On Thursday, 6 July 2017 the CIArb London & SE Young Members Group (YMG) held a Mediation Workshop, generously hosted by CMS, London.
L to R: Tim Hardy, Amanda Lee, Phillip Howell-Richardson and Artem Doudko.
Amanda Lee, Chair of the YMG, moderated the panel of distinguished speakers: Tim Hardy FCIArb (Head of CMS’ Commercial Litigation Team in London) and Phillip Howell-Richardson FCIArb.
At the beginning of the event, Amanda Lee introduced the speakers and thanked the host and the audience for attending the workshop.
Phillip Howell-Richardson began by providing the attendees with a brief overview of mediation, after having determined the level of their experience in this matter.
Phillip explained that the purpose of mediation is ultimately to enable the parties to reach a settlement. He emphasised the fundamental features of mediation, such as exploring options, listening, working in a safe environment to reach a deal, confidentiality, privacy and a lack of formal rules. Parties must often meet face to face.
A mediator must be prepared to deal with the cultural differences of the parties during such meetings and be prepared to adapt when appropriate.
Phillip stressed that the role of the mediator is not to be a judge, but to actively listen and cooperate with the parties. A key aspect of mediation is that the parties have freedom to negotiate how they wish to engage with each other. He also advised future mediators in the audience to avoid taking adversarial positions and to try not to think in terms of rights and enforcing rights and use their real-life skills instead.
Emotions Rule, OK?
Tim Hardy opened his presentation “Emotions Rule, OK?” by underlining the importance of emotions in the negotiation process. He acknowledged that lawyers are trained to apply the law and argue their client’s case, which is based around logic and facts, rights and obligations, which are usually dealt best without emotions.
Mediation takes a much different approach, as people come together to talk directly with each other with the purpose of discussing how they arrived at a particular situation and how they can move forward.
However, even in a business situation there is always angst: emotion affects most people, regardless of whether or not they believe that they are showing emotion.
Tim presented a comprehensive overview of four different negotiation methods and attitudes to negotiation:
- How politicians negotiate: Tim illustrated how statements made by politicians are designed to affect emotions, not necessarily to reflect the objective facts. The phenomenon of “post-truth” situations has arisen in an era of “alternative facts”, where people are not persuaded by objective facts and choose to rely on emotional and personal belief, even where the objective truth proves otherwise.
- How Harvard professors negotiate: Bruce Patton, Roger Fisher, and William Ury propose negotiating in a holistic manner based on principled negotiation or "negotiation of merits". Tim admitted that while this is often a very positive method of negotiation, these principles are not always applicable, because emotions are attached to issues, which means that people often find it difficult to negotiate purely on the merits.
- How hostage negotiators negotiate: There are four different steps that specialised hostage negotiators use: active listening, empathy, rapport, influential and behavioural change. Tim illustrated how the approach of ‘one type of negotiation technique fits all’ does not apply. The FBI attempted to use the “Getting to Yes” approach, however, this method did not work. People in emotional and stressful situations such as a hostage situation, for example, will work in a different way. A key skill required when using this method of negotiation is active listening: it is a useful tool for life and mediation. It is important to let each person explain their situation.
- How boiler room salespeople negotiate: broadly, Tim compared a mediator to a salesman who tries to sell the parties the settlement of their dispute. He gave the real-life example of Jordan Belfort, the “Wolf of Wall street”. Belfort does not sell an item- he sells an idea. Tim proposed that this is a useful technique, as selling on the basis of an emotional idea is easier than selling on the basis of legal analysis, risk or costs.
Building on Tim’s presentation, Phillip spoke about his own experience with balancing emotions in a mediation.
He provided an example of where culture and emotion immensely impacted on how a mediation involving French bankers and Greek shipbuilders progressed. The Greek shipbuilder lost his temper and became very emotional and berated the bankers.
Phillip explained that he did not shut down or try to calm the Greek shipbuilder. He was of the opinion that it is not beneficial to try to conduct the mediation devoid of emotion.
As mediator, he therefore spoke to the French bankers about the Greek shipbuilder’s outburst and they eventually admitted and acknowledged the Greek shipbuilder’s strength of feeling, which assisted the parties in coming to an understanding.
The speakers shared valuable practical tips and techniques used by them during the mediation process. The audience had the opportunity to speak of their own real-life experiences regarding mediation.
One common issue many people experienced was that the parties had unrealistic expectations during the mediation: both parties did not understand the strengths and weaknesses of their case.
One of the final questions addressed to Tim and Phillip considered whether they believed that lawyers were a benefit or a hindrance to mediation. Tim spoke of a situation where the lawyers for one of the parties would not even meet the other party or enter the same room as them. This resulted in the mediation breaking down. Ultimately, the case went to trial and the parties incurred massive costs.
On the other hand, Tim was subsequently instructed again as mediator by the same lawyers, who properly engaged in discussions and ensured a positive mediation in respect of a separate dispute.
Taking the opposite approach, Phillip found that in any case there are obstacles for a number of reasons. In relation to lawyers, he often finds them to be an obstacle to a mediation, in which case it may be appropriate to find a reason to remove lawyers from the room and speak directly to the decision makers.
Amanda Lee offered a note of thanks, following which the evening concluded with a networking reception.