent expertise. Confidentiality was critically important as competitors were unaware of the issues facing the company.

Our remit was to restore the working relationships, to evaluate the causes of breakdown, to identify and implement strategies to support revised working relationships, and to provide a template for future dispute management. It was agreed that a 40/20/40 split of intervention would be appropriate: 40% of intervention time being spent before a joint meeting between the directors, 20% for the meeting, and 40% of the intervention to support the outcome. Whilst a permanent outcome was sought, the President was realistic about the potential duration of any initial settlement agreement.

A key task for any outsider entering a company is to understand company culture. Here, nothing can be taken for granted - each company demonstrates its own quirks as well as unique procedures. For the facilitator, careful and quiet observation is essential, and formed the first part of the intervention.

We considered it right that all employees of the company should know of the appointment at the outset. Trust and integrity are paramount at all stages of intervention. Throughout the process, I worked with a colleague facilitator to ensure that instant communication was available for all involved, and that objectivity was preserved. We ensured that we spoke to every employee about their working arrangements and relationships. Individuals were not asked directly to comment on the evident issues that resulted in our appointment. This way, all voices were heard without accentuating opinions on the conflict.

The second stage involved individual work with the two directors concerned. This task was complicated by strong personalities and positions. Sub-texts were identified and examined. Issues of power, influence and cultural differences were visible. However, substantial areas of communality were identified and formed a sufficient basis for a joint meeting. Importantly, as facilitators, we addressed the agenda for the meeting, allowing a degree of prescription to enter so as to engage the parties.

Managing the meeting was relatively simple. Due to substantial background work and time with the parties and others, the issues were clear, could be quickly articulated, and we were able to move to the exploratory phase of problem solving. The meeting lasted 3 hours, with one break, and resulted in a written agreement, which was perfected overnight on instructions.

The agreement had highly prescriptive aspects to it, which were clearly unsustainable in the long term. We considered it essential that both parties should agree on, or at least understand, the next phase - allowing the relationship to become less prescribed and more flexible. For this third phase, we returned on three separate occasions to conduct mini-sessions with the directors separately, and one with both together.

This appointment and intervention proved to be highly productive for the company. With new working strategies, many of which were adopted across the company, and with greater functionality of the directors, factions dissolved, productivity rose, and profitability increased almost immediately. A score of 9/10 was given for the mediation process, and 10/10 for the facilitation.

Welcome to Stephen Twist Mediator

With over 40 years experience as a barrister in private practice, and the last 21 years as a mediator and arbitrator, I felt that the time had come for me to launch my new, personal dispute facilitation service - 'Stephen Twist Mediator'.

Increasingly, I am being instructed by other lawyers and in-house managers to act as a facilitator in intractable disputes. These cover almost all areas of conflict - commercial disputes, public authority issues, breach of contract, professional misconduct, land and boundary disputes, Wills and Intestacy issues, and workplace and employment conflict.

It seems that a significant problem for dispute managers and human resources teams is to find an individual facilitator who has technical knowledge of the issues, a knowledge and understanding of the legal points, and a track record of successful interventions. The principal mediation services provide lists of facilitators, but 'a list' cannot match the relationship of trust with a known, bespoke facilitator with successful experience who is entirely independent of the organisations concerned.

Over the next few weeks I will be posting details of the services I can offer, my collaborative method of working, facilitation styles - including evaluative facilitation, and examples of disputes in which I have been appointed as an independent facilitator.