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Making Mediation Mainstream

Making Mediation Mainstream

How do we transform mediation from a cottage industry (in the UK at least) to a service that individuals, organisations and legal advisers would consider as mainstream? This is the six-million dollar question and if it could be answered in this one interview my guest would become even more popular.

Watch this interview to hear the thoughts of one of the UK’s more experienced mediators.

By the way this is the second interview with Jane. If you missed the first make sure you check it out. Watch What To Look Out For When Appointing A Commercial Mediator

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Transcript

Full Transcript

Aled: Surely, it’s in everyone’s interest that we develop the field of mediation. Advance it, so that it becomes a mainstream service or process. And, at the same time, preserving the principles and process that make it so unique. All this and more, coming up in this second interview with my guest, Jane Player.

So, in the next part of this interview, I guess, part of it comes from some of the conversations we had as we’re walking around that beautiful lake in Windsor, Windsor Great Park, isn’t it.

Jane: Yes.

Aled: Reflecting on developing the mediation field, you know, how do we do it together, collectively, as a group of mediators? What other things are going to be important, taking it forward. How do we make it mainstream, but not at the detriment of the process, not at the expense of the process, or compromising the flexibility of the process. How do we support each other going forward?

Jane: I think there’s a real tension, tension, because when you read the papers the international papers and I’ve just been judging an IBA mediation section paper that I step, why not international mediation? What are the tensions around mediation growth? Is it unless, there is a recognised quality level, people can look to certification to be confident someone can mediate. There is an insecurity, or a worry in certain jurisdictions, because they’re very used to having a certification to recognise quality.

Aled: Yeah.

Jane: It’s difficult to grow it. But, I think at the same time, the flexibility of the mediation process needs to be, you need to give the benefit to experience mediators to know what they could try out to make something work. And, so, there is a tension between those two. And, indeed if you look at the way different jurisdictions have brought in, for example, the EU directive, and compulsory mediation being an option. That, in itself, is useful in some ways because it’s encouraging the use of mediation, but it is worrying in others because compulsory mediation to any mediator is anathema in a sense that it’s meant to be a voluntary process.

Aled: Yeah.

Jane: Maybe, a compulsory bringing someone to the table isn’t necessarily a compulsion to settle, and that’s pretty, the way that we will compromise that concept. Nevertheless, I think that we need to be able to have an environment where we share the experiences of as many mediators as we can. I think, I regret the fact that there are too many organisations running mediation provisions, because, if we don’t all work together as a user, I may miss out on getting to know somebody who could be a fabulous mediator. . .

Aled: Mm-hmm.

Jane: . . .for one of my clients. And, I do think we owe it is as a community to all know about, each other, as best we can. Share our experiences, so that we make the profession, that’s what we call it, as good as we can make it for those who want to use it. The better it is, the more it’s used, the more it will grow.

Aled: Yeah. I’m interested in, in terms of taking the field forward, in the first part of the interview I think you referred to, I couldn’t, didn’t quite catch it. But was it in life mediation or life mediation?

Jane: In life mediation. That’s the project work where you use med-, one of the things that this came out of was mediation skills are very akin to risk-management. And, when you look at the evolution of the in-house lawyer, who now is a huge and respected role, somebody who is, if they’re doing their role properly, very, very close to the business. They will say, un Fidale [sounds like 0:04:09] a French law firm has just brought out a new survey that will talk about dispute wise management. It’s all around lawyers who are close to the business so that they see issues arising before they become disputes. This is very similar. In life mediation, is around rather than mediators being passive recipients of disputes as and when they arrive. It’s using your mediation skills to help businesses to see risk and maybe, when issues are arising and stop them becoming a dispute.

Aled: Yeah.

Jane: Cutting them off at the pass, finding a more constructive solution to something that is coming up. Particularly in long-term projects. Particularly in collaborations, consortia are together on a fixed process that all have a common aim, But, somehow or other, somewhere along that project, the infrastructure project, an energy project, an IT project, a pharma project, something’s not gone quite as the parties anticipated it was going to.

Aled: Yeah.

Jane: That’s the stage where our mediation skill, I think, should be used best. Moving the skills up the food chain, towards in life, during its life, not when it’s about to conk out. And, it’s a much harder task to put something back on track when people are entrenched, lawyers are involved, accusations are being made, and relationships are really pretty sour.

Aled: Mm-hmm.

Jane: If we can use our mediation skills much earlier, to foresee it, see it happening, pick it off early, if we’re working with in-house lawyers we’re much closer to the business, so they are being asked questions at a much earlier stage. Think of how powerful our mediation skills will be and think how we can help people actually not even get themselves into a dispute in the first place. For me, that’s a real aim, for us mediators to try to work towards.

Aled: Yeah. In life mediation as opposed to in death mediation.

Jane: Yeah. Or somewhere in-between. Yeah. Absolutely.

Aled: So, I mean, who typically offers in life mediation? Where is it in its development?

Jane: Well, I think, I think, the ideas have been working in my head for a while now, I mean, there’s a couple of mediator colleagues who talked to me about it. I’m involved in doing some in-life mediation and I asked a couple of my colleagues for clauses, dispute boards, of course, have been in existence for a while now in relation to construction and infrastructure. That’s a similar, probably… Dispute boards are a board of people that are appointed for a project and are used to try to resolve disputes. This is even more flexible because this is an individual, who all the parties respect as a neutral, who, is only employed as and when you need them.

Aled: Yes.

Jane: You have to have a commitment to a project for quite a while. . .

Aled: Mm-hmm.

Jane: . . .and so, that is one of the issues. You might want to have more than one mediator, perhaps a co-mediator. . .

Aled: Yeah.

Jane: . . .To be there for you. But it has been working for a while. People like ResoLex have these kinds of ideas in terms of construction projects, and it’s all around having-, and if you think about it, and again in a cross-cultural context, in the Middle East, you’ll often have a trusted advisor. Somebody who everybody respects, who will come in and listen to the parties and help them resolve their issues in private, without loss of face. It’s something we can take from other cultures. Which, I think is really useful for the Western culture, where actually we’re much more focus on rights and obligations and shouting about whose fault it was as opposed to saying, well, as we all know, even without domestic disputes at home, it’s rarely all one person’s fault. It’s often a bit of this and a bit of that, and it not being quite as they thought it was on the ground once they got going on a project.

Aled: Mm-hmm.

Jane: If you can have a safe environment to have a conversation that won’t bite them later, it’s amazing what you can achieve on a constructive basis, which we won’t get from the exchange of lawyer letters. I say that as lawyer acting for clients. There’s a time and place for that. But, I think we’ve got to see mediation as adjunct to that, not as something that is an alternative, right at the very end when we’re looking at litigation, arbitration, or mediation.

Aled: Indeed. I mean, and you mentioned ResoLex. I interviewed Ed a while back, and they’ve developed a whole piece of software that gathers that information and serves in that way. I guess what I like about these ideas, Jane, is that it opens people’s minds and perspectives from the paradigm that mediation is one party sits at one side of the table. . .

Jane: Exactly.

Aled: . . .the other sits the other. and thinking, really more broadly thinking, really creatively. You know, one of the characteristics I imagine that make effective mediating stand out is one’s creativity and bringing that. So, how do we think about conflict and disputes differently so that we can intervene at different points or intervene in different ways? We still use our skills, behaviours, but bringing that spirit of collaboration to conversations.

Jane: Yeah. And, you know, you can look at the political scenarios, look at the Kofi Annans of this world, the Irish conflict, these were all mediated.

Aled: Mm-hmm.

Jane: And, I think that it goes back to question that you raised with me, that the tension is that you’ve got to somehow describe what is it, to encourage people to use it to enable it to grow. But, there’s an element of keeping it as flexible as it can be in its definition. So, that people don’t feel constrained by its definition. In suggesting to a mediator, how would you go about resolving this?

Aled: Mm-hmm.

Jane. Is it a question of going to the site? Is it a question of having it in a lawyer’s room? If I had it on the banks of a river would it make life easier for people to open up and discuss? Should we go to a mutual territory? I’m currently in the middle of a dispute between Nigerian government agency and another jurisdiction, which is very different. Neither wants to be in their jurisdiction, and I understand that. So, it’s finding a mutual a territory that gives people the best chance of feeling, act at their optimum of openness to explore every opportunity to find a resolution, which involves not having to take down the alternative path of having a third-party judge or a tribunal take that decision away from them. And, you talk about empowerment, talk during that transformational mediation. That’s so key. Telling the parties that they get to choose how this gets resolved is hugely empowering.

Particularly, the sophisticated clients who actually don’t much like handing it over to a lawyer, let along to a judge. If they get the ability to be able to, as they would put it, cut through the crap, and start talking business again, they, they really welcome it. I think it’s beholden on us, to give them an environment where they can at least give that a go. . .

Aled: Yes.

Jane: [inaudible 0:11:14] you’re always going to limit issues, you’re rarely going to waste time. You certainly aren’t going to waste much resource. And, if it doesn’t work, it doesn’t work, but guess what? Most often, it does.

Aled: Yes. I encounter the resistance of, oh, one thing I wanted to explore with you, the parties’ resistance to mediation, but maybe we’ll touch on that in a little bit. Often, when I’m asked to mediate, sometimes, it’s generally within organisations. Most of my mediation work is workplace mediation. When I’m talking with the referring party, yes, they’re happy to go ahead, ‘Just one thing Aled. Could we call it something else?’

Jane: Call it what you like. What you like. And, that’s why, I think, you mustn’t get hung up by its name.

Aled: Mm-hmm.

Jane: I think also, in a corporate context, is where I tend to work most, you might come across the lawyer saying ‘I find it very difficult to suggest mediation’ because more often than not, and which goes back to this idea about dispute wise management. When the dispute gets to the legal department of a corporate, it’s because the very sophisticated business parties have already tried negotiation. It’s the trying to persuade them, that what we do in mediation is different than facilitative negotiation.

Aled: Yes.

Jane: And, if you call mediation ‘negotiation with the help of third party neutral’ they will say, ‘I’m sorry, we’ve tried that already. We’ve already negotiated, the other side are completely irrational; they’re totally stubborn, they won’t do anything. You’re not going to get any further than we’ve done already.’

Aled: Yeah.

Jane: Trying to explain to them what a good neutral can bring is very difficult, because you’re effectively saying ‘You haven’t succeeded, but this might.’

Aled: Yes.

Jane: So you have to very, and also, the lawyer, has to persuade these guys to go down that route, whereas most often they’re banging their fist and saying, ‘We’ve tried that route; get on, go to the court, get an injunction, sort it all out for me.’ It’s a tough one for internal counsel and their external advisors to hold back to this and explain to them, ‘Well, would you mind giving this a go?’

Aled: Yeah

Jane: Once you’ve got the business in a room, and they see the power that they get back, and the ability for them to find a solution, they’ll do it time and time again. But, it’s getting getting them over the brink the first time and not making them think that they failed in their negotiations. It’s actually saying to them, ‘I really want to understand where you got to on those negotiations, because that’s our starting point, that’s our founding blocks.’

Aled: Yes.

Jane: It’s not to say we’ve come to a dead-end on that. Let’s build on that.

Aled: Yes.

Jane: Let’s give you back the power to find your own solution.

Aled: So, how do you help lawyers, counsel in-house, persuade the business to give mediation a go? What are the sort of things that you would say or do to influence?

Jane: Well, it is certainly that piece is around going back to what you did and building on all your good work. It’s also this piece around making sure the lawyer knows the negotiations are happening earlier. So, they aren’t called upon after negotiations have taken place. Because after the lawyers can sit with the business people and help them decide how the negotiations might take place.

Aled: Right.

Jane: And, maybe even at that stage, suggest the neutral gets involved. So it’s moving up the food curve in terms of bringing the lawyers closer to the business, and it’s also telling the business, that ‘Your hard work which you think has not come to anything, actually, is the beginnings of something that could be a solution. Don’t give up now.’

Aled: Yeah.

Jane: And, most of them don’t want to go down the litigation retort, or they think they do until they realize how long and drawn out it is, and how painful it is, and how project managers then take it off projects to get witness statements and all the rest of it and the time. Often, the business has to pay for the litigation. So it’s also a risk. Your lawyer’s going to get lawyers, rarely will a lawyer say you have more than a 70% chance of success, and that means you’ve got a 30% chance of failing.

Aled: Yeah.

Jane: So, there’s that balancing act.

Aled: But, I ask about that and how we influence business owners. Because I see there being a massive opportunity for mediators to get involved in, in that sort of mediation. But I feel that it’s down to me to be able to do that, as an individual mediator. I don’t feel I’ve got the support of an organisation, of a body, of an establishment, that’s advocating on my behalf. Is that one of the barriers of mediation going mainstream, do you think?

Jane: I think actions speak louder than words. The difficulties as mediators, is we all believe in it; we’ve done it and we’ve seen it work. You mustn’t be too evangelical. I’m very pragmatic about this.

Aled: Mm-hmm.

Jane: There will be some clients who, no matter what you say to them, aren’t going to mediate. There’s too much at stake, and they want to go to court, and they want to be able to enforce it, there’s a whole conversation about enforcing mediation settlements, particularly internationally. There’s a huge conversation to be had in the arbitration world, because if an arbitration hasn’t started, you haven’t got a dispute out of which you can ask, and you settle it through mediation rather. What you can’t then do is turn it into an arbitration award cause you have a dispute out of which you can formulate your tribunal. Will tribunals ever rubber stamp the the mediated settlement and give you an award, which is internationally enforceable?

Aled: Right.

Jane: A court will often do it, but you’d often have to start your proceedings, mediate, and get a consent award, consent judgment, so that you can then enforce it. But, that’s territorial.

Aled: Mm-hmm.

Jane: There’s a whole piece around recognising that mediation is not going to be the panacea for everything. You’ve got to be very clear about what the clients need. When you’ve got multi-million pound disputes. When, literally, they’re in the tens of millions, spending £1 million pounds is court is maybe the right thing to do.

Aled: Yeah.

Jane: When you’re talking about a £1 million dispute, where your fees in big law firms might be somewhere between half a million and a million, your cost-benefit analysis is very different.

Aled: Yeah.

Jane: So, it depends on the type of dispute, whether the mediation fits the bill or not.

Aled: Yeah.

Jane: You talk about organisations assisting you in encouraging it. What I’m really enjoying seeing now is that you have got groups like the Commercial Mediators Group which is a user group. You have got IMI, whichs all around trying to help the users as well. And you’ve got a lot of surveys now, coming out where you can see statistically, and you can show to users statistically, that mediation more often than not, succeeds.

Aled: Mm-hmm.

Jane: And, that even when it doesn’t, it saves costs, and it certainly reduces the issues at stake. All those are, empirical evidence that you can give to hard nosed businessmen that says ‘Why wouldn’t you give this a go? What’s the downside to it?’ And, more often than not when they do, they get a result.

Aled: Yes.

Jane: And the more they get a result, you’ve got, there’s a very interesting project which Don Sturrock is working on now called Protocol for Respectful Dialogue.

Aled: Okay.

Jane: That’s going to be interesting, because if corporates adopt that, that would be interesting. You’ve got protocols in the EU being signed up by all the big boys like Shell, and Nestle. So then, businesses are saying we will, [inaudible 0:18:45] did the same thing, we will look at mediation before we go down another dispute resolution route. It gives you the power to not show any weakness, but to say, ‘This is simply the way we do this in our firm’. If you talk to people like David Burt at DuPont, he will say, ‘It is something that is ingrained in the way that they look at their disputes.’ If that starts to happen, but it isn’t just us, an alone voice saying mediation works.

Aled: Yeah.

Jane: It’s a whole way of approach to dispute management, which will change. And, if you’ve got that together with in-house lawyers getting chosen for business and encourage them to think more creatively, I think we’ll see dispute management in a completely different way in ten years’ time.

Aled: Interesting that the expression dispute management, far more sexier than mediation, isn’t it?

Jane: Well, you know, I remember going to in-house counsel conference and they said that ten years ago we were called litigators, now we’re called dispute resolvers and in ten years time, they don’t even want that. They want dispute managers; they want conflict preventers.

Aled: Yes

Jane: And that’s where we’ve got to place ourselves. We’re here to try to help businesses do what they’re good at. And that’s do business. And actually, disputes get in the way of that. We need to help to manage their disputes to the best interests of everybody.

Aled: Yes.

Jane: I think that’s a role we have to think of ourselves in, in a slightly more creative way. And there’s lots and lots of skills that mediators and lawyers bring and others, not lawyers, bring to that, which, should be used for the force of good.

Aled: Yes. Re-branding I think, is, might be on the cards.

Jane: Yes.

Aled: Definitely.

Jane: [inaudible 0:20:21] what you call it, as long as it works.

Aled: Indeed. Absolutely, yes. Call it what you want. There are still people that are resistant to mediation. Tell me a bit more about the source of their resistance, Jane, from your experience.

Jane: I think it’s too trite to say lawyers are resistant to litigation because they see it as a curtailment of fees.

Aled: Mm-hmm.

Jane: I think the average good advisor, to businesses and individuals alike, recognise that they needed the best for their client. I will never forget going into court and getting a fantastic victory for a client and him turning around and saying to me, ‘Jane, thank you so much, you did a fabulous job. But, to be honest with you, I never want to want to see you again.’ Now, that is not business development. I realize that if I’d like to be able to build client relationships, I’d have to find a way where litigation, sometimes it wins, but most often it’s a painful process. So I needed to find a way in which we could develop dispute management in a more constructive way. You will get Luddites, you will get the dinosaurs, and, I am not saying that litigation or arbitration hasn’t got a very, very important role to play, because it does. And, there will be times when mediation’s not the right option, absolutely.

Aled: Yeah.

Jane: But, I think people have got to be open-minded. It’s got to be in your toolbox. You’ve got to be offer it as at least, a consideration at the outset.

Aled: Yes.

Jane: I think you will have the arrogance of the negotiators who think, I’ve tried that already; it won’t work. I think you got the thought process that it might be a sign of weakness still, which, is fading, but nevertheless, historically was thought if you suggest mediation, it’s a sign of weakness. Actually, statistics show that those mediators who make the first offer are much more likely to dictate the zone of potential settlement.

Aled: Mm-hmm.

Jane: So, that’s an interesting idea. That actually, if you take control of the resolution of the dispute by suggesting mediation and then during that mediation starting out the offer, you’re more likely to get a solution nearer where you want it to be than where the other side did.

Aled: Yeah.

Jane: So, maybe life is moving.

Aled: Maybe life is moving. You talked about that experience walking out of court over the moon, you’ve got a great result, and the client turning to you and saying ‘I never want to see you again. Great job, but I never want to see you again.’ Is that one of the moments in your career where, that you would say were turning points in your thinking, or are there others early in your career where you thought, ‘There’s got to be a better way, there’s got to be another way?’

Jane: Well, iI’m at pains to say there are clients who, litigation is part of their way of life. And, also, I worked for US Law firm and you’ve only got to look at the US litigation landscape to understand that as defendant corporates, I’m afraid it is a necessary evil that the plaintiff’s bar rest is just prolific. And, you have to recognise that you will be in court, and so there is definitely a place to play for litigators and good arbitrators. I think for me, wanting to be a creative problem-solver, I wanted to make sure that I always put to my clients a whole panoply of options that they had, for them to choose. You’ve got to remember, at the end of the day we are merely advisors to our clients. At the end of the day, it’s their problem and their solution. Now we want to best guide them to the right route, and I think the better lawyers, the ones that recognise the benefits of each type of dispute resolution method.

Aled: Yes. Okay. That’s good. Jane, you’ve been very generous with your time. I really appreciate this. I know you’re at work. What are you currently working on? Are you working on a mediation or are you working on. . .

Jane: Yeah. I’m just working on a proposal for a mediation where I’m going to be a mediator, but I’m also right in the middle of a very exciting international project where we are trying to secure assets. So, that’s something that mediation won’t be able to help us with. It’s got a role to play, but it’s not the answer to everything.

Aled: Yes. Wonderful. All right. Well listen, have a wonderful day, thank you ever so much.

Jane: Pleasure.

Aled: Jane, I know people are going to want to get in touch with you, say thank you, find out more about what you’re doing, maybe interview you for a potential mediation for the future. What’s the best way for people to reach out and say thank you to you.

Jane: It’s my pleasure. Send me an e-mail, by all means. All my details are on I-posts, they’re also on IMI, on the seat of faculties. So, you can get me a number of ways. I’m at King’s Buildings [sounds like 0:25:12] so I’m very happy to have an e-mail directed to me. I’d love the community to engage more with each other. I’ll always find time to talk about mediation.

Aled: Wonderful. Well, let me be the first to say thank you. . .

Jane: Pleasure.

Aled: . . .Thank you very much Jane Player.

Jane: Bye.

Aled: Okay. Bye.

About the mediator

Jane Player Profile Pic

Jane is a business risk adviser using her legal background to give pragmatic and commercial risk advice to her clients. She is a partner at King & Spalding and prior to that for 10 years was head of Bird & Bird's Disputes Practice internationally . Before that Jane was at DLA for 10 years of which the last 6 she was head of the London Disputes team. She has experience of running law firm group budgets, leading and managing a business sect... View Mediator