UK Mediation Journal Issue 7 by Iconic Media Solutions

Issue 7

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Welcome to Issue 7 of the UK Mediation Journal Welcome to Issue 7 of the UK Mediation Journal, published by Iconic Media Solutions in partnership with Civil Mediation Council. In this issue we take a look at how mediation is currently being used to resolve large scale disputes both commercially and in the workplace, including issues arising from China’s ‘One Belt One Road’ infrastructure project. We continue with the conversation of sexual harassment in the workplace and examine the many challenges faced by those wanting to make a complaint. Over 28% of those who do not report sexual harassment cite the potential damage to working relationships as the primary reason. Mia Forbes looks at the place of mediation in this very difficult process and how it can help. Read more on page 16. Confidentiality is one of the most important factors in any workplace dispute, find out how confidentiality in workplace mediation works when HR needs to manage the implementation of any agreement. We hope you enjoy this issue and should you wish to submit an article for Issue 8, please email editorial@iconicmediasolutions.co.uk

Craig Kelly

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Inside: 6.

Confidentiality in workplace mediation: how does that work?

Mediator Research Highlights: Developing an effective personal style through reflective and reflexive learning

11. Fire Fire, Fire Fire! Fetch the engines - pour on water 12. Speaking from the Soul in Mediation 14. About ADR-ODR International 15. Workplace Mediation 16. Mediating Sexual Harassment - Really 19. Independent Mediators Limited 22. The Psychology of Uncompromising Behaviour 24. Learning from environmental disputes 25. Executive Mediation: How to Solve Your Clients’ No 1 Headache - and Steal a March on the Competition

26. Big Projects, Big Disputes - Bring in the Mediators 28.

What is Total Conflict Management?

30. First rule of fight club - don’t talk about fight club! 33. Directory of Mediation & Training Providers

Managing Director Iconic Media Solutions Publishers of the UK Mediation Journal

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Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd affiliated with any company or organisation listed within. It is advised before appointing a mediator or trainer that you carry out your own quality and competence checks.

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Confidentiality in workplace mediation: how does that work? David Whincup, Partner and Head of Employment, London, Squire Patton Boggs (UK) LLP ow does confidentiality work in workplace mediation when HR needs to manage the implementation of any agreement? One of the advantages traditionally billed for workplace mediation as an alternative to formal dispute resolution processes is confidentiality. Confidentiality creates the “safe space” required for a full and no-commitment exploration of the feelings, issues and possible resolutions and forms a key plank of the usual pre-mediation agreement. But there are limits, since the opposing parties to a workplace mediation could otherwise agree between themselves something which worked for them but for reasons budgetary, structural or commercial could or would not be implemented by the employer. As a result, the principle of absolute confidentiality has to flex somewhat when a solution requires involvement on the part of the wider business, i.e. where that solution is more than behavioural adjustments by either or both parties to the mediation. Even then, it is likely that HR will need to know the outcome of the mediation at some stage. If there is no agreement, then the problem which led to the mediation is clearly unresolved and it will probably fall to HR to manage the next steps, which may include a formal grievance, investigation or disciplinary action. In most such cases, HR needs to know only that there is no resolution yet, not why. That “safe place” will only be preserved if the detail of what passed between the parties and the mediator during the mediation itself remains truly confidential – the hopes and fears expressed, the resentments aired and the proposals made. Those “inner workings” are usually irrelevant to the steps which HR or the business may need to take to put the eventual agreement into effect. Where the mediation is unsuccessful, a workplace mediator should therefore not reveal to HR the stance taken by one party or the other, however much he/she may be pressed to allocate responsibility by an HR professional trying to determine the next steps in the matter. The exception is perhaps where the process falls over because one party refuses to mediate at all. At that point it could be argued that he/she had become the principal obstacle to resolution of the dispute, with potentially different formal consequences, and that HR would have the right (indeed, potentially the obligation) to act on that knowledge. If the mediation succeeds, the parties may well be able to keep it between themselves and not involve HR. As soon as one party defaults on the agreement, however, HR would normally be the first call for the employee seeking to enforce it. HR would need to understand at that point at the latest what the parties had agreed, even if they had originally agreed to keep those terms confidential. Otherwise the agreement

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becomes impossible to enforce and so, in practical terms, pointless. HR is bound by obvious professional and contractual obligations of confidentiality in relation to employee matters, which should provide reassurance to the employees concerned. However, important actors needed to implement a mediated settlement may not be part of the HR function. Line managers, colleagues, payroll, etc., may all need to agree. With this no doubt in mind, the CEDR model agreement states that the parties will keep the terms of their accord confidential “except insofar as is necessary to implement and enforce any of its terms”. Where that agreement concerns a transfer, promotion, termination, training, etc., it makes sense to have HR involved from an early stage. Selling that to the employees in dispute may not always be easy, as HR will frequently be seen as biased in favour of the senior employee and where that is the case could not sit in one or other room through the mediation without damaging the apparent neutrality of the process. Therefore it may make sense for the mediator to encourage the parties at the outset to seek the input of HR as soon as their discussions begin to settle on some resolution which requires others’ consent, even if not until then. This may be directly or by asking the parties “How would that work, who would need to be involved/consulted, would anyone else need to know?” HR will then take upon itself the duty to disclose the issues or suggestions arising from the mediation only on a ‘need to know’ basis in order to resolve them. It is wise for HR to give the parties some early indication of who in management would need to approve a particular proposed solution. If either employee were so sensitive about the level of disclosure implicit in that onward referral that he/she would prefer it not to be made, the proposal could by his/her choice be dropped at that stage and full confidentiality preserved. Ultimately the parties must decide between them where the line lies between what they wish to agree and how far it can be kept confidential. For these purely practical reasons absolute confidentiality cannot usually be guaranteed to a prospective workplace mediation participant, either by the mediator or the business. What can be said to him/her with some certainty, however, is that the common alternative (formal disciplinary or grievance procedures) will generate much more noise over a much wider population within the workforce.

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Mediator Research Highlights: Developing an effective personal style through reflective and reflexive learning. Roy Poyntz, Mediator, Researcher, Trainer y research examined the practice of in-house workplace mediators in British universities. For these practitioners, mediation is an occasional activity – an adjunct to their main roles – and they typically have infrequent opportunities to practice: the most experienced participant in the study had undertaken 20 cases over a period of seven years. This is a characteristic of practice that is shared by many newly trained mediators. At the start of their practice, the mediators in the study group aim to achieve a mastery of the skills and the process of mediation introduced in in their basic training. However, more experienced mediators move beyond the formal model to develop a personal style and complex schema. Style is not fixed and may, with experience, become increasingly flexible. Research finds that mediators operate with either a simple or a complex schema (Kressel, 2013). A simple schema is portrayed as less stressful, relying on formal models, simpler intervention strategies and ‘linear’ procedural scripts. A complex schema is less reliant on formal models and utilises a diversity of intervention strategies. The latter is accompanied by more decisional stress as mediators have a greater array of choices and possible objectives. Mediators are generally trained not to judge the people or the problem. At the same time, a mediator must judge when and how to intervene. They may select from at least 100 identified

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techniques (Wall and Dunne, 2012) and their judgment is about which is most likely to move the process on in the circumstances with these people. During the mediation they may also choose to do nothing whilst remaining an engaged but observant listener. Listening is a demanding state: responding to interactions between the parties which may involve high emotion and tension, being in the moment, and holding a mental map of potential routes forward. Over time, mediators are said to simplify complex choices by developing a personal style (Wall and Kressel, 2012) – a synthesis of formal mediation model and informal personal schema – that encompasses their own approach to mediation. A personal schema operates at an implicit unconscious level drawing on personal insights acquired over time and with experience. Developing a personal style requires an opportunity to learn from experience and using a framework for managing learning which supports making the implicit explicit. University mediators develop their personal style through post-case reflective practice. This is conducted with their co-mediator, service coordinator and periodically within their university practitioner group. Two types of questions characterise these reflections: ‘what’ and ‘how’? ‘What’ allows the less experienced mediator to ask what they should (or should not) be doing, seeking confirmation that techniques acquired in

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training have been effectively applied. The questions also act as a check on any carry-over of practice from a mainstream role such as coaching. ‘How’ questions address micro-practice, examining which techniques could or should be used and when they should be deployed. For instance, mediators are taught the importance of ground rules in establishing and maintaining a safe space in mediation. Reflective questions help develop effective strategies for applying ground rules. The starting point is ‘what constitutes an effective ground rule?’, and ‘how do I apply them?’. Used in this manner, reflective practice can be effective in identifying gaps in skills or knowledge that can then be addressed within the practice group. The practitioner can become adept at enacting what has been learned in basic training and be functional in interaction. Reflection builds a common platform for ‘the way mediation is done round here’, something of particular importance to the new mediator and the practice of co-mediation. However, to progress further as a practitioner, and develop one’s own theory of practice requires reflexive learning – a willingness to test assumptions with ‘why’ and ‘who’ questions – that makes explicit the unexamined and taken-for-granted aspects of practice. Asking a mediator why they use ground rules promotes a deeper analysis of beliefs and assumptions. Querying whether ground rules are imposed or constructed invites the mediator to consider the power they exercise and the role – the ‘who’ – they perform in the interaction. Being explicit about interaction is of importance to the university mediator as they take a relational rather than

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transactional approach to mediation. Interaction is more than simply the medium in which dialogue occurs and resolution forged and the mediator must therefore position themselves intentionally within the interaction. Consider the question as to who should speak first in the joint meeting of the parties. Does the mediator decide – utilising perhaps a convention acquired in basic training – or do they invite the parties to decide? Either approach may work, but they represent different approaches to the mediator’s position within the interaction. In-house university mediators develop advanced skills by using reflective practice to make the most of their limited opportunities to practice. However, having cemented the foundations for interactional competence they need to draw on reflexive practice to develop their personal style and become fluent in interaction. The process requires thought, and commitment to developing a new kind of judging skill.

Kressel, K. (2013) ‘How do Mediators Decide What to Do? Implicit Schemas of Practice and Mediator Decisionmaking’, Ohio State Journal on Dispute Resolution, 28(3), pp. 709–35. Wall, J. A. and Dunne, T. C. (2012) ‘State of the Art Mediation Research : A Current Review’, Negotiation Journal, (April), pp. 217–244. Wall, J. and Kressel, K. (2012) ‘Research on Mediator Style: A Summary and Some Research Suggestions’, Negotiation and Conflict Management Research, 5(4), pp. 403–421.

Save Time, Save Money, Save Stress Resolution at Work The CMC’s Workplace Mediation event series will be coming to Newcastle in October 2018 and Cardiff in November 2018. For more details of the above events, please e-mail registrar@civilmediation.org or visit civilmediation.org

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Understanding the barrier to implementing mediation

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Unsuccessful mediations – turning refusal or failure to your advantage

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Mediation Conflict Resolution Creating Happier Workplaces Employee Relations Mediation Facilitation Conflict Resolution Training Mental Health & Well-Being Respect, & Inclusion ‘WorkingDiversity with individuals and

organisations to improve their workplaces and working relationships’

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By Robert Still FCIPD of STILLHR We get the call… fire fire, fire fire! “Please help - there’s a relationship breakdown requiring emergency intervention.” Whilst mediation is a brilliant means of resolving disputes in the workplace, we should be asking what lies behind the need for mediation. When two adults in a place of work are not able to talk with each other and resolve differences or misunderstandings, then something is wrong: • • • •

It could be the organisational culture is averse to addressing conflict and would rather turn away It could be a weak HR department not leading the strategic management of conflict It could be the management style maintains silos, hierarchic divisions and cliques It could be the individuals are not able to have a ‘courageous conversation’ and speak with each other about their workplace relationships

One way or another you’ve ended up with a deteriorating situation that has reached crisis point: ‘fetch the engines - pour on water!’

Becoming fire res istant How wonderful it would be if an organisational culture could exist where individuals acknowledge their differences, benefit from the creativity healthy conflict can bring, and show one another compassion andunderstanding. What steps would we need to take? • • • • • • • •

set a culture of respect develop leadership from the top create values driven behaviour frameworks up-skill employees to be more self-aware create a culture of feedback on personal working relationships embed diversity and, more importantly, the inclusion of everyone encourage courageous conversations to receive and give feedback develop policies to underpin requirement that are known about and understood

The path to fire resistance may be a challenge and take time, but the rewards will touch all aspects of the organisation creating a happier workplace for everyone; and a happier workplace is a more efficient and productive workplace.

www.stillhr.com Call Robert Still: 07932 762448 UK coverage with centres in London and Yorkshire 11 UK Mediation Journal, Issue 7

Never fire-proof Employee friction and conflict is inevitable, and fires will start - but there is much that organisations can do to lessen the ‘999’ calls for a mediator. STILLHR can be your ‘4th emergency service’. We can not only send in the fire engines to dampen down the flames of employee conflict, but we can also help put in place a cost effective ‘sprinkler system’ to stop any sparks of conflict turning into an HR inferno! To learn more about STILLHR’s responsive services call Robert Still for an initial informal confidential chat on 07932 762448.

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Speaking from the Soul in Mediation ’ve recently become aware in myself of two very different voices. One I call my social voice. It is a respectable, adult voice, which justifies things on the basis of logic and social convention. It favours long words and buzz words and doesn’t mind a bit of jargon. The other voice, I call my personal voice. It is simpler and more emotional. It rarely feels the need to justify itself. When it does, it says “because I want to” or “that’s how I feel”. My social voice lends me a persona which can be helpful in impressing people or asserting my credentials. But when I want to speak from the soul, it’s the personal voice that I need. It helps me to express myself more honestly. It helps me to connect more deeply with others. It makes me feel more alive, more authentic, more me. But it takes courage to use this voice. At the first hint of mockery or cynicism, it clams up. I go silent, or the social voice takes over. I’ve been thinking about which voice I need as a workplace mediator. I know that the way I talk and listen as a mediator will influence, however subtly, the way the parties talk and listen. If I start the meeting using mediation jargon and legal terminology, it will set a certain tone for the conversation. If I speak in the first person, using words that are simple and down-to-earth, it will invite a different type of conversation. For me, the power of mediation is that it helps people in conflict to reconnect at a personal level. Conflict makes us depersonalise and often demonise the person we’re in conflict with. We lose sight of their humanity and lose touch with our own. Mediation is an opportunity to rediscover the other person as a fellow human being, who is suffering, just like me, and who does things they regret, just like me,

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and who battles with their pride, just like me. For that to happen, we need to strip away the masks, the formalities and anything that puts up a barrier between two people and their souls. As mediators, we can help people do that through the words we choose and the way we say them. But it takes courage to drop the mediator’s mask and sit there, with the parties, as just another human being. All sorts of fears creep in. What if the parties think I’m unprofessional? Will they take me seriously? How can I justify my value as a mediator if I don’t play the part? But that’s my social voice speaking. And it’s precisely the one that separates me from my self and from others. One thing I can do is to remind myself, whilst mediating, that I also suffer conflict, do things I regret, and battle with my pride. I also could do with the help of a mediator from time to time. Another thing I can do is to pay more attention to the way I express myself in dayto-day life. Am I speaking from the head or am I speaking from the soul? With greater awareness I can make better choices and help to bring about more honest, courageous conversations, in mediation and beyond.

Tania Coke is Senior Mediation Consultant at Consensio. For further information on mediation or conflict resolution services, visit: www.consensiopartners.co.uk

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Do you spend a lot of time, energy and money dealing with workplace conflict? Our mediation and conflict resolution services have been developed to improve your bottom line and reduce the negative impact of unresolved conflict. Get in touch to find out how we can help you transform your approach to organisational conflict. You can contact us on 020 7831 0254 or info@consensiopartners.co.uk

13 Sponsored by: UK Mediation Journal, Issue 7 13 A leading conflict management and workplace mediation provider. Mediation, training, accredited courses, consultancy and coaching. www.consensiopartners.co.uk

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About ADR-ODR International About ADR-ODR International ADR-ODR International is the first company to bridge the gap between traditional face-to-face ADR and the digital world of Online Dispute Resolution (ODR). We offer our clients ADR and ODR professionals for hire to help them resolve their disputes. We also offer training for aspiring mediators and arbitrators and many national and international projects. ADR-ODR International is committed to creating dialogue in conflict torn areas across the globe. We have established connections across Europe, Asia and Africa, and will be working across many locations to increase dialogue between conflicting parties. We understand that not all conflict can be resolved in a formal setting, therefore, we have created the Centre for Poetry and Conflict Resolution which will use the power of the written word and poetry to bring peace to conflicting parties.

The Hubs ADR-ODR International’s business model is split into 3 hubs; the Civil-Commercial hub, the Family Hub and the Workplace Hub. The principals of our hubs are Rahim Shamji, Cressida Burnet and Pamela Whitehead who are all also part of our cADRe team. In each hub you can book negotiators, mediators and arbitrators or sign up to our tailor-made mediation and arbitration training.

At the end of each course we record each delegate’s practical exam on their iPad so they can download a copy and we can review their exam performances and get them graded quickly from anywhere in the world. Our aim is to create training that is accessible to all and up-to-date with modern technology. We believe this will allow our graduates to flourish in the modern mediation and ODR industry.

The cADRe We also have a first class team of cADRe experts who are ready to give our clients expert advice on any area of conflict/ dispute. Some of our experts include: Lord Peter Hain (former British cabinet member), Ales Zalar (former Justice Secretary of Slovenia), Dame Linda Dobbs (former High Court judge), Dr Zaza Elsheikh (faithful dispute resolution specialist), Diana Wallis (former MEP and Commercial specialist) and Zoe Giannopoulou (ADR and conflict expert, Greece) to name a few.

www.adrodrinternational.com

Our mediation training – dual qualification as

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Our mediation training is delivered by global experts who are practicing mediators. All of our mediation courses, when successfully completed, include a dual-qualification, meaning that all of our graduates will be qualified as face-to-face and online mediators. All of our delegates will receive hard copies of their course texts and an electronic copy on an iPad which we provide for them to use for the duration of their course. The use of the iPads allows each delegate to have easy access to the course texts, handouts, presentations and video recordings of their practice performances, anytime, anywhere.

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Workplace Mediation The changing world of our workplace and the call for conflict resolution: A quick glance! oday’s workplace is an increasingly diverse environment with a melting pot of challenges and obstacles for organisations and leaders to navigate through. Technological breakthroughs, demographic shifts, the changing size distribution, the age profile of the world’s population and people working longer are all influential factors. As this state of flux continues the need for agility and adaptability seem to be the key to success. Our working environment and the culture associated with it, is becoming increasingly more important with the focus turning more and more towards the workplace environment itself making interactions and experiences between colleagues a primary concern. Having the internal capability to deal with conflict at the root cause is proving an essential part of a manager’s toolkit. Disputes in the workplace can drain resources, reduce productivity and most importantly cause disharmony and if left unresolved can lead to grievance or disciplinary procedures. Most companies will have a benchmark for sensing their workplace climate by the number of formal grievances raised. What seems imperative however, is for leaders to enquire how much time managers are spending on dealing with conflict either between individuals or across dysfunctional teams. The most effective way of dealing with any disagreement or conflict is to nip it in the bud and not allow it to fester. Conflict is an opportunity waiting to explode and usually stems from the need to change. Most of us would agree that we don’t enjoy dealing with conflict. Having those difficult conversations very often feel extremely uncomfortable and unfortunately the longer it goes on, the worse it becomes. Once it has reached a point where an individual feels they need to escalate their complaint to

raising a formal grievance, the relationship has broken down and is then very difficult to restore. Leaders and Managers need to be able to spot the signs quickly. Raising their emotional intelligence, taking time to get to know their teams and solving issues quickly is important. Having great conversations with employees and really listening to what is being said is equally as important. Asking the right questions at the right time allows you to understand what might be driving an individual and how they view of the world. From my many years of mediation experience I can guarantee that the issue presented is not what is always appears, it is usually always something that may have happened years before and now lies at the heart of the matter. Dealing with conflict early and effectively means that Managers need to be able to: •

Build relationships – get to know your team individually and make time.

•

Actively listen – be in the moment.

•

Have emotional intelligence – raise your self awareness.

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Having great conversations with employees – open questions.

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Give regular feedback on the behavioural element of people’s roles.

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Share your observations.

Although the future of dispute resolution in the work place remains uncertain, the potential to address tensions at an early stage has its obvious benefits and no doubt will impact upon employer practices for the better.

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Mediating Sexual Harassment –Really By Mia Forbes Pirie and Anna Stobart lmost 4 out of 5 people who suffer sexual harassment do not report it. That is what Frances O’Grady, Secretary General of the TUC, finds most worrying. We do too. Does the answer lie in the other statistics in the same TUC report on sexual harassment in the workplace (2016)? They show that fewer than half of the instances which are reported were dealt with satisfactorily, whilst the other half were not.

Could mediation (and coaching) be part of the solution? “Where’s the justice in that?” we hear some of you say. Concerns over sweeping allegations under the rug and perpetrators not being adequately punished abound. We, however, believe that there is potentially plenty of justice in mediating sexual harassment cases. Hopefully, by the end of this article you will agree. Either way, we would love to hear your opinion.

Not wanting to mediate is missing the point We were recently asked by a prominent Human Resources journal to provide an example of what a mediation around sexual harassment could look like and how it might work. We thought our example was reasonable and helpful (you can read it at: http://www.miaforbespirie.com/blog/). The worst thing the man in our fictitious example did was to give the woman a shoulder rub, once, when he thought she looked stressed (fair enough, that was not the only thing). The editors (respected HR professionals) came back to us and said that they all thought that such a case should not be mediated. It was a clear case for disciplinary action. The man should be fired. We understand the sentiment – but “hang on a minute”! Like much of the important debate on around sexual harassment at the moment this misses the point on so many levels. Most importantly, perhaps, that is not the outcome the woman herself wanted. Had that been the only possible outcome presented to her, she might well have withdrawn her complaint and remained in an uncomfortable situation, which could then have escalated. That would have been a ‘victory’ at too great a cost and a failure of the system, we think. Bringing complaints to HR can be daunting. Mia wrote, in the last edition of the UK Mediation Journal, about making HR more approachable and the role that mediation could have in that. HR needs to be a place employees can feel safe to turn to with their problems, feeling confident that they will be addressed in a way which works for them. Regardless of the merits or demerits of our particular example, this article seeks to unpack what is lost by not considering mediation in sexual harassment cases.

How can mediation help? How can we make sure that sexual harassment is dealt with proactively and in a healthy way? Are the procedures

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currently in place adequate? Do we need a new approach, and to what extent should that approach involve mediation and coaching? These are some of the questions which this article seeks to answer. Could it, in some cases, even be possible to turn a negative destructive experience into an opportunity for greater understanding and empathy, and a more empowered team and working environment? Could women, indeed, come out more empowered and men change their behaviour and attitudes? We believe that this is all possible, and that mediation is potentially the key to it. We are not naïve enough to think that mediation will work in every case, and of course there are some cases which can only be dealt with by disciplinary action, but mediating does not have to be the last resort. In fact, in our view, it should be among the first. If it does not work, of course, then more draconian steps are still available. It is important to give the victim more choice in how she wants her allegations to be handled. 1% of women say they have been raped or seriously sexually assaulted in their workplace (TUC Report). Let us be clear, we are not suggesting mediation for those cases. In grey areas, however, mediation is an opportunity for change, increased learning and improving workplace culture. It should not be overlooked nor underestimated.

Why women do not bring complaints The most common reason given for not reporting sexual harassment was the fear of a negative impact on working relationships (28%). Other key reasons included the fear that the allegations would not be believed or taken seriously (24%), being too embarrassed (20%), worries about a negative impact on a person’s career (15%), not knowing how to report the behaviour (12%), or indeed that it was possible (9%). (TUC Report) That is a lot of fears. Women want something to change, but the stakes may sometimes be too high, or be perceived to be too high (which amounts to the same thing). And we seem to forget: not everyone who tries to kiss someone or does something inappropriate is all bad. Relationships are complex. Sometimes people we like and care about act in ways that make us feel deeply uncomfortable. A complainant may not want to have them fired for that.

The forgotten grey areas There are clear cases of sexual harassment and deeply inappropriate behaviour. But in this emotional debate we seem to be forgetting that there are also significant grey areas. The law on sexual harassment is, perhaps necessarily, difficult to interpret. Rightly, the effect that behaviour or comments have on the victim is essential. What is acceptable behaviour for one person may not be for another. Moreover,

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what is acceptable, even desirable, behaviour from one person may not be from another. And then there are the power dynamics, which are often highly significant. Harassment is defined in the Equality Act 2010 as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”(emphasis added) This is a subjective test. The word “unwanted” is key. The individual must not want that conduct. This could be different for someone else. What that means is, you cannot know, in advance, if your behaviour is appropriate or not. It depends on the recipient’s reaction. This should give us more than a moment’s pause for thought. The law must therefore enter the murky area of human relationships: different humans, with different sensitivities, different desires, different vulnerabilities and different feelings. There is no doubt that this is complicated and we must proceed with caution. There are also patterns which may be occurring in the background and contributing to an environment which may lead to sexual harassment. For example, as women, many of us have experienced the kind of systemic disregard that Zoe William describes in the Guardian newspaper as being “routinely ignored in meetings until your point has been corroborated by three other men”. Most men do not have any idea what that feels like. Is that their fault? Arguably not. But would it not be nice if they could learn to understand without losing their jobs or being put through the trauma of a disciplinary process? Sometimes, of course, there need to be disciplinary consequences. We get that. But the law of unintended consequences can potentially mean that a draconian consequence in one case means that someone does not come forward in another.. Not only that, but disciplinary procedures are not conducive to there being a genuine exchange where men learn, understand the impact of their behaviour, and in turn transform their work cultures.

The debate has become polarized: this is not helpful Emotions run high around the topic of sexual harassment at the moment. The debate has become polarized. People are seeing things in black and white, right and wrong. As mediators, we know that although there are cases in which a party is clearly and obviously in the wrong, and should be disciplined or fired, reality is rarely that clear cut. And as lawyers and HR professionals, we understand that even when things are clear, they are rarely that easy to prove. Not only is someone more likely to come forward in the context of a potential mediation, but the other party is more likely to accept the inappropriateness of their behaviour. It is important that women feel safe so that they can do the difficult thing: that they can come forward with whatever issues they have in this arena, without an unreasonable fear of being disbelieved but also without the fear of being swept up in a tide of righteous indignation and vitriolic rhetoric. People need to be able to air their concerns in an environment where they know they will be safe and taken seriously. However we are also concerned that the rights of the accused are being eroded. Being wrongly accused of

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sexual harassment in this climate is devastating: the stigma seemingly impossible to erase. The passion, emotion and zeal that characterise this debate stop us from seeing clearly and exploring the complexity and nuances of interactions in the workplace. This prevents us from learning and transforming workplace cultures for the better. We risk creating more fear, and less honesty, with our righteous indignation. Whilst fear may be an effective deterrent to poor behaviour in the short term (which some will appreciate), longer term, we do not believe that this is what anyone really wants. Despite our good intentions, we may be working against ourselves.

Mediation: an opportunity for a healing conversation We cannot help but wonder if the editors who did not think our example should be mediated came to that conclusion partly on the basis of information that would never have come to light without the ‘mediation’. It is hard to “un-know” information that you know. And, particularly, in this climate, it is easy to be shocked by human weakness. In our example, had the case not gone to mediation, it is likely that the man (if confronted) would have denied all of the allegations. There may have been no evidence other than the complaint itself, and the situation could have been left to fester and never even been brought to the attention of the man. Mediation provides the opportunity for a confidential, frank cards-on-the table discussion. A certain amount of confidentiality is essential. It allows people to reveal information they might not otherwise reveal. When people admit to their mistakes and apologise for them, this can be deeply transformative. The victim hears her concerns validated but also any misunderstandings can be cleared up (and there are often misunderstandings). People often learn unexpected things about each other, growing in empathy and changing their behaviour deeply. The perpetrator (if he has done something wrong) learns the impact he has had on the other person. Compensation is possible where necessary or desirable. Transferring one or both parties, or even losing one, may be possible outcomes, as will agreeing a new way forward with different behaviour and greater understanding and empathy. When people who have not understood the impact of their behaviour suddenly gain insight into it, that can positively affect their whole behaviour and the effect they have on others in the workplace. This is one way to change workplace culture. Supplemented with coaching, where necessary, and regular check-ins, people, dynamics and teams can be transformed. If there are wider issues in the team and organisation, these can also be addressed, either directly or through training. Other benefits of mediation compared to a more formal process include: •

•

It is less adversarial. The two parties are invited to give their perspective in a statement, and the mediator helps to find common ground. It is less formal and therefore less time consuming than the grievance and disciplinary route. This means that it is less resource-intensive and people can move on with their lives more quickly.

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It is not focused on finding fault (but the mediation approach does not preclude the harasser from facing disciplinary sanctions/consequences) • It involves fewer stakeholders (most grievance and disciplinary processes requires representatives, and sometimes union members, present) and is therefore more likely to protect confidentiality. • Mediation creates a level playing field by shifting the power dynamic between the alleged ‘harasser’ and the victim. Somewhere between 52% (TUC) and 60% (Slater & Gordon) of women have experienced some form of sexual harassment at work, including unwanted touching, and 20% have experienced sexual advances (TUC Report). If we want to clear this up, either we need to fire a lot of men or we need to find a different solution. HR is key to literally re-writing the manual so that mediation becomes not only an option for sexual harassment cases but a potential first port of call. However, it is not enough to silently re-write the manual. The processes available, how to make a complaint and the fact that the complainant will have power over the process needs to be known and understood throughout the organisation. In addition, HR needs to become more approachable, as Mia described in her article in the last issue of this journal. Mediation, coaching and training are essential to changing workplace culture. Harassment in the workplace is always wrong. But we hope that you will agree that mediation is not

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a cop-out in these cases but a potentially valid way of dealing with complex conflicts, helping people to understand and empathise with each other and transforming work culture for the better. Either way, we are interested in hearing your thoughts on these topics. The discussion is very much alive.

Endnotes: The authors would like to acknowledge that the article is written in line with the TUC report from with the ‘assumption’ that the man is the alleged perpetrator, and the woman the ‘victim’ of sexual harassement. This is because women are more likely to be victims of sexual harassment. The authors, however, acknowledge that men can also experience sexual harassment and that when they do, it can be as difficult, if not more (because of exacerbated feelings of shame) as it is for women.

TUC Report (in association with Everyday Sexism Project): Still just a bit of banter? Sexual harassment in the workplace in 2016 Equality Act 2010 Sexual Harassment 101: What everyone needs to know, by Zoe Williams, The Guardian Newspaper (https://www.theguardian.com/world/2017/ oct/16/facts-sexual-harassment-workplace-harvey-weinstein)

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Independent Mediators Limited Independent Mediators Limited is a group of leading, full time commercial mediators whose independent practices are centrally managed. The company operates both in the UK and internationally. ndependent Mediators (IM) was formally launched in June 2007. We operate as a mediation chambers. All the mediators work full time as mediators and are only appointed through Independent Mediators. Our chambers consists of Charles Dodson, Phillip HowellRichardson, Kate Jackson, Michel Kallipetis QC, Jonathan LloydJones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor. When forming IM our aim was to make the process of instructing mediators simpler and to recognise and to meet the requirements of instructing solicitors and individuals. We are very conscious of the need to provide a competitive service and are recognised as offering exceptional value for money. We make the country’s top mediators available at affordable prices for any size dispute. We do not charge any admin fees to the parties. Only mediators recognised by the leading directories as being in the top tiers of UK mediators are invited to become members of Independent Mediators. We are unashamedly “elitist” offering some of the best mediators in Europe. We will never offer an inappropriate mediator for any instruction. The concept has worked extraordinarily well. Instructing solicitor’s feedback shows that not only was our business model correct but that the quality of the mediators’ performance and the administrative service that supports them has probably exceeded expectations. The number of mediations per year has consistently increased since our launch and now numbers 500+ per year. Since we launched the group we have received in excess of 4500 appointments. The parties to cases IM members mediate range from litigants in person to multinational companies; with sums claimed from £25k to multi billion. Appointments are received from a broad range of sources including, top ten City firms, international law firms, regional and high street practices, increasingly from in-house lawyers, government departments, security services, local authorities, police forces and litigants in person. The subjects mediated to name a few categories cover all aspects of commercial/financial services/banking/employment/ professional negligence/regulatory/class actions and insurance disputes.

Our appointments are increasingly from international sources with the number growing each year. Instructions from lawyers, clients and governments along with training and consultancy means our mediators have worked with over 85 countries worldwide. Following the implementation of the European Mediation Directive we took the decision to recognise the mediators experience and to offer our services to a wider audience who may wish to take advantage of the combined expertise in the growing areas of International/Cross Border/Multiparty disputes. Our international presence has been identified by the international directory Who’s Who Legal: Commercial Mediation. They acknowledge IM as a leading mediation chambers recognised for the excellence of their specialists.

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Families at War By Roger Levitt

What brings families to fight and fall out over property, wills, probate or money – or all of them? On a simple level it might appear simple for people to disagree over any of the above. We all have our differences of opinion, even within our families. But when you look closer it’s harder to understand how or why families can destroy themselves by these differences of opinion. Sadly the roots of the dispute can often go back many years, even to childhood, between siblings or parents at war. Sometimes the participants can’t even remember why they’ve fallen out it was so long ago. However the end result is the same: deadlock bitterness and stalemate.

What can be done?

hard work on all sides. As mediation is a voluntary process it sometimes takes parties many months before they agree to the mediation process. In my experience, where parties are in separate rooms at the start of the day, because they don’t feel comfortable being together, it often happens that as the day progresses and there is movement towards settlement, the parties come together naturally, producing some extraordinary results, and even the start of a possible family reconciliation

A family intermediary There is often a family member who hasn’t been embroiled in the dispute who can help the mediator by being an informal go between. It is helpful for that person to attend the mediation to give both sides peace of mind.

The first and most important thing is to find a way to bring the warring parties together, either in the same room or at least in the same building. Often easier said than done. It is common for parties to refuse to be in the same room as each other. Also, human nature often hopes a problem will go away and then when it really blows up it’s often too late. But the earlier the issues can be identified with the help of a neutral, and then dealt with- the better.

Shuttle mediation

Bringing the family together

Sometimes it’s unrealistic to expect a dispute that has been running for years, to be settled in a day. I stay in touch for 7 days after the mediation (or longer if requested) if a settlement hasn’t been reached on the day. Often when the dust has settled negotiations can continue and the dispute is resolved in the days or weeks ahead.

If the family can be encouraged to get together with an experienced mediator, even if in the same building if not necessarily in the same rooms to start, there is a better chance that a resolution can be reached, with goodwill and

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It is then common for the mediator to shuttle between the parties, until ideally a resolution is reached. A detailed examination of the negotiation and settlement process is beyond the scope of this article

Staying in Touch if no settlement is reached on the day

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The Psychology of Uncompromising Behaviour Paul Randolph asks if 2017 was all about uncompromising decisions

hat do Brexiteers, Trump supporters, and Islamic fundamentalists all have in common? Throughout the latter half of 2016, many of us stood scratching our heads in bewilderment at the astonishing train of political and social events that unfurled. Roald Dahl’s ‘Tales of the Unexpected’ have been firmly put in the shade by the increasingly surreal nature of reality.

A basket of 'deplorables?’ How could so many apparently sane and sensible people support Trump for President when on any objective basis he appears so comprehensively unsuited to the office? How did Brexiteers persuade otherwise level-headed and rational individuals to vote for an outcome that countless others regard as lemming-like economic and political suicide? And how do Islamic fundamentalists continue to transform scores of young people into focused and committed jihadists, willing to die for their interpretation of a religious cause – especially when so many of them seem aimless and faithless? These accomplishments do not arise out of fleeting moments of madness. They are symptomatic of an enduring process. Brexiteers continue to believe that leaving the EU is the better option, in the face of an abundance of evidence to the contrary. The experts – bankers, economists, academics and social scientists - who supported the ‘Remain’ campaign have been ignored and dismissed as irrelevant by Brexiteers who can’t understand why they ‘didn’t get it.’ During the US Presidential election Trump supporters flocked behind him, despite ever-increasing revelations about his past and present moral and ethical bankruptcy. His previous business dealings, the demise of his casino empire, conduct towards employees, contractors and investors, dubious tax affairs, alleged predatory behaviour towards women, mocking of the disabled, and his bizarre views on Muslims, race, foreigners and Putin have been incessantly aired on Twitter. Yet none of these shortcomings were perceived as being sufficient to disqualify him from a position as ‘Leader of the Western World.’ Indeed, they seemed merely to strengthen his position. And young radicalised jihadists persisted in queuing up to die, in the face of widely-broadcast confirmation that these atrocities serve only to unite people, to intensify their defiance, and strengthen their resolve to resist such fundamentalism. So what is it that each of these groups have or do that

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enables them to achieve seemingly miraculous results in the face of apparently overwhelming odds?

Feeling good about ourselves matters One clue is that they each tap deeply into one of the most essential emotions that characterises human existence - our self-esteem. It is well established that we all share a need to feel good about ourselves. We harbour an overwhelming desire to think well of our actions and decisions, and equally we crave approval. Even when we don’t care about the opinions of others, we still have a strong aspiration to be true to ourselves. This need for self-approval and the endorsement of others is a powerful motivating factor in all human transactions and governs many of our daily decisions and activities. We are all influenced by our egos and the widespread effect this has upon human behaviour may be underestimated. Self-esteem is not static. It can go up and descend to great depths very rapidly. As a result we spend considerable time, effort and energy on a daily basis constantly building up and protecting our self-image. Deprivation is a potent factor in self-esteem. When people have no jobs, no reasonable standard of living and little prospects of achieving one in the foreseeable future; when they feel ignored, forgotten and ‘left behind;’ when they feel demeaned and humiliated – this is when self-esteem hits rock bottom. So when a promise is made that they will be able to feel good about themselves again – or about their country - they are ready to bite hand off anyone who says they can deliver. Low self-esteem is often made worse by a perception of unfairness. When others are seen enjoying the benefits that many do not have, especially when those benefits are believed to have been secured through corruption, dishonesty, exploitation and manipulation, this is when the sense of degradation becomes acute. So when there is an offer to “drain the swamp,” banish corruption, eliminate the economic divide and restore equality, people are ready to follow in whichever direction they are lead. But it is not only the deprived who experience low selfesteem. The wealthy and powerful are also susceptible to attacks upon their own image. Losing control equates to a loss of power, and relinquishing control over issues upon which we place important value is equally demeaning. To lose control over laws, regulations, borders, immigration and over other vital economic and social policies can be experienced as wounding and shameful to national pride. So when assurances are given that control will be returned and all power restored, or to “Make America great again,” many will eagerly place blind trust in such pledges. The young and isolated, when struggling with difficult social issues, harbour a sense of rejection, of being discarded by society and not belonging anywhere. These makes the suitably open to radicalisation. The opportunity to be welcomed into a ‘brotherhood,’ with the guarantee of finding a new meaning in life and being part of an ‘epic battle’ offers a beguiling attraction that is potently effective in reinstating lost self-esteem. The formidable effect that self-esteem has upon our behaviour has been reinforced by scientific evidence. A study by neuroscientists in Italy[1] demonstrates how the

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‘social pain’ of humiliation or rejection activates the same circuits of the brain as physical pain. The low self-esteem of those who see themselves as social and economic exiles is interpreted by the brain in such a way that it actually ‘hurts.’ It is little wonder that so many will eagerly reach for the pain relief temptingly promised by others.

Self-esteem will dictate Brexit If self-esteem played a significant part in the political environment in the latter half of 2016, it is reasonable to assume that it will continue to do so throughout 2017, and particularly in the Brexit and other international trade negotiations. Negotiating teams in each case will consist of officials from a variety of government departments and agencies, with a supporting cast of advisers and experts, all of which offers a fertile environment for fuelling self-esteem. Promotion, career paths, and all forms of upward mobility are dependent upon catching the eye or securing the endorsement of another, and so the need for approval in political hierarchies is absolute. It would be comforting to believe that the numerous and diverse issues that need to be negotiated for Brexit will be considered without emotion and won purely on hard, rational, economic, fiscal and social grounds. But every negotiator may well have their own agenda, and there will be widely differing priorities for each of them. Will a hard or a soft Brexit bring greater approval from the electorate? Will securing access to the single European market be viewed as a dominant issue? Is a deal on immigration likely to attract more votes than an agreement on fishing policies or continued EU sanctions on Russia? Regardless of the personal integrity of each member of the negotiating team, there is a danger in how these issues will be promoted, argued and resolved. Matters are likely to be governed as much by individual emotions and egos as by the uncontaminated logic of monetary arguments.

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Similarly if the negotiators are able to adopt a mediator’s empathic approach it could enable both sides to feel more properly ‘heard’ when dialogue becomes difficult, unconstructive or seemingly impossible. Alternatively, where commercial relationships need to be terminated, a mediator-like approach can achieve acceptable results that minimise acrimony and encourage greater cordiality in the parting of the ways. Most importantly, the psychologically-informed negotiator will recognise and understand the powerful influence of self-esteem that runs through all negotiations. By utilizing such understanding, knots can be untied, obstacles overcome, and the route to an agreement becomes achievable.

References [1] “Empathy for Social Exclusion Involves the Sensory-Discriminative Component of Pain: A Within-Subject fMRI Study” from the International School for Advanced Studies (SISSA) of Trieste: published in Social Cognitive and Affective Neuroscience (February 2014).

Changing the way we respond to Conflict Mediation

Training

Coaching

Untying the knots of negotiation It is widely accepted that mediators can facilitate resolutions and help find common ground where negotiations have failed. Mediation skills aim to assist in bringing vastly opposing views closer together. Both sides in the Brexit negotiations may start poles apart. The negotiators carry with them the mutual distrust of their respective governments and the scepticism and cynicism of millions of constituents. The negotiating teams will find it difficult to ignore the constant stream of onesided and negative partisan views. The level of ambiguity surrounding negotiations and desire to achieve certainty is likely to lead to a greater tendency for drawing red lines and setting strict boundaries. Mediators are skilled in addressing the interests of all parties in such a way to preserve ongoing working relationships, while avoiding win or lose decisionmaking processes. If these techniques are deployed by negotiators, the two sides will be able to move away from ‘positional bargaining,’ and edge closer towards principled and interest-based negotiations.

IGRC provides high quality, sensitive, professional and effective workplace mediation, conflict coaching and training, tailored to meet your needs. Find out how we can help: t: +44 (0)7966 688 850 e: irene@igresolutions.com w: www.igresolutions.com

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Learning from environmental disputes By Ned Collier on 29/03/2018 ediation for the resolution of conflict can be best illustrated in cases where a positive outcome is seemingly intractable. However, mediation, effective dialogue and progressive and collaborative negotiation can break deadlock. Cases that involve environmental disputes are good examples of this. In 2014, CEDR Founder President Dr Karl Mackie CBE mediated a case under the Organisation for Economic Co-Operation and Development (OECD) Guidelines for Multinational Enterprises – via the National Contact Point (NCP) of the UK Dept. of Business & Skills (BIS) – between an oil and gas exploration company (’the Company’) and a leading environmental pressure group (‘NGO’). The case concerned oil exploration rights in the Virunga National Park in the Democratic Republic of Congo (DRC), the first UNESCO World Heritage site. The Company believed that they were assisting the government in understanding their natural resources and had the right to do so through licensing and monitoring under scientific study exemptions. Moreover, they stated that Uganda (country bordering the national park) was able to exploit their reserves within their own territory. The NGO countered that all such activities were forbidden in UNESCO World Heritage sites under International Law and furthermore breached environmental sustainability and stakeholder engagement guidelines and human rights. The Company replied that they were acting legally, through the monitoring of their activity by the park management and given other examples such as the fact that the UK had, at the time, allowed permission for oil exploration on the Dorset Jurassic coast, another World Heritage site. Despite a major media campaign by the NGO (where the Company stated false claims were made), both parties were brought together for fair and frank discussions, and subsequently, progress was made towards a more consultative process. Dialogue and collaboration across all areas of concern resulted in swift progress and although there were sticking points, a settlement was reached. The settlement resulted in the Company ceasing exploration and withdrawal from the area as the hydrocarbon extraction was incompatible with World Heritage status, yet seismic surveys by themselves were not incompatible. This case illustrates that, by encouraging parties to liaise directly and above all collaboratively on their interests and the detailed issues affecting them including documentation (eg. public statements), a resolution could be reached far more quickly. Dr Mackie says: “The advantage of mediation was to enable structured dialogue between the Company and the NGOs, such dialogue in cases like this allows for companies to consider changes in policy such as publishing human rights statements on their website or using their influence more with local politicians in developing economies.” In a similar example, and again for the UK Dept. of Business & Skills (BIS) and OECD, Dr Mackie mediated between an NGO and a consortium of oil and gas multinationals in Kazakhstan regarding the relocation of households on/near their oilfield. Dr Mackie facilitated dialogue between all parties and managed to secure a meeting with all representatives from both sides, despite the challenges of significant international travel for many of the

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attendees. As a result of opening up lines of communication between parties, dialogue was made possible and steps were made towards reconciliation and the possibility of a settlement. However, in this instance, the mediation was not successful as a negotiated settlement was not achieved within the timeframe, but significant progress was made and a satisfactory outcome was achieved some years later. What this Kazakhstan case illustrates is that even when the outcome wasn’t successful (within the original timeframe), the processes involved in the mediation played a pivotal role in an outcome for all parties years later. Further information about this case can be read here. The use of mediation in environmental disputes is not unprecedented, with one of the earliest cases relating to a dispute regarding a dam project on the Snoqualmie River in the US in 1973. Since then, mediation as a mechanism for dispute resolution for environmental disputes has been used more widely and has found further support in treaties and international charters such as the United Nation Convention On Laws Of The Sea (UNCLOS), Vienna Convention for Protection of the Ozone Layer and the WTO Dispute Settlement Regime [1] to name a few. Furthermore, there has been an increased appetite by jurisdictions around the globe to implement new legislation to employ mediation as a mechanism for environmental disputes. The use of mediation in these circumstances, while not the only mechanism, is certainly attractive not least because litigation will likely leave at least one side empty-handed and invariably increase the likelihood of further discord. As the world heads towards the climate cliff edge, driving more severe storms, migration, poverty and hunger, environmental disputes will increase and invariably find their way into courts around the world. But what we see in these cases is that mediation and the adoption of key mediation techniques and effective dialogue can, through the engagement of vital stakeholders, provide a costeffective, mutually beneficial and enduring resolution. Read my next blog in June when I will be writing about the role of mediation in climate change disputes, linked to discussions taking place on this subject at the CPR European Congress in London at the end of May.

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Executive Mediation: How to Solve Your Clients’ No 1 Headache – and Steal a March on the Competition By Liz Rivers “The CFO and the Director of Operations are at loggerheads – they can’t agree on anything. The problem is that both of them are very valuable to the organisation and we don’t want to lose either of them. Can you help?” This scenario plays out in boardrooms up and down the country. If you’re an employment lawyer, or have an employment team in your firm, what’s your response? Is it: A. Suggest the CEO “bang heads together” and sort it out. (Bad news - they tried that already); B. Tell them to choose which director they are willing to exit from the business and advise them on how to do it safely. Some business for you but your client loses a key director who’ll be hard to replace; or C. Suggest they try Executive Mediation? Executive Mediation is workplace mediation targeting at Board and senior leadership level. Fast, skilful and confidential, it gives senior leaders who are at loggerheads a chance to take their conversation “offline”, work out what the real issue is and get their working relationship back on track. Rather than focusing on negotiating the terms of an exit, it catches a working relationship when it still has a chance of being saved - think couples therapy rather than divorce mediation. Conflict that has reached destructive levels is brought back to the “healthy challenge” zone; relationships between antagonists are improved, and - most importantly - their colleagues are able to breathe a huge sigh of relief and get back to business. The smart employment lawyer will know about Executive Mediation, exactly when it’s the right option to suggest, and which mediators to recommend. You will solve your client’s No 1 headache and the goodwill you generate will be enormous. And you’re proving beyond a shadow of a doubt you have their best interests at heart. What do users of Executive Mediation say? Jane, a director in a professional body who took part in an Executive Mediation gave me this feedback afterwards: “You inspired me to take a very different, more positive and less rigid approach in relation to my views and gave excellent guidance on how to engage with my colleague and what to focus on.” Jim, an HR director who brought me in to mediate a board dispute said: “Everyone is delighted with the outcome of the mediation and it has had a positive impact on the whole board. The atmosphere in meetings is much better and the whole organisation appears much calmer, despite how busy we have been.” So, if you want your clients to know that you can help them to pre-empt Board conflicts early, make sure you’re up to speed with Executive Mediation.

Liz Rivers is a specialist in Executive Mediation. Formerly a commercial lawyer in the City with global law firm Eversheds Sutherland, she has over 30 years’ commercial experience. Also an executive coach and psychotherapist, she is highly skilled in both the commercial and psychological aspects of organisational conflict. Liz is recommended as a top mediator in Chambers & Partners and The Legal 500.

In Place of Strife has a dedicated panel of specialists in Executive Mediation: David Evans, Liz Rivers and Felicity Steadman. They each have over 30 years’ commercial experience at board level and can be appointed at www.mediate.co.uk

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Big Projects, Big Disputes – Bring in the Mediators By Danny McFadden on 27/04/2018 countries across 4 continents. 65% of the world’s population. 1/3 of Global GDP. 4 – 8 trillion USD overall investment. These are just a handful of the eye-watering numbers associated with one of the largest infrastructure and investment projects in history – China’s One Belt One Road (OBOR) Initiative. Coined as the modern day silk road, this project seeks to build a network of roads, railroads, pipelines, powergrids, shipping lanes and economic corridors connecting over 70 countries with a view to boosting trade and bolstering cultural exchanges. To support this gargantuan project, China has set up several financial mechanisms, funded by its foreign-exchange reserves. A 40 billion USD Silk Road Infrastructure Fund has been established to finance the project in addition to the Asian International Infrastructure Bank (AIIB) as a new Multilateral Development Bank (MDB). This bank will complement and cooperate with existing MDBs to support

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infrastructure needs in Asia. Change and development in new areas can always come with the risk of potential conflict – what is important is to have dependable mechanisms to manage difficulties it they arise.

Mediation in Large Scale Infrastructure Projects Mediation is a proven dispute resolution tool for disputes involving vast sums of money, multiple and diverse stakeholders and complex, legal, commercial and personal issues. The value of mediation, in addition to its time and cost efficiency, is its flexibility and adaptability. It can be used as a standalone process or can form part of a stepped dispute resolution procedure, proceeding bilateral negotiations and preceding arbitration and litigation. Also, when faced with large, multi-party, complex cases, a mediator can also act as a facilitator of early-negotiations between parties allowing for the exchange and management of documents, narrowing and

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understanding of issues and constructive engagement before progressing to mediation. Furthermore, infrastructure projects invariably have high overheads and running costs. Disputes often bring progress to a halt and divert critical management time and financial resources. Expedited resolution is in everyone’s interest, to reduce unnecessary costs and ensure a project isn’t derailed by endless and unresolved disagreement. Such projects may also require the preservation of an existing supplier arrangement. Rather than strain that relationship before an arbitral tribunal or court, mediation offers a much more amicable platform for dialogue, the lasting resolution of the dispute and a focus on moving forward. Compared with arbitration and litigation, mediation gives a voice to commercial and personal, as well as legal issues.

Mediation and the OBOR The OBOR will undoubtedly encounter conflict along the way and as such, Asian ADR bodies and mediators have been actively seeking to get involved with the project and to provide dispute resolution services where possible. Mediation is being enshrined as a dispute resolution mechanism by the AIIB as part of its complaints system for those adversely affected by OBOR activities. In 2018, China announced that it will establish ‘Belt and

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Road Courts’ to handle disputes arising out of the OBOR. The courts, which will be based in Beijing, Xi’an and Shenzhen, have been established under the authority of the Supreme People’s Court of China. The memorandum of understanding, signed with over 70 countries does not specifically refer to mediation, but rather refers to “friendly consultations”. To what extent this will include mediation is not as yet clear. Since 2007, CEDR has had a close relationship with China’s foremost mediation organisation the CCPIT Mediation Centre which has 47 offices in China and has regularly trained its members since then. The CCPIT is currently at the forefront of discussion with the Chinese government as to how best to include mediation in the framework of OBOR dispute resolution. Mediation will form a part of the OBOR dispute resolution system in some form, with regional hubs for handling cases, but, apart from Greater China where Hong Kong is already taking a leading role, it is still too early to see a comprehensive plan for mediation in the scheme of things. CEDR, building on its work in the Asian region over many years is confident that it will continue to support and work with the major institutions throughout the region on this exciting and challenging initiative.

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What is Total Conflict Management? By David Liddle, CEO of The TCM Group What is Total Conflict Management

An evidence based approach

Total Conflict Management or TCM® is a hybrid of Total Quality Management (TQM) and Integrated Conflict Management Systems (ICMS). The objective of TCM® is to embed collaborative, constructive and compassionate problem solving at a systemic level within organisations. It is about promoting quality conversations and reducing the negative impact of dysfunctional conflicts. TCM® goes far beyond simply mediating in disputes. TCM® underpins leadership, management and human resources. TCM® transforms dysfunctional conflicts into positive dialogue which can underpin growth, add value and drive competitive advantage. Organisations including Tesco, Royal Mail, Aviva, HSBC, TSB, BA, Virgin Atlantic, Lloyds Bank, DWP, Capgemini, Network Rail, London Ambulance Service, The Metropolitan Police, Transport for London, HMRC and numerous NHS Trust, councils, universities and police forces have adopted the TCM® System. The benefits that unify these many and varied organisations is that they are now reporting a happier, healthier and more harmonious workplace. “Modern HR and employee relations should be moving towards thinking about the root causes of issues; identifying what steps can be done to prevent conflicts; and helping our managers to deal with issues at a much earlier stage.” Pete Hodgson, Head of Employee Relations at Tesco.

Organisations adopting the TCM® System gather quantitative and qualitative data as evidence to underpin their transformation. The data is then used to target resources and to engage a wide range of stakeholders into the design of the TCM® System.

Values It all starts with the organisations values. The values are a golden thread upon which every other part of the TCM® system is attached. TCM® transforms values from nice words on a lobby wall into a living, breathing and very real part of employee and customer experience.

Creating a strategic narrative Unresolved conflict presents a significant strategic risk to any business: money, time, productivity, reputation and competitive advantage. In my new book, Managing Conflict (Kogan Page/ CIPD), I identified a lack of a conflict management strategy as the number one cause of dysfunctional conflict. Boards require clearly presented facts and evidence to help them make their strategic decisions.

Creating people centred, values based HR Policies The traditional suite of HR rules and policies are problematic when it comes to managing conflict. I will focus on the grievance, bullying and harassment procedures. I call these the GBH procedures because much like a drunken brawl in a town centre on a Friday night, these procedures do commit Grievous Bodily Harm on our employees. In fact, they are worse, because the GBH procedures pretend to be caring, supportive and compassionate. The reality is that the GBH procedures are pernicious, divisive and damaging. They perpetuate a blame and claim culture. GBH procedures reinforce the victim/offender paradigm, are reductive and they infantilise the workforce. There can only be one winner from such an approach - and it’s not the business nor its people. Organisations are increasingly rejecting the tired GBH procedures in favour or a single Resolution Policy, and so could you.

Management and leadership competence TCM® is about aligning the behaviours of leaders and managers with the values of the organisation. Emotional intelligence, principled negotiation, compassion, mentoring, coaching and of course conflict competence all feature in the TCM® management competency framework. This is not the soft option, these are tough management skills.

Integrating internal and external mediation Mediation is a powerful way to resolve a dispute. In fact, mediation is the most effective of all of the dispute resolution systems. However, it is often underused and widely misunderstood. By integrating mediation as part of a wider TCM® System, organisations can make mediation mainstream and ensure that it is used proactively.

Restorative justice (RJ) in harassment, discrimination and misconduct In some cases of harassment or discrimination, it is preferable to allow the parties to enter into dialogue as an alternative to a formal process or once formal processes have been concluded.

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RJ is a truly inspiring method for allowing the 2 parties to examine the nature of the behaviour and its impact. It gives a voice to the complainant and allows the subject to understand the impact of their behaviour directly form the person affected. RJ is similar to mediation but is undertaken by specially trained facilitators.

Customer complaints mediation More and more organisations are placing open and transparent dialogue at the heart of their customer experience strategy. Mediation plays a pivotal part in achieving this. For instance, HMRC have adopted mediation to tackle tax disputes and many NHS trusts are embedding mediation as part of their patient complaints processes.

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Conclusion Embedding a TCM® System is not for the faint of heart. If your organisation benefits from the status quo then it is not for you However, organisations including Aviva, Tesco and Royal Mail are recognising that a TCM® System is a powerful way of creating a happier, healthier and more harmonious workplace culture. Surely that’s got to be good for business.

David Liddle is CEO of The TCM Group and is author is a ground breaking new text Managing Conflict published by Kogan Page/ CIPD (2017)

www.thetcmgroup.com

Continuous monitoring and evaluation The TCM® System requires ongoing analysis and evaluation to ensure that it is working effectively and to assess its impact. Ongoing monitoring and evaluation also ensures that the cost benefit is being measured and can be reported to board and senior management teams.

An overview of TCM®

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First rule of fight club - don’t talk about fight club! By Irene Grindell

irst rule of Conflict Resolution is the exact opposite. Dialogue is the way forward. Conflict Coaching encourages people to get out of their own way and find solutions that get their needs met, by using tried and tested techniques. Sounds simple? After 19 years experience of dealing with conflicting parties in a thousand and one situations, some more complex than others and some just downright messy, I learnt a few things. I have created a process that is simple but powerful helping people to take responsibility for their issues and monitor their moods through new found understanding and self awareness. This leads to folk gaining control of their thoughts and feelings rather than being controlled by them. As we become more emotionally intelligent and literate, we can start to recognise that our changed behaviour impacts on others and by noticing the difference we continue to develop our EQ and often start to support others to manage their thoughts and feelings which ultimately leads to better relationships all round. I love watching people letting go of their stress, finding a much more relaxed state and feeling more in control. Teaching people about resiliency and the ability to keep damaging emotions and beliefs under control is the strength of coaching.

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The big six blocks • • • • • •

Resistance/reluctance or “Buy in” Fear Lack of self determination Saturation of the problem, feeling overwhelmed by the conflict with no energy, drive or motivation Belief that the other is doing it on purpose, so taking things personal Unwilling or unresponsive to engage in any solution

The answer – empathy, rapport, understanding and compassion. Listening with a view to connecting, sharing exercises with an open mind and the ability to reframe tragic expressions of unmet needs into goals. I have been privileged to watch profound transformation time and again where a crying, bewildered, angry, resentful or bitter person suddenly gets that lightbulb moment and everything changes in a heartbeat.

To contact Irene please email: Irene@igresolutions.com

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Free Conflict Management Diagnostic TCM is offering a free onsite conflict management diagnostic to organisations, big and small, to help them to evaluate the causes, the costs and the consequences of conflict. We will then align quantitative data with qualitative data to create your unique Conflict Profile Report™. We will provide a verbal report and overview of what is working and what challenges you are facing to key HR, managers and unions. A written Conflict Profile Report™ is available on request for a small fee. The Conflict Profile Report™ will assist you to decide on the most appropriate conflict management strategy for your organisation. For more details and to set up your fee conflict management diagnostic, please contact info@thetcmgroup.com or call the TCM Conflict Management hotline on 0800 294 97 87 and quote: UK Mediation Journal TCM is also available to design and deliver more detailed audits and impact assessments into areas such as workplace bullying , sexual harassment and discrimination. BOOK NOW

31 UK Mediation Journal, Issue 7

TCM Group

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MEDIATION PROVIDERS: ADR-ODR INTERNATIONAL BRENDAN SCHUTTE CEDR CONSENCIO GARDEN COURT MEDIATION IN PLACE OF STRIFE

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IRENE GRINDELL RESOLUTIONS CONSULTAN CY KINGSWAY LAW ROGER LEVITT SHERIDAN RESOLUTIONS LTD STILL HR THE TCM GROUP

INDEPENDENT MEDIATORS

ADR-ODR INTERNATIONAL LTD t: +44 (0)20 3488 1979 e: info@adrodrinternational.com w: www.adrodrinternational.com We have a panel of internationally distinguished mediators who cover over 10 countries, speak over 15 languages and cover a huge range of specialisms. To join our panel, receive exclusive discounts and have your profile featured on our website, email info@adrodrinternational. com

BRENDAN SCHUTTE t: +353 (0)8 6875 8471 e: brendan@brendanschutte.com w: www.brendanschutte.com Working across the UK and Ireland, Brendan provides a professional mediation service, including 2-party, complex, multi-party and team mediation. In addition he provides a thorough, swift and effective investigation service, as well as independent review and evaluation, facilitation and coaching. Setting up an internal scheme? Let Brendan assist you with a customised solution including policies, job descriptions, interviews, training and information, and ongoing evaluation, support and advice. How may I help with your people management needs?

CEDR t: +44 (0)20 7536 6060 e: adr@cedr.com w: www.cedr.com Europe’s largest independent commercial and workplace dispute resolution provider: CEDR has worked with over 100,000 parties in commercial disputes and helped resolve over 300,000 consumer complaints across 30 sectors. A select few of the individuals CEDR trains progress to join the CEDR Mediation Panel, which currently comprises 200 mediators speaking 15 different languages.

CONSENSIO t: +44 (0)20 7831 0254 e: hannah.king@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 30 Niton Street, London, SW6 6NJ Contact: Hannah King Consensio is a leading workplace mediation provider, helping organisations to manage workplace conflict. Our services include: 1) mediation and conflict resolution training ranging from taster events to accredited training, 2) external mediation services for two-party and team disputes, 3) conflict coaching and 4) consultancy services to transform organisational responses to conflict.

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GARDEN COURT MEDIATION t: +44 (0)20 7993 7600 e: mediationclerks@gclaw.co.uk w: gardencourtmediation.co.uk a: 57-60 Lincoln’s Inn Fields, London WC2A 3LJ Contact: Lavinia Shaw-Brown We offer a flexible, high-quality mediation service from the initial inquiry through to facilitating agreement. We have a team of experienced, professional mediators with the interpersonal skills to suit all civil, commercial, workplace and family disputes. Our aim is to help you find a resolution to the dispute quickly and effectively.

IN PLACE OF STRIFE t: +44 (0)333 014 4575 e: info@mediate.co.uk w: www.mediate.co.uk a: International Dispute Resolution Centre, 70 Fleet Street, London EC4Y 1EU Contact: Joanne Claypole Leading UK and International Mediation Chambers established in 1995. Handling civil, commercial, family, workplace and employment disputes. Our mediators have, between them, mediated thousands of disputes and many of our members are recognised as expert mediators by the legal directories. In addition, we offer a full case administration service; from helping the parties select a mediator to arranging the date, venue and paperwork necessary to make your mediation as smooth and as successful as possible.

INDEPENDENT MEDIATORS

FIND OUT MORE ON PAGE 19

t: +44 (0)20 7127 9223 e: imoffice@independentmediators.co.uk w: www.independentmediators.co.uk Leading UK and international mediation chambers consisting of nine highly experienced mediators; Charles Dodson, Phillip Howell-Richardson, Kate Jackson, Michel Kallipetis QC, Jonathan LloydJones, Mark Lomas QC, Bill Marsh, Andrew Paton and Nicholas Pryor. Mediating commercial and civil disputes, the number of mediations per year has consistently increased and now numbers 500+ per year. Since launch in 2007 the group has received in excess of 4500 appointments.

IRENE GRINDELL RESOLUTIONS CONSULTANCY t: +44 (0)7966 688 850 e: irene@igresolutions.com w: www.igresolutions.com IGRC provides high quality, sensitive, professional and effective workplace mediation, conflict coaching and training, tailored to meet your needs. Irene has 19 years expertise working with parties in conflict which gives her insight, understanding and knowledge that enables her parties to let go of resistance and high emotions in order to find resolution. IGRC associates are specialists in the field of ADR with backgrounds in HR, Change Management and coaching. We provide a full range of services including investigations and mutual evaluations along with Team Mediation and our speciality 2 party mediations. We invite enquires from all sectors and have experience working within NHS Trusts, the banking sector and higher education as well as the public and third sectors. Fluent in Spanish, French, Portuguese and German. We provide community mediation FOC in Tower Hamlets for all residents.

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KINGSWAY LAW t: +44 (0) 7825 894 893 e: larry.george@kingswaylaw.uk w: linkedin.com/in/larry-george-b9114a46 w: P.O. Box 516, Cambridge CB1 0BD Contact: Larry George Qualified Barrister; CEDR accredited mediator, 2010. Larry has 30+ years of experience as a commercial legal adviser advising on corporate and commercial matters. He has specialised in the oil business including oil trading but also has a great deal of experience in general commercial areas including in contracts, terms of trade and related disputes. Mediation experience includes franchising, engineering contracts and professional negligence. Larry has wide international experience and is a fluent Russian speaker.

ROGER LEVITT t: +44 (0)7776 141 717 e: roger@rogerlevittmediation.co.uk w: www.rogerlevittmediation.co.uk I undertake all types of commercial mediation including: Property, Construction, Partnership, Corporate, Professional Indemnity, Insurance Financial & Wills. Member of Civil Mediation Council Registration Committee. I’m approaching 100 mediations.

SHERIDAN RESOLUTIONS LTD t: +44 (0)20 3753 5350 e: caroline@sheridanresolutions.com w: www.sheridanresolutions.com Contact: Caroline Sheridan Caroline is a leading mediator recognised in both the Chambers UK and Legal 500 directories and her company Sheridan Resolutions Ltd was this year recognised as a best practice provider of mediation and leadership development services in the Law and Justice edition of the Parliamentary Review. Chair of the CMC’s Workplace and Employment Group, Caroline is also personally in demand as an Executive Coach and Supervisor as well as running a leadership development consultancy which is ILM Approved delivering leadership and management, coaching and mentoring qualifications to levels 3, 5 and 7.

STILLHR t: +44 (0)7932 762 448 e: robert@stillhr.com w: www.stillhr.com Contact: Robert Still Qualified workplace and team mediators. Robert Still, Olaleye Oladapo and Liz Katis. Over 10 years’ experience across the UK. CMC Registered Mediation Provider 2018. Resolving individuals and team conflict.

THE TCM GROUP

organisations to improve their workplaces and working relationships’

t: +44 (0)20 7092 3186 e: david.liddle@thetcmgroup.com w: www.thetcmgroup.com TCM are a leading provider of conflict management, mediation, HR and leadership training and consultancy. We deliver tangible benefits to our customers by transforming conflict and change from a threat into an opportunity. For more details, please Read Managing Conflict (Kogan Page/ CIPD) available from https://amzn.to/2tOlIvP written by TCM’s CEO David Liddle.

35 UK Mediation Journal, Issue 7

www.stillhr.com Sponsored by: Call Robert Still: 07932 762448 UK coverage with centres in London and Yorkshire

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In the workplace, there is one mediator who vows to deliver a stronger relationship In association with:

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Be sure of a WINdsor / WINdsor outcome every time! Brendan Schutte brendan@brendanschutte.com www.brendanschutte.com 00 353 86 8758471 36 36UK Mediation Journal, Issue 7

Brendan is also Convener of the Workplace and Employment Group in ASMADR, London. www.asmadr.co.uk brendan.schutte@asmadr.co.uk Sponsored by:

Check out the JMACA article “Remarkable Reframing” on http://eprints.maynoothuniversity.ie/6257/

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MEDIATION TRAINING PROVIDERS:

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ADR-ODR INTERNATIONAL

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CONSENSIO

ADR-ODR INTERNATIONAL LTD t: +44 (0)20 3488 1979 e: info@adrodrinternational.com w: www.adrodrinternational.com All of our delegates will be trained for a dual qualification in face-to-face and online mediation. All of our training courses are tailor-made by industry experts across the Civil-Commercial, Workplace and Family mediation sectors. We also offer top up ODR courses and masterclasses. To sign up email info@adrodrinternational.com

BRENDAN SCHUTTE t: +353 (0)8 6875 8471 e: brendan@brendanschutte.com w: www.brendanschutte.com A fully accredited professional trainer and BPS certified supervisor, Brendan has trained hundreds of people across the UK, Ireland, Germany and Holland. Courses include Mediation, Investigation Skills, Managing Difficult Conversations, and Dignity at Work training. Chartered Fellow Institute of Personnel and Development. Contact Brendan now to discuss running an in-house course. “Brendan has a lovely style and is very engaging - excellent tutor, very patient.”

CEDR t: +44 (0)20 7536 6000 e: training@cedr.com w: www.cedr.com CEDR Mediator Skills and Workplace Training are five-day programmes of comprehensive tuition and participation in effective dispute resolution where participants are trained and assessed for CEDR Accreditation, internationally recognised as the standard of excellence. CEDR has accredited over 7,000 mediators in over 70 jurisdictions.

CONSENSIO t: +44 (0)20 7831 0254 e: hannah.king@consensiopartners.co.uk w: www.consensiopartners.co.uk a: 30 Niton Street, London, SW6 6NJ Contact: Hannah King Consensio is a leading workplace mediation training provider, helping organisations to manage workplace conflict. Our services include: 1) mediation and conflict management training, ranging from taster events to accredited training, 2) external mediation services for two-party and team disputes, 3) conflict coaching and 4) consultancy services to transform organisational responses to conflict.

37 UK Mediation Journal, Issue 7

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REGENT’S UNIVERSITY LONDON 5 DAY MEDIATION SKILLS COURSE t: +44 (0)20 7487 7505 e: ProfCoursesRSPP@regents.ac.uk w: www.regents.ac.uk/mediate a: Regent’s University London, Inner Circle, Regent’s Park, London, NW1 4NS Contact: Enquiries Team Study the skills for conflict resolution and become an accredited mediator with our five-day course. At Regent’s our unique psychotherapeutic method of mediation training will equip you with a framework for conflict management and resolution crucial for dealing with commercial, employment, workplace, legal, industrial and personal disputes. We focus on providing a high standard of teaching from experienced tutors delivered in a quality environment.

STILLHR t: +44 (0)7932 762 448 e: robert@stillhr.com w: www.stillhr.com Contact: Robert Still The ‘first’ accredited workplace mediation training to be established in the UK, designed by PMR Ltd and receiving high acclaim since 1996. OCN Accredited 6-day programme; delivered in-house by qualified and practicing workplace mediator, Robert Still FCIPD.

Mediation

Conflict Resolution Creating Happier Workplaces Employee Relations Mediation Facilitation Conflict Resolution Training

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organisations to improve their workplaces and working relationships’

www.stillhr.com Call Robert Still: 07932 762448 UK coverage with centres in London and Yorkshire

38 38UK Mediation Journal, Issue 7

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39 UK Mediation Journal, Issue 7

t: +44 (0)20 3693 1940 Sponsored by: 39 www.iconicmediasolutions.co.uk

RELIEVE THE PRESSURE IN YOUR ORGANISATION

The Certificate in Employment & Workplace Mediation Skills Training (THREE-DAYS) Resolving conflict in any organisation is a critical skill. Building on our internationally recognised and industry leading commercial Mediator Skills Training, CEDR’s Employment and Workplace course will provide participants with the full skill set required for the effective mediation of workplace and employment disputes.

Resolving differences at work Under the expert guidance of some of the UK’s leading mediator trainers, all experienced in commercial and specifically employment and workplace mediation, participants will learn how to: n Settle disputes and conflicts effectively - in days rather than weeks or months, saving vital management time n Add value to organisations by effective and timely management of conflicts and disputes - by finding sustainable solutions to potentially intractable problems n Manage the mediation process and facilitate constructive negotiation n Advise others on the features and uses of other effective dispute resolution techniques

Who should attend? This highly participative programme is a core management competency and forms the toolkit for: n HR Professionals n Employment Lawyers or In-house counsel n General Managers and Executives n Trade Union officials

Conversion for formal CEDR Accreditation Recognising that a number of attendees on this Employment and Workplace programme may decide either at the outset, or at a later stage, that they would like to work towards achieving Full CEDR Accreditation, we also deliver a three-day Accreditation module as a follow up to this course. Successful completion of this commercial conversion course leads to the title of CEDR Accredited Mediator.

Delivery Available as an open course throughout the year on an in-house basis n Intensive course with over 50 hours of teaching n Live demonstration of mediation process and skills n Active engagement through role play n Extensive coaching of participants n One-to-one feedback

Our clients say ... “A great introduction to mediation for those wishing to understand the process and start practicing the skills.” SENIOR MANAGER, EMPLOYEE RELATIONS HR STRATEGY & POLICY, ERNST & YOUNG LLP

“An excellent course that has provided a usable framework for use within the workplace.” HR BUSINESS PARTNER, THREE

“An excellent course with empowering faculty, very challenging but entirely worthwhile.” SOLICITOR, CROWELL & MORING

www.cedr.com If you would like to find out more or arrange a meeting to discuss your needs please contact CEDR by emailing training@cedr.com or calling +44 (0)20 7536 6000.

UK Mediation Journal Issue 7

Articles inside

Directory of Mediation & Training Providers

Big Projects, Big Disputes - Bring in the Mediators

First rule of fight club - don’t talk about fight club

What is Total Conflict Management?

Executive Mediation: How to Solve Your Clients’ No 1 Headache - and Steal a March on the Competition

The Psychology of Uncompromising Behaviour

Mediating Sexual Harassment - Really

Speaking from the Soul in Mediation

Learning from environmental disputes

Independent Mediators Limited

Mediator Research Highlights: Developing an effective personal style through reflective and reflexive learning

Workplace Mediation

About ADR-ODR International