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Opinion - Paul Randolph

Brexit and the Opportunities for Mediation

Following on from CIArb’s successful Mediation Symposium 2016, Paul Randolph analyses in further detail one of the event’s most topical discussion points: the effect of Brexit on the world of mediation.

The American comic George Carlin, once said: ‘Have you ever noticed when you are driving on the freeway, that anyone who is driving slower than you is an idiot, and anyone driving faster than you is a maniac?’  Mediators will readily recognise this pattern of outlook, for those involved in ‘shuttle’ mediation are constantly treading through a world full of idiots and maniacs.

In all disputes, each party on either side of the divide will view the other as the idiot or alternatively as the maniac.  At the same time, they believe that they themselves are normal, reasonable and rational. Never has this been more apparent than in the case of a Referendum – and in particular the Referendum on whether to stay in or out of Europe.

Mediators who shuttle between rooms in a commercial dispute will be very familiar with this behaviour:  the ‘idiot’ who voted to remain sees the other side as the ‘maniac’ who voted to leave.  Both consider each other’s behaviour to be inexplicable, incomprehensible, bizarre and wholly irrational.   

A mediator’s task is to bring such diametrically opposed views closer to some common ground – to secure a perception shift in either one or both of the opposing parties.    

The change in attitude might be towards the other party, their behaviour and motivation; or towards the dispute itself, or indeed to their own conduct and outlook.

But without such a change in perception or attitude, the parties are likely to remain in their entrenched positions without any prospect of settling their dispute.

‘If you change the way you look at things, the things you look at change’ -  ‘an ancient Tao observation’ according to Wayne W. Dyer,  an American psychologist,  in A New Way of Thinking, a New Way of Being: Experiencing the Tao Te Ching (2009);  but it is also a quote sometimes attributed to Max Planck, a 20th Century German physicist.  

The shift of attitude required for consensus will be fundamental in any negotiations between the UK Brexiteers and the EU.  Securing such a shift in perception or attitude is not easy.  The negotiators on each side carry with them the mutual distrust of their constituents – and the mutual scepticism and cynicism of millions of people.  

The respective stances adopted by the negotiators will have been developed over weeks, months,  or perhaps even years;  their mind-sets will have become increasingly entrenched as they defend their views.  These views may have become even more solidified as a result of comments and briefings received from colleagues and experts, and the media.  

The entire entourage of people will in turn have based their conclusions upon a diet of one-sided and subjective views, equally emanating from partisan reporting and briefings.  At the same time, the two negotiating parties are likely to have become wholly impervious to any contrary observations and evidence presented to them. 

Most mediators will readily acknowledge that the prospects of a successful outcome to the negotiations in a mediation are vastly increased where there is mutual respect between the parties.  Without some trust and rapport between the negotiating parties, the hopes of resolution dwindle.

Between the Brexiteers and the EU, there is a vast chasm of mistrust.  Those who argued to leave the EU perceive the EU to be the font of all ills that have befallen the United Kingdom, as a result of the myriad of costs and constraints imposed, and the heavy economic, social and political regulation.  

The EU negotiators, on the other hand,  see the Brexiteers simply as bare-faced liars, who have persistently deceived the nation with a catalogue of one-sided untruths. 

What hope is there for negotiations to succeed under such circumstances?  

Are we to see both sides engaging in little other than positional and purely strategic bargaining?   Will they simply set out their respective stalls, and then, when they return home empty handed, continue to accuse each other of causing deadlock through unreasonable intransigence?  

Or could mediators be of assistance, having regard to their expertise in securing paradigm shifts in hardened attitudes in a short space of time, and within an environment of rigid and ‘sedimented’ positions?  

These issues were the focus of attention at the CIArb Mediation Symposium on 26 September, held at Norton Rose Fulbright in London.  Following a stirring keynote address by Sir Michael Briggs, the panellists for the first morning discussion applied their minds to the theme: “Brexit the Aftermath – Mediators’ Opportunities – Political and Judiciary”.    

Diana Wallis, a Member of the European Parliament from 1999 to 2012, and current member of the European Law Institute, spoke about the effects of the EU Mediation Directive, the ADR Directive, and ODR Regulation.  

She emphasised the difficulties caused by the atmosphere of uncertainty that surrounded the Brexit negotiations, but that nothing was likely to change for a while, and that mediation was in any event a necessity.   

Katie Bradford, a Dispute Resolution partner at Linklaters LLP, and Deputy Chair of the CMC introduced the themes of change and reconciliation through the personal memory of her father’s business meetings in the early 1970s:  these were conducted with German trading colleagues, moving on from the World War II and the Coventry blitz, which changed his life.

Commercial contacts, she stated, play a part in forging amicable relations - between organisations and between states. Mediation thrives in uncertainty, and in such times there would be no additional funds to support the courts.

The loss of the Mediation Directive would not undermine mediation. This was an opportunity to review and emphasise standards, so that government might be more positive in encouraging private dispute resolution schemes.  

 Sir Peter Cresswell QC, former Judge of the Commercial Court, involved in the first and pioneering Practice Direction urging litigants to consider mediation, felt that Lord Justice Briggs’ proposals for dealing with small claims offered considerable opportunities for the development of mediation post Brexit.

Although the extent of these opportunities was unclear, mediation would need the support of the judiciary. For this to happen, mediators would need to be properly trained and regulated, and conduct mediations in a principled manner, not as a horse-trade, and only when they have legal or industry expertise in the field of the dispute.

So do mediators have a role in assisting the Brexit negotiations? What could a mediator or a team of mediators do that would make any difference?  

It is respectfully suggested that mediators could help find resolutions and common ground where pure negotiations have failed.   Mediators can allow both parties to be heard in a way that might not be possible in the absence of a third party, one who is truly neutral and with no ‘axe to grind’.

They are trained to address the interests of all parties in such a way as to preserve on-going working relationships, and avoid a ‘win/lose’ decision-making process. They are skilled in moving parties away from positional bargaining whilst promoting interest-based negotiations, which prove more acceptable to all parties than simple compromise (or ‘splitting the difference’) resolutions.

Alternatively, mediators are frequently called in to oversee the termination of commercial relationships, and they aim to do so in a way that minimises acrimony and encourages greater cordiality in the parting of the ways. 

So, I suggest that we mediators stand by our phones and await the call. 

Paul Randolph is a highly experienced mediator, trainer, lecturer and author. He has considerable experience in mediating in a very wide variety of disputes, from commercial and contractual cases to family, employment and workplace disputes.