When trawling the annals of the internet, you never know what you will find. But, every so often you stumble across a gem.
Buried in the BBC archives, my scattershot googling led me to this: The Search for Agreement – Mediation (2000) on the BBC World Service, Global Business. For some at CEDR and the wider ADR community, this piece will be a fond trip down memory lane, recalling the early days of mediation in the UK as it fought successfully to establish itself in the legal landscape. Conversely, for me, coming up to my one year anniversary at CEDR, it provides tremendous insight on how far the profession has come and an opportunity to reflect on the direction of travel.
Much of what was true 18 years ago still holds true today. Former CEDR Director and Mediator Frances Maynard, speaking about mediation at the time said, “supposing you were to wake up tomorrow, and this dispute which has been consuming [you, your business and management time] could actually be finished. The pressure is on business now far more to deal with issues and get them out of the way. Business is tighter now than it was”. This, in addition to strong party input and influence over the settlement, encapsulates the core benefits of mediation that remain the bedrock of the process: time and cost efficiency, reduction of wasted management time and a commercially sensible focus. Equally, the pressure is still on businesses, multi-national or small, handling six figure claims or employee disputes – to settle the matter quickly and in a constructive, forward thinking way, refocusing time and resources back to innovation and money-making. After all, the sophisticated management of conflict and deadlock often provide opportunities to right wrongs, learn and improve.
“It’s lawyers, lawyers, lawyers” – Broken Record?
Douglas Hurd, the Lord of Westwell, former Home and Foreign Secretary and the then CEDR Chairman, speaking on the programme, talked of a potential obstacle in the process; “Lawyers have prepared the bunker, particularly in commercial cases.” In ADR’s formative years, it was not uncommon for lawyers to be sceptical of and unfamiliar with the various new processes. This led to a reluctance to engage with and encourage their clients to mediate. Furthermore, their adversarial and overly legalistic mentality was not thought conducive to mediation which thrives on openness, collaboration and a focus on commercial and personal issues as well as legal. Fast forward 18 years and painting lawyers with the same brush would be grossly unfair. A combination of judicial led encouragement, upskilling and the wider appreciation for the benefits of mediation, has led to a significant attitude and skill shift. While this barrier is not completely removed, lawyers are increasingly an asset to the mediation; understanding how and when to initiate the process, preparing and representing their clients effectively and engaging in more sophisticated, collaborative bargaining. It’s too easy and frankly a cop-out to blame just the lawyers nowadays. Let us continue our work and dialogue with the legal community, supporting them and responding to their needs, advancing the field together; let us also look at our own house too. In both areas, there may be room for advancing further.
One-Day Mediation – surely there’s more …
“Experienced mediators say the process is best done over the span of a single day … because the process concentrates the mind wonderfully”, another quote from the programme. The one-day model, while still by far the most common form of mediation should not necessarily be the automatic route. Flexibility and party control, two cornerstones of mediation, allow the process to be adapted, extended or shortened and combined with other mechanisms. CEDR is looking to research, understand and implement dynamic and innovative processes that suit individual needs and ultimately offer the best possibility for the resolution of a dispute. One recent example of this was a successful multi-party, multi-million pound dispute. Preceding a two-day mediation was a series of facilitated discussions allowing for the exchange and management of thousands of documents, narrowing and understanding of issues and early, constructive cross-party engagement. Bespoke procedures such as these ought to be considered more often as well as facilitation of early negotiation contact as a stand-alone tool or in support of other dispute resolution methods.
Taking a sweeping view of ADR today, we can see a number of areas of innovation and change. The emergence of MED-ARB, (mediation followed by the mediator acting as a binding arbitrator in the event of no settlement) and ARB-MED-ARB, is growing in popularity as a concept, especially within the Asian dispute resolution community, spearheaded by the Singapore International Arbitration Centre (SIAC) and Singapore International Mediation Centre (SIMC). The resolution of Investor-State disputes, traditionally the prerogative of arbitration, is a key area of growth for mediation interest. CEDR ran the first ever Investor-State mediator training course in Washington last year and will be doing so again in 2018, this time in Paris. Dr Karl Mackie wrote a blog on this topic which I recommend for more information. Mediation has also begun to successfully find its home in a number of areas niche sectors, most notably clinical negligence. A firm part of NHS Resolution’s new strategy for handling disputes, mediation in this field has proved to be tremendously successful in helping both sides, patients and medical professionals alike, deal with what are very often highly emotional and distressing circumstances.
‘You better start swimmin’ or you’ll sink like a stone’ – what’s next?
CEDR has achieved a tremendous amount in its 28 year history and since this BBC programme was first broadcast in 2000. However, no organisation should rest on its laurels. CEDR is committed, with the support of its members, to innovating within the field and helping society better handle conflict. Two such examples of this are our Diversity and Inclusion Project, looking to identify, understand and remove any barriers preventing greater diversity in our profession and New Dialogues, which will teach young leaders in the 21st Century, the essential negotiation and conflict management skills needed to thrive in both their professional and personal lives.
By Ben Thomson