Mediation, Arbitration, Negotiation, Facilitation & Training
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January 2021
November 2020
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Homo sapiens, the wise human being, must now learn from its mistakes and live up to its name. We who are alive today have the formidable task of making sure that our species does so.” David Attenborough, A Life on Our Planet
Looking back at John Sturrock’s post from February which suggested a World Mediators Alliance on Climate Change, we are struck by how it seems to address a different era. Shortly after that piece was published, the coronavirus pandemic swept across the world bringing immeasurable loss and suffering. It also brought, for many, a heightened awareness of our interconnectedness with our planet and our impact upon it. It has also changed our mediation practices in ways we could not have foreseen just a few months ago.
As a mediation community, we have often talked about how we might mediate climate change issues. Perhaps we have not given the same amount of attention to how we might reduce the environmental impact of our own behaviour and practices as mediators – and in particular to how we can individually and collectively play our part in reducing carbon emissions. The changes precipitated by the Covid pandemic have accelerated our ability to do so.
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In response to John’s open invitation back in February to create a World Mediators Alliance on Climate Change (WoMACC), members of the international mediation community came together to form a working group, with members from New Zealand, Germany, Scotland, England and Belgium. Over the past six months, the working group has explored what WoMACC could offer to encourage mediators individually and collectively to lessen their environmental footprint.
The main output is the Mediators’ Green Pledge. This has been inspired by Lucy Greenwood’s Green Pledge for arbitration and, with Lucy’s kind permission, the working group has adapted that pledge for mediation. The Pledge, which was launched on 21st October, can be read here on the special website which has been created for this purpose. Already, signatures are being added daily.
While refining the Pledge, we had many intricate and lively discussions on its wording. Does the Pledge ask too much or too little? Is it sensitive to differences across countries and cultures? Might it demonise certain aspects of mediation which many may hold dear? The Pledge is designed to be illustrative, and adaptable. While there will certainly be aspects which we have missed, the Pledge is hopefully broad enough to allow all those involved in mediation to consider how they can make changes to contribute to a greener way of mediating. The Pledge offers a foundation upon which mediators can build with their own measures tailored to their specific practices and preferences. Signatories are welcome to augment and modify the Pledge as they wish. We encourage you to sign it.
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The Pledge offers one way for us to come together to do so. As one signatory of the Pledge has said “This pledge is a commitment that has no end and whether it is formalised or just remains a contract to myself – it feels really good to have begun it. Thank you for giving me the nudge!”
We hope many others in the mediation community will feel the nudge!
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The Street of a Thousand Blossoms by Gail Tsukiyama tells the story of a family living in Tokyo over 30 years. Two brothers, one a sumo wrestler and the other a maker of Noh theater masks, are forced to adapt their lives to changes in society in order to succeed in their traditional professions. In an exchange about the past giving way to the present, one brother observes to the other that “[e]verything seems simpler from a distance.”
Both the story and sentiment could describe the present arc of online mediation. While there have long been proponents and some limited pockets of uptake, including auction disputes on eBay, remote mediation at large was born with the pandemic out of necessity. The impossibility of travel and of meeting in person has obliged many mediators to move their practices online. This trend is not likely to be immunized by a Covid-19 vaccine.
Mediators and disputing parties have come to appreciate the benefits of meeting online and are more comfortable with Microsoft Teams and Zoom. CREK and Modron Spaces offer platforms that are specifically targeted to dispute-resolution proceedings. Cross-institution collaborations, including the JIMC-SIMC Joint Covid-19 Protocol, provide for online mediation by default. These developments echo a growing appetite for the use of technology in mediation more generally reported in a study by the Singapore International Dispute Resolution Academy. As online mediation becomes more common, it is instructive to consider various ways that its use could improve mediation practice. The possibilities have particular implications for international commercial disputes.
Comparative Disadvantages
Before speculating about what might be possible, it is useful to acknowledge potential limits of mediation online. Hours staring at a screen can be tiring, and finding a convenient time to mediate may be difficult where participants are in different time zones. Establishing rapport between mediator and parties may be more difficult onscreen than face to face, though many mediators with online experience observe that this concern is overstated. There may be more environmental distractions as parties join from home or their offices, and there may be less scope for spontaneous exchanges over lunch or in a hallway that lead to breakthroughs outside the four corners of the planned process. The act of physically attending a mediation may itself favour settlement. The investment in time and resources required to be present in person may result in more meaningful engagement than where a mediation can be ended with the click of a mouse.
Comparative Advantages
Despite these potential limitations, remote mediation has the advantage of being more flexible and more cost and time efficient than mediation in person for evident reasons. Remote mediation, to borrow from Einstein, is free of fixed notions of space and time. The absence of a physical mediation space means that rooms do not need to be reserved and participants do not need to travel, lodge, and be supplied with printers and catered sandwiches. Time is elastic in the sense that mediations can be set up, adjourned, and reconvened with relative ease. The cost and time efficiencies that are inherent to mediation are thereby amplified in remote proceedings.
A consequence of the comparative flexibility of online mediation is that there is greater scope to customize mediations. A series of shorter meetings, for instance, can replace a single mediation event. Meetings can be arranged with parties individually without the need for other parties to be present at the same time. The implications of these and other variations on common practice are considered below.
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Better Mediations
The relative ease of participation in remote mediations can improve the process. Attorneys, parties, and mediators can work together in configurations that might be impossible if physical meetings were necessary. Experts can be brought into proceedings more cost effectively while remote interpretation can be integrated into online platforms using Interprefy and Kudo. Senior decision-makers who could not travel to attend a physical mediation can come and go more easily online. These factors should improve the substance of negotiations, aid risk assessment, and bring dispute managers closer to the mediation process.
Remote mediation can also be tailored to accommodate the particular needs of individual disputes more easily than mediation in person. Mediation conceived as a one- or two-day marathon can be reconceived as a series of shorter meetings over the course of a few days. Mediator Geoff Sharp, for instance, has found benefit in using a series of short private sessions online over several days leading to a joint session after issues have been explored in private and a potential path to settlement has been worked out. Physical distance may aid this process. He observes that “without having to face people across a narrow boardroom table, there is a sense of room to breathe, to reflect and to make better decisions, without (I am told in feedback) the stress of trooping in and out of the joint room, time and again re-engaging with the counterparty.”
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A Virtual Street of a Thousand Blossoms
Remote mediation has been winning over early skeptics among experienced mediators. Many say they will continue to mediate some disputes online after the pandemic and use hybrid mediations with some participants present in person and some joining remotely. This evolution in practice need not be limited to considerations about how physical mediation can be cut and pasted into the digital world in the name of efficiency. The online space offers the possibility of a process that is better tailored to individual disputes and that is more accommodating of new participants and new markets. Set in these terms, the present moment of change is an opportunity to reconsider how to better align mediation with the needs of a broader range of disputing parties.
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What mediation teaches us about healing and bridging social divides: Thomas Wahlrab and Robert A. Baruch Bush
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By Guest Columnist, cleveland.com
DAYTON, Ohio -- Even after the election results are finalized and the new president inaugurated, one thing will remain unresolved – the deep divide within the nation that the campaigns for the presidency confirmed. It was not Joe Biden versus Donald Trump, or Democrat versus Republican. It was “socialist” versus “fascist,” “anarchist” versus “racist,” Josef Stalin versus Adolf Hitler – and worse.
In the face of that divide, merely calling for “healing” and “unity” and “civility” will not bring us together. But practical steps can be taken, based upon the methods of a field called conflict resolution, which uses approaches that are proven to help bridge divides, at both the personal and group levels.
These methods include mediation and dialogue, which give support to the natural human process of social healing. Those who would “bring us together” can learn several important lessons from the ideas and practices of good mediators and facilitators.
First: Before trying to bring opposed factions together, it’s critical to give the sides time to themselves – time to speak and listen to themselves, to regain some clarity about what has happened in the conflict and where they stand. The biggest mistake some would-be “helpers” make is to force adversaries to face each other when they are still uncertain of their own ground. When shaky and frightened, no one can even think of listening to an opposing view.
Second: Different sides do need to meet and talk. But rather than requiring “civility” and tamping down anger and hurt, those who convene the talk should aim at supporting and not suppressing expression, of all kinds and on all sides. The parallel is allowing a wound to clean itself, even with some healthy bleeding, and not patching it over and trapping infection inside. Good mediators and facilitators know how to support this kind of healing “conflict talk.”
Third: With or without the help of others, conflict talk works to heal divides if it employs a few simple – if difficult – principles and practices. One is that listening is the beginning of speaking. Each side has to listen -- first of all to itself, to reflect on what it wants to say, formulate it clearly, and only then to speak. And then each side has to listen fully and openly to what is said – without immediately reacting and thinking about how to answer and make its own points.
And then the hardest part: Each side has to try to see and hear the “best” in what the other side says, rather than the worst. That is, to see how what is said is understandable, how it makes some human sense even if it is not how “we” see things. When this happens, conflict and difference takes a critical healing step – from demonizing one another, to humanizing each other.
If we follow these practices among ourselves as citizens, then, even if we can’t “get to yes,” we can “live with no.” We can live with difference, diversity and even conflict, but with true civility within a healed and single body politic. In these polarized times, leaders and citizens who care about healing our democracy should enlist the help of those who know how to use these methods well.
Thomas Wahlrab is former director of the Dayton Mediation Center and former executive director of the Dayton Human Relations Council. Robert A. Baruch Bush is co-founder of the Institute for the Study of Conflict Transformation in Dayton, and is the Rains Distinguished Professor of Law at Hofstra Law School in New York.
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Under Section 68 of the New South Wales Retail Leases Act, and in other Australian jurisdictions, parties to a commercial lease dispute may not sue until the applicant has obtained a certificate that mediation has failed to resolve the dispute or the court is otherwise satisfied that mediation is unlikely to do so.
In response to the current COVID-19 pandemic, the Premiers of the Australian States and Territories and the Prime Minister combined to form a “National Cabinet” to find consistent ways to tackle the economic impacts. On April 7, 2020 a Mandatory Code of Conduct was announced, subsequently reflected in State and Territory legislation, containing leasing principles applicable during COVID-19 to landlords and small to medium enterprise (SME) tenants: “the Code”.
In brief, under the Code, tenants whose trade has suffered and their landlords are obliged to renegotiate their arrangements in good faith. Leasing Principle 3 requires landlords to offer tenants proportionate rent reductions, in the form of waivers and deferrals. This may amount to up to 100% of the rent ordinarily payable, on a case-by-case basis, based on the reduction in the “tenant’s trade” during the COVID-19 pandemic period and a subsequent reasonable recovery period.
How this works in practice
A tenant suffering a 60% loss of turnover (subject to negotiation and agreement in good faith), would be required to pay only 40% of the normal rent during the pandemic and would receive both a rent-free waiver of 30% of the normal rent and a deferral of 30%, payable over at least 24 months, commencing after the pandemic is declared over. Meantime, landlords may not increase the rent nor take any of the usual actions available under a lease – including termination, drawing upon security for non-payment of rent or imposing penalties for non-trading.
In New South Wales, the Code was implemented on April 24, 2020 by a Regulation that was amended on July 3, 2020 to make it clear that lessees must provide evidence that they are “impacted”. The Regulation affects both retail leases and commercial leases. For a lessee to qualify as “impacted” its turnover in the 2018-2019 financial year must have been less than $A50 million. However, the way in which that is calculated differs depending on the nature of the lessee and this has led to much argument during landlord/tenant mediations.
The Regulation includes consideration of franchisees, which creates a more complex landscape. If the lessee is a franchisee, the relevant turnover is the turnover of the business conducted at the leased premises. If the lessee is a member of a corporate group, the relevant turnover is the turnover of the entire group. In any other case, the relevant turnover is the turnover of the business conducted by the lessee.
In a real-life example, the landlord was an elderly individual whose sole income was the rent from a shop. The tenant carried on business from numerous shops and had closed them all except the one owned by the landlord, where trading had actually increased. The tenant was able to claim at the mediation that it was entitled to rent relief under the Regulation, proportionate to the overall reduction in its business turnover.
What the cases say
Despite the extraordinary volume of leasing disputes being mediated, there are few cases reaching the courts.
In Sneakerboy No. 2, one of very few cases to consider the COVID-19 leasing regime, the judge said:
“The issue of whether the phrase “tenant’s trade” in leasing principle 3 refers to the whole of the tenant’s turnover, or only the turnover at the premises the subject of the particular lease, does not in my view always require the same answer. The overarching principles stated in the Code include: “It is intended that landlords will agree tailored, bespoke and appropriate temporary arrangements for each SME tenant, taking into account their particular circumstances on a case-by-case basis”. The overarching principles include that arrangements “will take into account the impact of the COVID-19 pandemic on the tenant with specific regard to its revenue, expenses and profitability”. They also include: “All premises are different, as are their commercial arrangements; it is therefore not possible to form a collective industry position”.
However, in my view it will generally be the case that the phrase “tenant’s trade” in leasing principle 3 will require a consideration of the whole of the particular tenant’s turnover, as well as costs and profit, from all locations at which the tenant conducts retail businesses.”
To my mind, the Code and the Regulation are based on the assumption that tenants are likely to be more adversely affected by the loss of trade attributable to the pandemic than landlords, who are assumed to be the ones required to make concessions to their tenants. This may generally be so and, indeed, the stated objective of the Code is “to mitigate the impact of the COVID-19 pandemic on the tenant”. Accordingly, there are no provisions requiring tenants to agree tailored, bespoke and appropriate temporary arrangements for landlords, nor do the overarching principles take into account the impact of the COVID-19 pandemic on landlords. These deficiencies make it harder for mediators to encourage tenants having multiple leased locations and enjoying full trade at the landlord’s premises to have regard to the circumstances of sole individual landlords dependent entirely on rent from one shop.
A reassuring outcome
The good news is that despite the remarkable increase in disputes in the retail and commercial lease space and the financial distress they reflect, mediation continues to demonstrate its value. Evidence reveals that the online mediation environment has not been a disincentive for parties and in fact online mediations appear to resolve faster. Most encouraging is that the settlement rates of about 85% have continued to hold up – a great endorsement of mediation’s value.
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CONCEPTS THAT CAN HELP PRACTITIONERS HELP PARTIES MAKE DECISIONS IN DISPUTES
John Lande
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(This is an excerpt from a very useful longer post by John. I have provided the link below.)
Dispute resolution practitioners help parties navigate a complex system of dispute resolution processes and issues. Practitioners help parties assess their conflicts, and then select, design, and participate in processes for dealing with their disputes.
Some concepts can help practitioners help parties make good decisions in disputes by better:
-understanding the world
-communicating with each other
-planning, performing, and analyzing actions
Unbundled Concepts
We would do sooooooo much better to unbundle our traditional models. The following unbundled concepts, which are elements of traditional negotiation and mediation models, can help practitioners communicate more clearly and better plan, perform, and analyze their actions.
Types of Dispute Resolution Decisions
- Dispute resolution process (e.g., negotiation, mediation, arbitration, trial)
- Procedures in process (e.g., information sharing, logistics, timing)
- Resolution of issues (issues that parties are concerned about)
Factors to Consider in Resolving Issues
- Value of options (e.g., expected court outcome, profit from deals)
- Tangible costs (e.g., legal fees and expenses)
- Intangible costs and interests (e.g., stress, relationships, reputation, loss of opportunities, and lots more)
Parties’ and Practitioners’ Cognitions and Actions Relating to Counterparts
- Goals (e.g., partisan advantage, joint gain, fairness)
- Assumptions (e.g., zero-sum, positive-sum, negative-sum outcomes as well as assumptions about other issues)
- Attitudes towards counterparts (e.g., hostile, polite, friendly)
- Relevant norms (e.g., law, parties’ interests, normal practice, “going rates”)
- Communication process (e.g., counteroffer, interest-and-options, norm-based)
- Tactics (e.g., dirty tricks, information sharing, and many more)
Lawyers’ and Mediators’ Actions Relating to Clients (with examples of variables noted in parentheses
- Listening (timing, and amount and quality of attention and understanding)
- Helping parties assess their case (whether practitioners help parties conduct assessments and, if so, the timing, amount, and quality of help)
- Assessing options (whether practitioners assess options and, if so, the timing, appropriateness, amount, quality, and confidence of assessment)
- Predicting outcomes (whether practitioners predict outcomes and, if so, the timing, appropriateness, quality, and confidence of predictions)
- Giving advice (whether practitioners give advice and, if so, the timing, appropriateness, amount, quality, and confidence of advice)
- Applying pressure (whether practitioners apply pressure and, if so, the timing, appropriateness, nature, intensity, and effect of pressure)
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Not all of these concepts would be relevant in each case. But they identify a manageable set of issues for practitioners to consider in planning and performing their work. Moreover, these checklists do not address all dispute resolution issues. For example, they don’t include some actions performed by adjudicators.
Parties’ perceptions of these issues inevitably change during their disputes. As parties proceed in their disputes, they learn more about likely outcomes, tangible and intangible costs of various processes, and procedural options. Practitioners vary in how explicitly, systematically, and thoroughly they help parties make these assessments.
Practitioners also vary their interventions during a case. They generally start by listening, and they use a combination of other actions as cases progress.
A framework of unbundled concepts like this does not imply the appropriateness of particular interventions in particular situations. Rather, it can help people make more careful and specific judgments about appropriateness than is possible with the bundled models.
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"Nothing is more important than empathy for another human being's suffering. Nothing, not a career, not wealth , not intelligence, certainly not status. We have to feel for one another if we're going to survive with dignity.
Image Courtesy of Brad Heckman
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Newletter Subsriptions and Details
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In an effort to recognize the specialization in the ADR community, we are creating 3 separate newsletters broadly covering these areas: Mediation - Arbitration - International ADR.
A newsletter focused in one of those areas will be sent out bi-monthly. In order for you to subscribe to as many types of newsletters that fit your particular practice/interests, please click on the Update Profile/Email Address link at the bottom of this email. From there you will be able to select which newsletters you wish to receive or if you would like to opt out all together.
Thank you for reading my newsletter, and as always, if you have any questions on any of the articles listed, do not hesitate to contact me.
Sincerely,
Thomas P. Valenti
350 W. Hubbard St., Suite 630
Chicago, IL 60654
T: 312-925-0081
F: 888-667-2485
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