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.

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.

European Forum for Restorative Justice - Leuven Belgium / Belfast Northern Ireland

Michael Klitching, Chair International Forum for Restorative Justice, David Ford, Justice Minister for Northern Ireland and Tim Chapman, University of Ulster - Conference Chairman outside Queens University, Belfast

Whilst traditional mediation places a focus on re-engaging relationships, it has never been a core aim. Mediation, being party-led, goes only where the parties choose to go - frequently to reach a working agreement, but not to fix their relationship.

That is fine, but what if the parties to a dispute wish also to restore a trading, contractual, employment, operational, social, or other working relationship?

Restorative Justice (RJ) used to be the term for 'interventions between victims of crime and offenders'. Over the last few years, RJ has transcended this simple definition to become a highly recognised transformative technique for 'fixing relationships' of all kinds. Herein is its power.

After the European Forum's 'Accessibility and Initiation of Restorative Justice conference' in Leuven, Belgium in May 2014, I went on to join the Forum's 8th International three day Conference 'Beyond Crime- Pathways to Desistance, Social Justice and Peacebuilding', this year held in June at Queen's University, Belfast, Northern Ireland, supported by the University of Ulster.

It is hard to imagine a more illustrious line-up of plenary speakers - Shadd Maruna and Kieran McEvoy, University of Belfast; Joanna Shapland, University of Sheffield; John Braithwaite, Australian National University; Tove Malloy, European Centre for Minority Issues; and Brunilda Pali, Catholic University of Leuven. Throughout the three days, there were fifty five parallel workshops, each headed by experts in their field, many with international expertise - Northern Ireland, Romania, Germany, Tasmania, Portugal, Estonia, Singapore, Hungary, Russia, Ireland, UK, New Zealand, Netherlands, Spain, Norway, Albania, Macedonia, Belgium, Austria, Canada, Finland, Serbia, Sweden, Brazil, USA, Italy, Chile.

A summary such as this can only adequately address 'net effect'. Just as travel broadens the mind, so international collaboration broadens both vision and skill sets. The net effect for me as a facilitator was the opportunity to witness the communality of approach amongst other facilitators, and to experience the elements that inject energy into a process which at times can be very challenging.

Restorative Justice, whilst reminiscent of interventions in crime, has become the advance-track of the mediation movement. For public organisations, trading companies and in the workplace - facilitators out there - take notice and learn skills and approaches from RJ practitioners. Ignore them at your peril!

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.