Steve Hancox

Here are some fun video clips and other resources relating to mediation which might be useful – or at least amusing. It’s a developing list, so do let me know if you have any other suggestions.

Mediation Clips & Links

Latest CEDR Audit (2023)

https://www.cedr.com/foundation/mediation-audit/

CEDR Model Documents

https://www.cedr.com/commercial/modelcontractclauses

CEDR Podcasts

https://podcasters.spotify.com/pod/show/betterconflicts/episodes/The-Practicalities-of-Making-a-Success-of-Mandatory-Mediation-e1qnsag

Demo of a commercial mediation (but missing a lot of the process)

https://www.youtube.com/watch?v=jNrwwtcTMMY

Brene Brown on Empathy https://www.youtube.com/watch?v=1Evwgu369Jw

Brene Brown on Blame

https://www.youtube.com/watch?v=RZWf2_2L2v8

BBC radio play on mediation – “Behind closed doors” series

https://www.bbc.co.uk/sounds/play/m000d8sm

Amy Cuddy on body language (Your body language shapes who you are) TED Talk https://www.youtube.com/watch?v=Ks-_Mh1QhMc

Mick Jagger demonstrating mediation skills

https://www.youtube.com/watch?v=JqHG1YYV5yI

Chris Moore on Problem-Solving v. Transformative Mediators

https://www.mediate.com/Mediation2020/article.cfm?zfn=mooredvd09.cfm

Julia Shaw TED talk on false memories

https://www.ted.com/talks/julia_shaw_how_false_memories_corrupt_our_identities_political_decisions_and_justice_system

William Ury TED talk on conflict

https://www.youtube.com/watch?v=lYdk1NK9-r0

Brad Heckman – fun TEDx talk about mindfulness in mediation

(He’s pinched my Columbo analogy!)

https://www.youtube.com/watch?v=UUVmPVKaJzk

Bill Wood KC on Reality Testing – Brilliant! Very funny.

https://www.youtube.com/watch?v=HpV4ga-aRl0

Bill Wood KC on the benefits of opening meetings

https://www.youtube.com/watch?v=6PC8pynimOs

The Human Factor (2019) – documentary film about middle east peace negotiations. Very interesting insights from the mediators. The full film is currently available on Netflix.

Here is a trailer.

https://www.youtube.com/watch?v=0eDVMfbZ1jU

Kluwer Mediation Blog – excellent articles on mediation from around the world.

https://mediationblog.kluwerarbitration.com

Some more BBC Radio plays about mediation.

https://www.bbc.co.uk/sounds/brand/m0023pvp

Resources (including some short videos) about mediation and mental health published by the CMC

https://civilmediation.org/conflict-and-health/

In ADS Aerospace Ltd v EMS Global Tracking Ltd[2012] EWHC 2904 (TCC) (24 October 2012) following dismissal of the Claimant’s $16m claim, the High Court has rejected an argument that the costs to be awarded to the Defendant should be reduced due to the Defendant’s refusal to mediate.

Following Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 Mr Justice Akenhead said: “The onus being on the Claimant in this case to establish that the Defendant acted unreasonably in refusing or not wishing to participate in mediation, I am not satisfied that the Defendant did act unreasonably”. His reasons for this conclusion were:

1. The Claimant had for some time been unwilling to engage in without prejudice discussions notwithstanding attempts by the Defendant to initiate these, and there was no good reason why that approach should not have been tried.
2. The Claimant had a strong view that it was entitled to substantial compensation and gave every appearance that it was simply not interested in a nuisance payment. There was “no evidence that it would have been interested, even through the good offices of the mediator, in settling its claim at that level.”
3. The suggestion of mediation came very late in the proceedings, less than 20 days before trial. Without prejudice discussions would have been quicker, cheaper and less intrusive into trial preparation than mediation which, even if it lasted only a day in itself, would have diverted solicitors and counsel by more than one day because they would have had to prepare for the mediation. Mediation would have also cost substantially more than without prejudice discussions.
4. The Defendant did not act unreasonably in believing that it had a very strong case on liability, causation and quantum. It might be said that a good mediator would have been able to “work on” the Claimant to accept what would in effect be a nuisance offer but, in the context of this case, with sensible solicitors and counsel, without prejudice discussions would probably have achieved the same result or at least got to the same stage. Mr Karlsen “clearly and very obviously wholly believed in the Claimant’s case” and would have found it very hard to accept a small six-figure sum inclusive of costs, which was all that would have been available either in mediation or in without prejudice discussions and which would have left the Claimant with nothing after costs had been paid.

The judgement is interesting, not just as an example of the application of the Halsey principles, but also because it highlights the relationship between mediation and without prejudice negotiations.

It would be a rare case that would go to mediation without negotiations having taken place first. These can range from fairly perfunctory discussions between the parties to full-blown negotiations through solicitors, but in most cases, mediation is tried when other attempts to settle have failed. What then does mediation add, beyond having someone else to (as Mr Justice Akenhead said) “work on” one or other (or both) of the parties?

At least part of the answer is in the different negotiation techniques used. 30 years ago Fisher & Ury developed the techniques of “principled negotiation” as distinct from “positional bargaining”.[1] These techniques (separating the people from the problem, focusing on the parties’ interests rather than their positions, using objective criteria and ensuring that win-win possibilities are not overlooked) are essential parts of a mediator’s toolkit, but are hardly the stuff of Part 36 offers.

I have no reason to suppose that mediation would have worked in the ADS Aerospace case, but at some stage, perhaps before the parties’ positions had become entrenched and hundreds of thousands of pounds had been spent on costs, it might have been worth a try.

[1]Fisher, R., & Ury, W. (1981). Getting to yes: Negotiating agreement without giving in. Boston: Houghton Mifflin.

About a million people took to the streets of London last Saturday to demand a second Brexit referendum and nearly 6 million people have now signed a petition asking the government to revoke Article 50 and remain in the EU. Others are demanding that effect be given to the wishes of the 17.4 million people who voted to leave the EU. Parliament is at an impasse, unable to agree a way forward.

Faced with such opposed and seemingly irreconcilable positions, what would a mediator do?

One thing which is helpful in any conflict is to take a step back and look at the underlying causes. In his ‘Circle of Conflict’ Christopher Moore grouped causes of conflict into 5 categories: Data (e.g. misinformation), Values (e.g. different world-views), Relationships (e.g. stereotyping of the other party), Structural factors (e.g. perceived power imbalances) and Interests (e.g. parties having competing demands).

It is clear that some (if not all) of these causes are underlying the current conflict over the EU. Identifying them can take some of the heat out of the situation as well as increase understanding of what is going on.

It also helps to recognise that many of the concerns about the EU which ultimately led to the Brexit vote are shared by numerous people across Europe, not just in the UK. These include issues of immigration, freedom and identity. Whatever the eventual outcome of Brexit, many of these issues will remain.

The UK will remain divided. The very expression Brexit demonstrates one aspect of that division; although it refers to British exit it actually involves the whole UK (which includes Northern Ireland), not just Britain (which doesn’t). The fact that the UK is itself a union of 4 countries with their own languages, cultures and institutions is often overlooked. What keeps this union together? Will Northern Ireland eventually depart? And Scotland? Wales has its own language, legislature (the Welsh Assembly) and there are discussions about moving to a separate legal system. There are yet further divisions within these 4 countries. Cornwall has its own language and a Cornish nationalist party (Mebyon Kernow).

Such divisions are not unique to the UK. Catalonian independence has recently hit the headlines but there are separatist / independence movements in Italy, Germany, France, Holland and many other countries across Europe.

The treaty of Maastricht established “subsidiarity” as a general principle of EU law. This means that decisions should be taken at the appropriate level. Some need to be taken at a European level, some are more appropriately dealt with by individual states. Global warming is an issue requiring international cooperation; maintaining a particular footpath may be a matter for our parish council. Am I Herefordian, English (with 25% Welsh), British or European? Maybe I am all of these. Does subsidiarity apply to my identity as well?

As a mediator I suggest there needs to be a fundamental debate about identity and devolution. At the European level, what led to such dissatisfaction in the UK? To what extent are those concerns shared by others across Europe? Is the ‘European Project’ moving too fast (or too far) for the citizens of the EU? What does it mean to be ‘British’?

Are you going to plan your family farm succession over Christmas?

Accountants Saffery Champness suggest that “farmers and landowners should take the opportunity to discuss succession planning with family members during the festive period”. According to partner Mike Harrison “Communication about such subjects is vital, and opportunities for families to get together are at a premium, so why not grasp the moment?”

At the risk of sounding like Bob Hoskins, it is certainly good to talk. If you were able to have such a conversation while maintaining the Christmas spirit of peace and goodwill to all men, that’s great. But these are deep issues, and emotions often run high. If you find it impossible to imagine having a friendly planning session over the turkey you’re not alone. Here are some comments made in response to a Farmer’s Weekly article on succession planning a couple of years ago: “My father’s a farmer. I left 35 years ago… My brother remains on the farm. My observation is that the whole farming “succession” aspect is a mess. It’s mixing up family and business…. Any level of discussion with my family are difficult.”

So what is the way forward? Here are some tips which might help:

1. Recognise that many families are struggling with similar problems. They are common issues which can be resolved.

2. Be aware of the “attribution error”. This is a psychological phenomenon which causes people to attribute bad motives to others. (If you trip over a rock I assume you are clumsy; if I trip over a rock I am likely to blame the rock.)

3. Try to externalise the problem as a common enemy which may cause all of you unhappiness. Get on the same side and try to resolve it together.

4. Think about your objectives beforehand. What do you want to achieve?

5. Don’t speak without a purpose. What points do you need to get across? Why? How will they help achieve your objective?

6. Listen to everyone else. Really listen. Reflect back to them what they have said so they know you have heard and understood. Sometimes that is all they need.

7. Know your triggers. How do you know when you are experiencing a negative emotional response? What physical signs (sweating, dry mouth, change in your voice) do you experience?

8. Go to the balcony. If things get difficult, take some time out. Make a cup of tea, go for a walk. Don’t be pressed into saying something (or even agreeing something) you may regret later.

9. Brainstorm solutions together. Make sure you have thought of all the possibilities and don’t overlook a solution which might be better for everyone.

10. To stick with the Christmas theme, here is a story from the Middle East. A man died leaving 17 camels to his 3 children. To one child he left half of the camels, to another one third, and to the last one ninth of the camels. 17 doesn’t divide into 2, 3, or 9 so the children became embroiled in a lengthy and bitter dispute. Eventually they sought the advice of a wise old woman who lived in the village. After giving the matter some thought she told them that she couldn’t give them an answer to their problem, but that they could have her camel if it would help. That meant they had 18 camels. 18 divides into 2 so one child had 9 camels, into 3 so one child had 6 camels, and into 9 so one child had 2 camels. 9 plus 6 plus 2 equals 17, so they had 1 camel left over. After some discussion they decided to give it back to the old woman. Sometimes it is difficult to solve family disputes without external help.

© 2014 Steve Hancox