They were very different, in form and content. In London, we sat mainly in theatre style rows listening to speakers who seemed very far away! The programme was varied and included telephone mediation, users’ needs, EU proposals, community and workplace mediation – and the results of the biennial CEDR audit (mediation appears to save people a huge amount of money – £2billion pa they estimate- at relatively little cost). In Edinburgh, we sat at round tables, listened to a variety of speakers on policy matters and the benefits of mediation and discussed in our groups some of the practical issues around actually getting it embedded. The Scottish Government Minister, Roseanna Cunningham, in an impressive speech, said it was not a question of “whether” but “how”. Encouraging!

Several points of interest emerged for me. Firstly, it is less and less easy to categorise disputes into classic subject headings. For example, a family business disagreement may raise family, partnership, company, commercial and/or workplace issues. One of mediation’s great strengths is to offer flexibility to map out the issues in a comprehensive way – and design a process to match. It is after all, as many speakers pointed out at each event, the clients’ dispute – and their money, future and piece of mind which is at stake.

 Secondly, in England and Wales business leaders are taking a lead with a Dispute Resolution Commitment: “In the event of a dispute where negotiation has failed and prior to beginning litigation, we are committed, wherever possible, to exploring with the other party the resolution of the dispute through collaborative working and the use of Alternative Dispute Resolution processes, such as mediation.”

Thirdly, according to the CEDR audit, resolution rates for commercial mediation continue in the region of 90% but with around 70% resolving on the day and 20% shortly thereafter. This accords with Core’s recent experiences where a number of complex commercial matters have settled a few days after the mediation day with further input from the mediator. A sign of a maturing approach perhaps.

Further, Professor Bryan Clark reminded us that Robert Webb’s words about handshakes being easier to enforce are supported by the evidence: 90% of mediated agreements endure as against 67% of court judgments.

And, thankfully, we were told that most people no longer wish to mediate into the wee small hours….the days of mediating into the night appear to be receding!

This Resolution was discussed at the annual ABA Dispute Resolution Section Conference in Washington DC in April. That lawyers should be both concerned about, and seeking to take a lead in, how to restore civility in public discourse was striking in itself. I wondered about the possibility of a joint resolution in similar terms in Scotland by the Law Society of Scotland and the Faculty of Advocates. The timing would be right – why not?  

As an adjunct to this discussion, I participated with an international panel of speakers in a seminar on “collaborative governance” and reflected on Scotland’s own important effort in the ground-breaking 2020 Climate Change Group, which I am privileged to facilitate, and on the prospects for a different approach to dialogue on the constitutional question, a topic of interest to many at the conference. I also mentioned our recent work with the Occupy movement here in Edinburgh.  There is much to build on.

His central theme was how it is possible to negotiate even when there is no or low trust. You just have to deal with it as an issue. Clear communication is essential, respect for others (no matter who or what they are and what you think of then) is critical and there is value in a third party to build trust in the process.

He spoke of the paradigm shift from the .org world to the .net world, from structured organisations to loose networks – and the fascinating shift to structured public engagement and civil discourse. In Israel, they have facilitated street conversations – 1000 round tables in 80 locations. What about that in Scotland?

At the start of a mediation day, I frequently remind parties that the mediator is not a magician and that no metaphorical rabbit will be produced out of any metaphorical hat.  And yet, I am also able to say that, in the vast majority of instances, parties will reach a resolution on the mediation day or shortly after, even where they are apparently deeply entrenched or have been fighting for a considerable length of time. I also mention that it may feel like wading through treacle to get there….

There are probably many explanations. However, a recent seminar conducted by Eolene Boyd-MacMillan, author of Conflict in Relationships, threw some light on this for me. Much has been written about the human brain in recent times. Eolene reminded us that the brain has two components, the limbic brain, which developed as homo sapiens dealt with primitive conditions and learned the importance of fight or flight.  Later, the neo-cortex, the more rational part of the brain, was formed. But the two were – and are – not united. Our emotions could still override logic, especially under pressure. We are not Mr Spock.

I recall reading a book some years ago by Arthur Koestler, entitled Janus, in which he made this very point about the brain. In that context, he was writing about our ability to live “as if” the threat of nuclear war did not exist. Recent writing, such as Daniel Kahneman’s Thinking Fast and Slow, emphasises the importance of the unconscious mind and its dominance in our decision-making over the more rational, conscious self. Research showing that humans tend to be disproportionately optimistic about the outcome of events, as reviewed on BBC’s Horizon programme recently, all seems consistent.

We are reminded here too of the Black Swan theory as developed by Nassim Nicholas Taleb, in which he explains the disproportionate role of high-impact, hard-to-predict and rare events that are beyond the realm of normal expectations in history, science, finance and technology and the psychological biases that make people individually and collectively blind to uncertainty.

Eolene Boyd-MacMillan’s thesis is that we need to find ways for the neo-cortex and the limbic brain to cooperate. Creativity depends, she says, on the union of things maintained separately. More generally, dealing with differences requires us to work with differing or opposing viewpoints. Tension is essential but we need to avoid polarisation and embrace collaboration. Conflict is natural – it’s how we deal with it that matters.

Eolene considers ways by which this can be done. As one physical response, she recommends deep breathing in order to slow down the fast-reacting limbic brain when it perceives threats. By way of example, meditation is helpful.

For me, this is a breakthrough moment. We have laughed for years at jokes confusing mediation with meditation.  But here’s the point. What mediation offers is a process in which parties who would (or have) otherwise reacted adversely to each other – and who have tended angrily to confront each other, or who fear passive capitulation or who avoid addressing issues altogether – are helped to engage, within a structure.

The structure serves initially to slow down the speed of that engagement, to allow things to be said, heard and really understood. It enables acknowledgement, explanation and mutual recognition to be achieved. Often, this could not happen without the involvement of a trusted, independent third party. And it takes time, like wading through treacle. It requires the power of the pause.

The whole point of mediation at this stage is arguably to override (or at least channel) the anger and emotion generated by the limbic brain, which could impede any progress towards resolution  – and which probably has done so for months or years already (sometimes aided by the adversarial system of litigation?). It also enables parties to face up, realistically, to risk, uncertainty and the adverse effects of undue optimism.  The prospects of success often need to be viewed through a different lens at this stage. 

Then, having helped parties to gain understanding and (often) a different perspective, the good mediator will help them to work creatively, harnessing both the emotions and the rational brain in a structured way to help them to look at possible solutions. Differences will remain but the parties nearly always acquire a sense of forward-looking purpose. Paradoxically, when this works well, the process speeds up and we are often all surprised by the short time it takes to reach a conclusion which is viewed as realistic and optimal in all the circumstances.

It is written for the market outside North America and the author has sought to be “culturally neutral” (though with reference to various cultural practices). He has drawn on sources and the work of colleagues far and wide and thus has enriched this valuable text.

My eye was drawn to an appendix discussing decision tree analyses and to the final chapter on breaking impasse. But one has to go back to the start and understand the difference between positional and problem solving approaches to negotiation, covered in chapter one.

There is extensive writing about preparation – critical to successful advocacy in mediation – and the book is full of helpful insights, examples, checklists and references to other excellent sources.

Thoroughly recommended!

Undoubtedly, there is a process to follow, which will enhance dialogue. Firstly, we need to understand what our objectives are, the underlying purpose – or the overarching big picture. Failure to identify this at the outset of a project, or losing sight of it later, condemns many an initiative to failure. We need to ask ourselves what our real needs are – and ponder the real needs of others. Where might these converge? What do we have in common? What is worrying others? Why? What has worked in the past – or not? What can we learn from this? All of these questions, and much more, are essentially preparation – for which, in our busy world, we find less and less time. Paradoxically of course, the more we prepare, the less time we will take overall.

We need to be prepared to build relationships – and to work with people whatever we think of them or of their behaviour or values. If we can communicate with others with respect and courtesy, we can scrutinise and assess the issues with rigour. To do that, we need to understand, really understand, what is going on. That can only be done by suspending our desire to fix or solve the problem immediately, or according to our own view of the world. And, with that, we might just begin to build – or rebuild – trust.

We must therefore spend time exploring the real issues, concerns, hopes, fears, objectives and underlying needs of all parties with an interest – the stake-holders. We can only do so by asking questions, lots of them, and by really listening. But, for most of us, our tendency to assert our position, to justify our claims, precludes this and simply drives people further apart. However, we cannot fulfil the aspirations and maximise the gains all round without a true understanding of what motivates others. And we’ll need to find mechanisms and techniques for large-scale discussion as well as more intimate conversations. We’ll want to use appropriately supportive and creative venues and technologies, all of which we will find exist already.

Once we have explored and focused the issues in full, we can identify and assess the options open to us. Here, creativity can be encouraged. What gems might we find among the apparent dross? What are the pros and cons of each? Can we prioritise the possibilities? What criteria would we apply? What costs and gains might there be? What are the best and worst alternatives? What will work in practice? And so on, until we begin to see the preferable solution emerging, perhaps something unimaginable when we started and which might never have come to light had we adopted our right/wrong, let’s just “solve the problem” standard method.

Then, how do we help others to recognise the possible way forward? What about other constituencies? Is there a way of presenting a message that will work for them? How do we build bridges to those who are disaffected, without whose support a project may founder? How can we find a way to ensure that our interests are recognised and acknowledged, while finding ways to converge or align with the interests of others? Can we find ways to test proposals without feeling threatened, protective or defensive? Do we need to build in an element of confidentiality to the deliberations and, if so, how to balance with transparency? How can we help people to make informed choices – and to exercise appropriate responsibility?

Is this all too difficult? No it’s not, but it will be hard work. And it is skilful work. Our benchmark is not whether we can create a panacea but whether the outcome is at least marginally better than the alternative – the present way of doing things?

Read the rest of this article on Mediate.com

Much has been written about the need for better dialogue in Scotland and the world as we seek to find effective ways to address some of the seemingly intractable issues we face in the twenty first century. There is a strong sense that the conventional antagonism of adversarial politics and the blame culture, which attaches to so much decision-making, is not what most people want.

There is little doubt that the win-lose, black-white paradigm is costly, in money, time, opportunity and dignity. It denies the obvious fact that life is complex, that most people are trying their best in difficult circumstances and that creativity, imagination and compassion are more likely to achieve better outcomes than zero-sum games where there are often only losers.

Sadly, many of us seem hard-wired to be defensive, critical and judgmental. Them and us. Our instinct is towards self-preservation and self-justification. It seems hard to really listen to another point of view, to acknowledge different perspectives, to work with others to find new approaches to problem-solving, and to recognise difference and diversity as resources rather than threats.

We tend to personalise the issues and to confuse the problems with the individuals who are trying to deal with them or who are perceived to have caused them. Instinctively, we look for confirmation of our beliefs, perceptions and prejudices, not appreciating that these are often wrong and based on assumptions which we make about the world and our fellow travellers and which are often ill-founded. Our minds are frequently closed to other points of view.

This partisan and rather unsophisticated approach to public debate, decision-making, problem-solving and conflict resolution deserves our understanding as a facet of our vulnerability and fearfulness as humans. It reflects our strong need to save face and not to seem to be losing status or whatever it is that gives us a sense of importance in the world. But such a way of doing things is no longer acceptable. The problems and challenges we face individually and collectively are too great and multi-dimensional. The need for a different means to engage, consult, decide and resolve is too pressing. We do need to change.

The aspiration to find a more civilised way to conduct discourse in the public square is easy to state. The more fundamental question is ‘how’? Diagnostically, we are probably relatively unskilled in holding effective conversations. We lack the process and the techniques to engage properly with the difficult issues and to work our way through to fully developed solutions.

Arguably we need to learn a new way of conversing, moving from debate to dialogue. This would give us the ability to hold more effective public consultations, conduct difficult meetings with confidence, reach more productive decisions, and resolve disputes and conflict in a more collaborative way. What might this new learning involve?

More on this in a later post!

What is interesting is that Game Theory is all about human interactive behaviour to which mathematical modelling is applied or, as David’s notes tell us:

“Game theory is a mathematical method for analysing strategic interaction.”    Nobel Prize Citation, 1994

“Briefly put, game and economic theory are concerned with the interactive behaviour of Homo rationalis—rational man.”    Robert J. Aumann, 1985

“Game theory can be defined as the study of mathematical models of conflict and cooperation between intelligent rational decision-makers. Game theory provides general mathematical techniques for analyzing situations in which two or more individuals make decisions that will influence one another’s welfare.”    Roger B. Myerson, 1991

“A game is being played whenever people have anything to do with each other.”    Ken Binmore, 2007

A well recognised application is the Prisoners’ Dilemma –or The Gain Game on Core’s training courses!

In the classic model, there are 4 choices: in 1) and 2) each prisoner seeks to “win” it all at the expense of the other; 3) both “defect” and have a less costly than losing outcome, or 4) both cooperate (implicitly at least) and maximise the joint outcome – less satisfactory than winning at the expense of the other but preferable to losing in 1) or 2) or the result for each in 3).

        A                                                                                                         B

I may not have explained that well. However, it occurs to me that this is broadly what happens in some negotiations we see in mediations. Both parties wish to achieve a “win”: 1) or 2). That is not (usually) available in negotiation or mediation. 3) possibly represents a delayed, door of the court, more costly, more arms length settlement. 1) represents a prudent commercial arrangement reached only by communicating in the process of mediation. Neither party is satisfied in the sense of achieving a maximal result; but each saves more than it will lose on a cost/benefit analysis – unless it were ultimately to win in court  – and, even then…….

We expressed the view that this proposal seems to be an essential component in delivering an effective system of dispute resolution in Scotland in the future.

We said that having a broad-based policy group, able to analyse and make recommendations about how to enhance the delivery of civil justice and, in a wider sense, resolution of disputes in Scotland, could help to make a significant difference to economic performance generally, make Scotland a more attractive location to do business and to resolve disputes and address much needed changes within the present system in a holistic way. Otherwise, Scotland may continue to lose business through the lack of a modern dispute resolution system.

We suggested that ‘civil justice’ needs to be defined more broadly or the Council specifically established to include a wider remit, where consideration of preventative and other non-court dispute resolution measures are part of its principal scope, not just an adjunct.  The appropriate role of the courts would be one of a number of topics within its remit. There is a need to examine more broadly the (financial and other) effectiveness of civil justice and the role of courts and the effectiveness (alongside, and separate from, courts) of other processes and measures which are well established in Scotland and elsewhere. This body could do so and place the court process and civil litigation – and dispute resolution in society generally – within a broader context.

We offered these comments against a background of some considerable experience of the very significant and often quite disproportionate time and cost incurred by many litigants in Scotland who find themselves within the civil litigation system. We sense that this will only be alleviated by a re-focus of the broader dispute resolution system away from litigation towards other more appropriate measures, such as mediation, for the majority of matters which at present come before the courts, although are not actually adjudicated upon. The result should be a more efficient and cost-effective litigation system.

Our training arm saw a substantial increase in the uptake of our conflict management, mediation and negotiation courses. Work with UK Sport in the run-up to the Olympics, with the London and Welsh Assemblies and with many other public and private sector organisations emphasised the strength of our in-house offerings.

The legal sector remained a strong user of mediation services. In recent years, we have worked with over 150 different firms, many of them involved on several occasions, some over 40 times. The number of individual solicitors with experience of commercial mediation is now well in excess of 500 across Scotland.

Cases in 2011 included major commercial disputes, transport and infrastructure, construction projects, professional services, intellectual property, agriculture, sport, planning, oil and gas and workplace and employment issues. Clients ranged from major corporates to SME’s and individuals.  39% of mediations involved public sector bodies such as health trusts and local authorities. Most matters were resolved in one day.

At a time of economic difficulty for many sectors, mediation offers speedy and cost-effective ways to help bring problems and disputes to a conclusion at a time when most businesses and individuals simply cannot afford long-running unresolved conflict.  According to a recent EU report, the cost of mediation is less than one fifth of litigation costs and is four times faster.

The words we hear most often are these: “Why did we not have this conversation two years ago?” Mediation is now used frequently at an early stage to nip conflict in the bud or to set up good business relationships from the outset, just as it can be used to bring to an end long-running litigation or unresolved impasse.

Research suggests that conflict costs UK business more than £30 billion a year, takes up over 20 per cent of leadership time and results in the loss of 370 million working days. Surely, much of this could be avoided? Recently, Core worked with a major Scottish company as it prepared its management and union representatives for wage negotiations. The result was a breakthrough in relations. As one key player noted: “Rather than fighting for what we each wanted, we found something completely new by working together.” Negotiations were completed in a few days rather than several months.