“Mediator's New Breakfast Club Recording - 10th March 2021”

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“Mediator's New Breakfast Club Recording - 10th March 2021”

Guest Speakers: 
 
- Andrew Goodman (Mediator)
- Paul Adams (from the Civil Mediation Council.)

Transcript

“These transcripts have been automatically created. We apologise for any errors and will correct names etc. if we are alerted to them”

Okay, well good morning everybody, and welcome to the mediators new Breakfast Club. My name is Michael Koba and Dave, and I moderate this all whatever we tried to do, this session is being recorded, and so it will be available for distribution. Once it's been kind of topped and tailed. We have two guests today, which David will introduce Dave will introduce in a moment, as we will contemplate the possible applicability of mediation to what's going on with the royal family at the moment. So what we what we generally do is to ask some of our new attend people attending for the first time to just very briefly in one sentence or two just to introduce themselves. So we've got a fairly kind of random list. We're going to take about 15 just to rattle through quickly. So who's first first up then as a new attendee, Dave? Brian Allen, please. Okay. I'm Brian Brian Allen. Some if you'd like to unmute and just say a sentence or so. Okay, no, Brian Allen. That's one down. Next one. Ed Bailey, if you're on Good morning, I'm Matt Bailey.

 

I'm a rural practice chartered surveyor. And I run base and partners and Snowdonia and been running this practices 2014.

 

I'm a farming community network volunteer caseworker volunteer, which is sadly see me busy dealing with people in the farming fraternity who are who are struggling with a mental health more recently. I'm very pleased to be invited. Thank you very much for doing so. You're very welcome. Okay, who's next day? I'm Caroline. Buchan. Please. Can I back up? Hi, morning. I'm,

 

I'm a commercial barrister, and mediator and I have been along to some of the events before a couple of years ago in London. It was really good one about and the peace process in in Northern Ireland, which I really particularly enjoyed. Thank you for having me. Thank you. Okay, Valentina. Please. Yes, I'm Valentino bouguereau. I am a director and associate babina of this standard conference on mediation advocates in Nigeria. I'm an attorney, mediator. And then mediation advocacy trainer. plays a really bad idea.

 

Thank you. You're very welcome. lovely to see you. Next time. Good morning. My name is Steve. Steve scar. I'm an independent media based in Harrogate, North Yorkshire on it. No, heck, I can't be certain. Okay, we're not. Michael, do you want to just ask the next 10? Yeah, that's our will do right. Who's next?

 

I can be I can be next. Hi, everyone. This is my first meeting here. My name is Juana and I'm based in London. I run a small HR consultancy in London. I'm an HR consultant and a new civil and workplace mediator.

 

Okay, very welcome. Okay, who's next? I guess. Yeah. Go on Simon. Yep, Simon marks. I'm a brand new qualified mediator, workplace and commercial mediator.

 

I can't remember how I found myself to this to this to this morning. But thank you for having me. I am desperately looking for observations to kind of launch a career. And that's me. I have a commercial background, music, business and property. Okay, great. You're very welcome. Who's next? Okay, I'll go.

 

I'm Karen Irwin. I'm a mediator in Dublin. I do commercial workplace elder mediation and family mediation that's not separating couples. And I was president of the mediator sensitives of Ireland for seven years. And we are now in the throes of coming to our final redraft of our code of ethics and practice.

 

Fantastic. Who's next? Hi, I'm Nancy Radford. I've been a mediator now for coming up to seven years. I do special educational needs, workplace mediation as well as civil mediation with small businesses and charities.

 

Okay, thank you. Right, who's next? Hello. Okay. Yeah, David, go ahead. Okay. Hi, I'm David Powell. I'm a chartered Lance were

 

qualified in 1967 been trying to retire for the last seven years, but people keep coming to me with boundary disputes. Well done. Okay, who's next? Next. So Laura, go ahead, Laura.

 

Sorry. tibetian. Hi, everyone. I'm Laura Forster nice. I know a few people here which is lovely. So obviously my networking skills have Slightly been okay. Just that I'm yeah, I'm a brand new mediator as well also done my course but looking for observations, so very up for that if anyone would be bear me in mind. by trade I used to work in the city in the government and I also am an ombudsman or Financial Ombudsman. So that's my day job, but really hoping to grow a mediation practice as well. So

 

you're very welcome. Okay, who's next? Oh, there we go. Yeah, go on. I'm john from bertoli lakisha. I'm an ADR accredited commercial mediator.

 

Back in 2005, I think I'm semi retired, but I still do a bit. In addition to commercial, I do a bit on wills and probate as well. Thank you. Okay, right, we've got time for two more. who's who's

 

Diane Harvey. Hello, Don. Hi, I'm director and mediator of a mediation, which is a new service that I set up with my twin sister. We deal in civil and commercial mediation. She specialises in workplace and I specialise in equine. I'm a member of the agricultural law Association and deal with land and boundary disputes, etc. Okay.

 

She's joining you later. She's my twin sister. So if you get confused, I apologise. Great. Okay. Last but not least one more. Iwas gonna say, Oh, it was Roger levy.

 

Hi, it's Martin Martin bedforms. Here. I'm a commercial consultant, primarily public sector. I've been a mediator now for about four years. Do both commercial and workplace mediation within the civil service. And just glad to be here. Thanks so much, America. Well, perhaps you somebody mediated the Philip Rapmon dispute with Priti Patel home office. I couldn't, I couldn't possibly comment. I didn't think he would be able to. Okay, well, now I'll hand over to Dave now. Everybody's very welcome. And thank you. We have 117 on at the moment of overdue, Dave,

 

thanks very much. Sorry for the hiatus a couple of people were trying to get on. So I gave him some help, hopefully. Right. You hopefully will have seen the flyer. We've got two excellent. speakers this morning. Firstly, Andrew Goodman, you've probably have been able to Google him. His main claim to fame is he's the only person who's ever unaccredited me on immigration accreditation course. He's failed me. And well, john, I think in Swansea, he also had a hand in that. But I don't hold that against them, of course. And secondly, at 11 o'clock, Paul Adams, of who's the CEO of the CMC, has got about three quarters of an hour session. So I'm sure that both of those will be extremely welcome, as as speakers. Andrew, I think you've spoken to us before. And I if I can ask you to kick off if you're ready, Andrew.

 

Thank you. Thank you very much. Good morning, everybody. And first of all, can I thank David, Michael and Martin for giving me the opportunity to being pulled out of warm up, man. I'm sure we're all very interested to learn what's happening at the CMC. And the the changes that he's going to be talking about after 11 o'clock. I want to talk about international practice. And in particular, I want to talk about the challenges facing mediators doing international cross border work. And I want to do it from a very specific perspective. I mean, what you take from the next 40 minutes is either going to enable you to help market yourself for international practice, or cross border work. Or it's going to enable you to to understand how to select a mediator if you are engaged as a mediation advocate. And I suppose it comes about because over the last 11 years, I've managed to fall into quite quite a lot of international work. And certainly, I've been working in about 20 different jurisdictions in the Gulf states, Southeast Asia, Hong Kong, Turkey, Nigeria, South Africa and India. And before the pandemic, and nothing in the year before the pandemic I had something like 19 long haul flights to various places, which I don't intend doing again, because it's just ridiculous. But I found myself working both as a mediator, and a mediation advocate, trainer, consultant, government advisor, I think what's worth the price of admission alone is is, is really a tip on how I came to fall into doing this kind of work. And it's simply this, and I'm sure there are one or two very distinguished names on the audience today. Who I daresay will do the same. When you go to a new place, whether it's for a conference, or whether it's to meet a particular lawyer, or particularly if it's a place you've never been to before, do not go as a tourist, don't become a tourist, what you need to do is you need to engage in the business that you're there to do. But but then you've got to network with local lawyers, you've either got to find local lawyers or fellow professionals from your home profession, and aggressively network on the basis that the next time you come, it will be for them rather than the person that is harassing you this time. And that I'm afraid is what I've managed to do over the last decade or so effectively network with local lawyers, put yourself out to go and speak to them in their offices or have lunch with them. If there is an Anglo local Lawyers Association, let them know that you're coming. And there'll be very interested because they will find people for you to meet. And I've had this in Turkey in Nigeria, I've had this in South Africa, in in Singapore, and it's the most important way of developing an international practice. I think there are about this is a very wide subject, but I like to confine myself to three or four specific areas. One is jurisdiction. One is language or linguistics. While is to do with local business practice, and social and cultural structures, which I think are incredibly important in having an understanding of where you are as mediator and what you're doing.

 

And I think in many respects, both as a potential mediator or in hiring a mediator, you've got to engage in a beauty parade, you've got to speak to people that you might select, you need to speak to the lawyers who might select you to get an understanding of the nature of the work that you're being asked to do, or your or your being lined up for. And in particular, you have to have a clear understanding of the kind of qualities that you are looking for, and the qualities that you have to display if you're trying to engage in international work. Because there is no question it adds a completely new dimension on top of your existing work as to what you're doing, particularly in preparation, and certainly in the way in which you have to deal with the parties and their lawyers. And I'm fortunate in the sense that I have a very eclectic practice now because I'm a panel mediator at institutions in Hong Kong, Bangkok, Ankara, Lagos, Delhi and Kathmandu, which is a very odd range of places. But it means that you can take in cultural considerations that would escape, the ordinary Westerner who suddenly pops up in a strange place does the job and goes away again. And that's something I suppose I want to focus on. And the starting point is, is taking ordinary mediator selection, and then adding these various other elements that you need to bring in. So what kind of a mediator is the client looking for, or more particularly as the foreign lawyer looking for? We start off with the label the labels that industry gives us facilitative evaluative, normative transformative transitional around the world. These are simply just industry labels. The reality is that you have to gauge very early on whether this is the kind of work which is going to require you to be directive, interventionist, robust, commercial minded. For weather, excuse me weather Whether this is what you can't stop any working from your kitchen.

 

So it's the degree of robust robustness, the degree of commercial mindedness, the degree to which they expect you to be either proactive, or let's say, fair or more conciliatory or more evaluative, you have to get a sense of what's required of you. And, of course, what's required of the mediator if you're, if your role is selecting or recommending a mediator. And of course, the moment you start talking about the degree of robustness or intervention, then you're already bumping up against both cultural considerations and linguistic considerations. Before I look at that in, in, in in detail, can I, I talk about jurisdiction. And I know that for for many of you who are non lawyer mediators, this may sound like, you know, lawyers talking shop. But I think it's very important to have an understanding of the the jurisdictional elements that you're going to be working in the, the chances are that either one or more of the lawyers who are engaging, you are not from your jurisdiction. That's the whole point of doing international cross border work. And therefore, the challenge is to meet the expectation of the lawyer that comes from a jurisdiction other than your own. And it's this expectation, which, which really requires you to undertake some degree of research into the intent into the hinterland of that particular jurisdiction. And it's not simply a question of academic theory, there are very practical consequences in having to understand the nature of the jurisdiction you're working in, from the perspective of the mediator, first of all, you will, obviously have to look at the choice of law, which underpins the dispute. And if it's a law, which with which you are not familiar, then you're going to be relying on on the foreign lawyer, representative of the party to let you know about that law. And you have to have a degree of confidence that what that lawyer is telling you about their law is is accurate.

 

But if we if we look at sort of the layered understanding of jurisdiction that you need, there are a number of things which I think jump off the page at the kind of work that the, the mediator has to do. First of all, what is the big challenge that you face in working in a jurisdiction other than your own, or where there are parties who come from jurisdictions other than your own? The big issue, of course, is is finding an acceptable settlement to all parties, which is, which is understood. That's the first challenge, they have to understand what it is they're being required to do. Under the settlement. The settlement has to be workable across both parties, it has to be durable, it has to be enforceable. It has to carry the way to the authority that's available for someone to enter into it. And you may think that, okay, well, this is what a mediator does anyway. But you have to take into account a number of things. First of all local business practices, industry norms, if there's any specific industry that you're working in, which which has particular standards, which may differ across the jurisdictions, you may be faced with societal concerns or societal structures, which feed into the business structure. So for example, if I'm working in the Gulf, I know perfectly well that it may be that I'm dealing with an institution, but the institution is likely to be connected with a family which is likely to connected with the ruling institutions in a shape them whether you call the shapes in the United Arab Emirates or or Kuwait, or or Cata you You'll still bumping up against the interests of the ruling family. And they can be very significant even though they don't appear anywhere on the face of the papers of mediation. In Japan, you may find that there are corporate structures, which are very closely closely tied in to closely tied into the way business operates. But you cannot separate cultural ideas from business structures, you may need an understanding of monetary values and value systems generally. And this is before we get to pure linguistic and cultural issues. So let's let's pick up on the jurisdictional challenges for a mediator unfamiliar with a particular jurisdiction in which he's being asked to work. I suppose at the top level, you can have an understanding of the needs of of the lawyers who are appearing for the parties. First of all, by understanding the nature of the legal system, in which the dispute sets. So obviously, we are working out of a common law system. And we are therefore comfortable with the concept of precedent, so that the lawyers who wish to get involved in legal argument will between themselves be using precedent as an exemplar to try and provide an underpinning for their their argument, if the starting point is some kind of positional argument before they move on to understanding interests. But supposing one of your lawyers comes from a civil law jurisdiction. And you have no particular practice in civil law jurisdiction, which comes complete with a code ification of law. I mean, as a rule of thumb, even if you don't know the first thing about the difference between civil and common law jurisdictions, you can say this, that in a civil tort law jurisdiction, because of CO deification, everybody is taken to know what the law is the law is immediately accessible to anybody who looks it up, that includes you, you've got to translate that the problem is the problem with the civil law system is inflexible. And this is based on an interpretation of law, rather than the practical application of law.

 

And because of the inflexibility, it, it requires interpretation to differentiate. So you'll have civil lawyers arguing about interpretation rather than arguing about precedent in a common law system, so if you if you if you happen to be working on a cross border dispute involving the United States, Canada or Australia, various other New Zealand and the residual common law jurisdictions, elsewhere, you will know that the great thing about the law is is flexibility. It provides immediate access to justice, that is practical justice to the parties involved in the dispute. On the other hand, of course, is inaccessible. The law and common law jurisdictions changes every time a senior court reports a case and under those circumstances, while it's organic, it means you need it, you need a lawyer from that jurisdiction to tell you what the law is. So why is it important, because as a mediator, it will tell you the kind of lawyers that you're dealing with, what their expectation is, what their, their their background is, their comfort zone. This is important for you, either when they're choosing you to be the mediator, or if you are choosing a mediator from a jurisdiction, where you know that the lawyer from another jurisdiction may have a completely different approach and a completely different attitude. The next thing about jurisdiction is the degree of regulation of mediation. So we come from an almost completely unregulated world so far as mediation in the UK is concerned. And if you're faced with a more regulated jurisdiction so far as mediation is concerned, that's also going to have an impact on the on the expectation of lawyers. Coming from that jurisdiction. So in particular, there are heavily regulated mediation jurisdictions in, in in Turkey, in Italy, in Greece, and is likely to increase around the world. And so you need to be aware that if the other jurisdiction is regulated, you need to have a sense of what the regulations are in respect of the way mediation is conducted, they're simply in order to meet the expectation of the lawyers who are coming from that place. Now, one of the things about having a, a regulated mediation world, it tends to suggest that there will be strong support for mediation in that jurisdiction. And it's something worth knowing the extent to which the courts in a particular country are likely to be pro or anti mediation. Again, it feeds into the lawyers background, the lawyers hinterland, and also to an extent the top of the lay client centre, that if the lay client is a large institution, particularly a commercial organisation, then they will already be familiar with mediation, if their own legal institutions are supportive of mediation. Whereas if there is a completely unregulated or a, an image or mediation jurisdiction, then it's quite likely that the clients will be very unfamiliar with mediation, generally, I'm very nervous, therefore, of cross border mediation, or international mediation. And therefore, the media need this to provide confidence in the process and confidence in himself or herself. And that goes to questions of making sure you exhibit neutrality and use of language and you fall over backwards to make sure there's no perception of bias, in particular, cultural bias model of mediation.

 

The many years ago, I was asked to talk to the High Council of justice in Brussels, from the perspective of English mediation. And to my utter astonishment, I discovered that they they didn't know what a caucus was. They had no caucusing in Belgium, or the Netherlands or France. And I suddenly realised, of course, that models of mediation don't extend to how the mediator is the way the mediator behaves, Acts, party empowerment, the extent to which the mediator is the manager of the process, or one of the parties are, in fact, the managers of the process. And, you know, in researching this for my writing, it became obvious that in the UK, we fallen into a particular model of mediation almost by accident, because of the way mediation came to England in 1989. And so, we have a not only do we have a facilitative model of mediation, but we rely very heavily on the nature of caucusing, so that we can speak privately with clients or privately with lawyers or privately with experts. But you have to be aware that in other jurisdictions, the caucuses is not an acceptable form of of dealing with mediation, and it gives rise to trust issues in the mediator. So those of you who are familiar with the family model may discover that that is the normal commercial model, in jurisdictions where you are being asked to mediate, or where one of the lawyers and one of the parties is coming from. And you have to make sure that they're going to be familiar with the kind of process that you wish to engage in. And therefore, on the one hand, you need to be robust once the mediation starts, but before then you've got to make sure that the parties are comfortable with the process, which is which is going to be used in your particular mediation. And finally, a number of very specific things which are linked to jurisdiction and which I think are very important with First his concepts of without prejudice and confidentiality. We work as mediators effectively, only because the parties suspend they are the procedural war and allow themselves to freedom of negotiating within the umbrella of without prejudice and confidentiality. And in many respects, if we had no without prejudice, context in which to work, mediation simply wouldn't succeed. And equally, people have to be confident that this is a confidential process and their confidences will be protected, both by the mediator and by the other side. In order for the mediation to work, what do you do in in a jurisdiction where they have no concept of without prejudice, and where the contract where anything discussed in the mediation might afterwards be be raised in court, as as part of a court case, after a mediation, it didn't succeed in bringing about a settlement. This is called commonly the jurisdictions of the Gulf states have no understanding of the nature of without prejudice. And therefore, if a mediation does not succeed, it's quite likely that the offers that were bandied about in mediation might be taken into a court, as evidence laid before a judge that the other side was willing to make concessions, and therefore, that could be used as evidence of wrongdoing or admission of liability. For the mediator. That means that you have to be incredibly careful not only about the use of language and the messages that you convey,

 

but is extremely difficult to work, because you're almost straitjacketed, the answer may be, of course, that you rely very heavily on hypothesis. So I certainly remember mediating into by in circumstances where I had to say expressly to a party, I'm not making an offer, I have no offer to bring from the other side. And you must understand that this conversation is not about any of, however, works to be an offer, should I be in a position to make an offer? How would you How would you respond? How would you deal and you're working purely on hypothesis until such time as as the parties indicate that they would be prepared whether to be that kind of an offer to meet it? Deal. The next thing in terms of jurisdiction is ratification. It may be, of course, that and it goes to authority. What happens if you're told that there is authority? Again, this happened to me on one occasion, in Dubai, where as far as I was concerned, there was a deal of a run. And then one of the parties says, of course, I now have to, I now have to have this ratified by, by senior members of the family, or by the shakes private office, or by a treasury committee, or by and on and on and on. And I remember being in Dubai for nine days waiting for ratification of a mediation that I thought would come to settlement. So you have to understand procedural matters, which feel procedural but which are in a sense, cultural. And, of course, that leads on to the big question, which which is enforcement? Is the is the settlement going to be enforced, in your jurisdiction in the other jurisdiction independently? Is the settlement agreement going to be portable so that it can be used by reference to the Singapore convention? bearing in mind that the UK is not a party to the Singapore convention? And as presently advised, I don't think it will be joining Singapore convention? Not certainly not for a few years, because I don't think I don't think government has any interest in joining Singapore convention. So enforcement is the last big thing about jurisdiction and I want to move on to the two other areas that I'd like to touch on lightly. Before we leave before I open it up to questions.

 

Language, all of us would like to work in our own language.

 

Our preferred our preferred language, I should think for virtually everybody on this call is English. And you may, you may wonder how it is that I can work in 20 jurisdictions? And the answer is I speak English in all 20 jurisdictions irrespective of whether anybody else speaks English or not. And to that extent, I represent the face of Western arrogance. And I have an expectation that if I'm hired, people will understand that I work in English, even if they wish to work for interpreters. And although that sounds chauvinistic the starting point is that most of the world's commerce as is operates in English, international contracting is mainly an English. And it's reasonable to assume that if you're going to be hired or go on to a beauty parade, it's not going to be because of your linguistic skills. Although that may be a pertinence if you happen to be bilingual or trilingual in the appropriate language. That's a very big selling point. English can be problematic in in, in dealing with people who think they speak English very well but to a non native English speakers, and I urge anybody that's working in English in dealing with with cross border or international work to be extremely careful. Please, please try and work out whether you are speaking to native or non native English speakers. non native English speakers are taught English literally, and whose understanding of language 10 English tends to be a literal understanding. And I have got into all sorts of trouble in the past by failing to recognise which I now do the importance of trying to avoid idiom, vernacular colloquialism and non shared legal jargon.

 

I come across this often during the international student mediation competitions, where there are very, very good teams of students and lawyers, who are non native English speakers. Who can be completely thrown by mediators or judges using idiom, which which you and I wouldn't think twice about as native speakers. But I remember coaching a Turkish team, an extremely famous New Zealand mediator who should have known better pose two questions during the course of talking to them. The first question is, who is going to do the heavy lifting? And the second question invited them to dig deep. And they were completely thrown by these two expressions. They didn't know what he was talking about. And even though they could work it out from the context, it distracted them, as he continued in his conversation. And I think there's something we have to be very careful about when we're dealing with a foreign element, we have to make sure that there is an understanding of everything that's being said, you know, that the role of the mediator is, is essentially, to act not just as manager and chairman and problem solver. But here, interpreter becomes incredibly important. You know, as lawyers, we use English as a precision tool, and to an extent, so do we as mediators, and so we should, you have to be incredibly careful not to realise that the world of mediation is not confined to the Anglo Saxon world. There is also a very strong and well established Francophone world of mediation, and growing Spanish welded mediation and growing Russian welded mediation. So language is becomes extremely important, not just during the course of the work that you do, but in the course of your selection as well. And it's the ability to convey understanding, which is absolutely vital, particularly in the negotiation process, when things may fall apart because of language that you use, which is either not adroit or it's misunderstood. And you also have to make sure that it doesn't carry with it cultural assertions that that are heard differently in different rooms. You know, one of the big challenges for the mediator is to make sure that everybody understands, in the same way, what is being said, whether it's in one room with everybody, or in separate rooms with separate parties, or as between a lawyer, and that lawyers, clients, and none more so in making sure that you have the settlement, right. And just another throwback to jurisdictional issues. You know, in many, in many jurisdictions, the responsibility of the mediator extends to drawing up the settlement, the mediator is actually responsible for ensuring that the settlement as drafted is legal in the relevant jurisdiction, is workable, is sufficiently clear and detailed, so that it won't fail for once of particularity, and that it simply carries the understanding of both parties. And I have to I have to say that, for English mediators working abroad, and suddenly told, it's your job to draw up the settlement in accordance with our law. That's the challenge. And it certainly happens. And therefore, you need to understand the, you need to understand what it is that your role is going to be if you're operating in a different jurisdiction, which may be a far cry from what you'd be expected to do here. But on the other hand, you can lay down your own rules and say, I will do this, I won't do that. And the lawyer in the other jurisdiction may find that unusual, they find it strange, but at least you have to set out these ground rules. Before you start, I want to touch very quickly on on the influence of cultural values.

 

I've talked about making sure that everybody in the room has a clear perception of what is going on and what is being said. And people may hear something, which means which is a culturally different cue, so far as their perspective is concerned. And this is not simply societal, it's actually anthropological. For those of you who are academics, you will know that the early writers on mediation in the 50s and 60s 70s, they weren't lawyers, they were anthropologists, and most of the time, they were social anthropologists, and they were looking at dispute resolution in the three main areas of of anthropological groups, that is cultures, which are dignity, on face cultures, most of my work is in the east and therefore I deal mainly with face cultures, who do not want to be embarrassed, either by the nature of the dispute or the extent of the dispute. They don't want to be embarrassed by a failure of understanding of what is going on. And therefore, communication is is absolutely vital in dealing with a face culture. And you have to tread incredibly carefully as as a as a mediator. These are cultures which developed because population demography is very, very, very high demography of population and therefore, a great sense of family a great sense of tradition, a great sense of community before self. And this is reflected in the kind of settlements that you're going to come across in Japan and India and China, in Southeast Asia. Whereas in in, in the United States, in Canada, in South Africa, you have dignity cultures, dignity, cultures, they are driven by rational, the rational settlement based on our confidence, and therefore, the mediation will turn upon information which is given as a result of close questioning. I'm happy to make this concession but I need to know why. should make it you know this the settlement is reasoned, and and it's dependent upon information gathering at the earliest stage. Whereas honour cultures, European cultures, particularly Latin cultures, Central American, South American, and North African, Middle Eastern cultures are honour cultures and they are concerned with with dignity. And there's a very strong emotional driver within these cultures, that that has to be addressed by the mediator, you have to cope with that you have to absorb it, understand it, and use that as the driver first for settlement. I want to make time for for questions or discussion because there's such a lot of people on the call, I think, for you to get involved in international work, you have to have a great deal of confidence about what it is you think you can do. Specialist specialists subject matter expertise is of immense study, particularly in construction engineering, oil and gas, in financial disputes, in in investment disputes, development disputes, you know, a lot of you may have background skills in that which you can carry forward. But the core things that I've been trying to talk about are really the effectiveness of communication, how to deal with the expectation of foreign lawyers, and how to deal with the various jurisdictional issues which are thrown up, which attach themselves both both procedurally and substantively to the work that we do. So I do hope that that that's been of some assistance to you in working out how and when you're going to suddenly go off and start working abroad. or better still, how you're going to receive inbound work from from from your kitchen, or your study, as we all do online now. So thanks, Dave, take take it over to you for any questions.

 

Thank you very much, Andrew, thank you for that. We've got about 10 minutes for questions. Can I click off with one please? If you've got a cross border disputes, where one party's mother tongue is different to another's? Do you think that you really need two mediators, co mediators one, fully versed in one and fully good and the other fully versed in the other? Okay, so

 

what you have a choice, you're either going to rely on interpretation of some kind, or you're going to rely on the fact that somebody will be speaking in a in a in a language, which is not their mother tongue, or Coe mediation. I'm very keen on current mediation, I think that doing doing international work, lends itself very nicely to co mediation simply because if there is a mediator from from each background, each socio cultural background, each linguistic background, it negates the problem of perceived bias. You know, even if we have no actual bias, we there is a subliminal bias, we naturally gravitate towards the party that is easier to communicate with, to the party, that's more like us. There's a problem with interpreters. You don't know, you don't know the language that they are interpreting into. And you need to test this the skill of the interpreter. Because you have to have confidence that what's being said is, is a translation and not an interpretation. If I can put it that way. You know, I, I generally test interpreters by by making a joke. And I like to, I like to know that their English is good enough for them to be able to carry humour. Because I think that's important. You have to be very careful about humour in as a mediator. Although it's great to use humour, there are cultural sensibilities, you have to be very careful. But I remember testing interpreters. Before I started a mediation once, and the language was fuzzy. And I, I said, Oh, I like to break ground by making a little joke to get people out there is and I explained, I said the joke I said, Do you think you could translate that? And they said, Oh, yes, we have no problem translating that. And then they said to me, oh, Tell me why it's funny. Why is it funny? And of course, that told me that they could carry his words, but they couldn't carry the sense of the words like a native speaker. And I think you have to be really careful when somebody says we have an interpreter? Or will you bring an interpreter? You know, so you have to be careful about that. You're absolutely right, promoting co mediation, I think is a very good. And it's a very good vehicle for getting people involved in international practice by by bringing them in. And I think it's a good thing to do.

 

Thank you. I think we've probably got time for three or four questions. So if anybody wants to unmute.

 

Hello, my name is Josephine. Thank you very much, Andrew, I actually have an agency with translation interpreting. And everything I say is spot on. One of the biggest things is they culture consultancy, we always try to make a understand the client, for example, going into what is what they really want to say, and what is going to be understood. And I'm just going to give you a very quick example. I actually have his swabs here, swabs when they actually went into the Italian market. This is he was translated as instead of a Tony water, he was translated as toilet water. That shows how important it is when you're saying thank you.

 

I find I find curiosities. I think a mediator should be curious. You know, we always have as a starting point, you know, a basic approach, which is to try and understand what is important to people? What is important to the client, what is important to the lawyer? And and then you can ask, why is it important. And then you can investigate the context in which it's important. And you can build this up, either by the use of language or by trying to get an understanding of culture. And as you engage in this conversation, you're building rapport. It's very difficult for a mediator from another culture to build rapport without seeking an understanding of the importance of where the dispute sits within the cultural framework of the country in which he or she may be a stranger. So I'm greatly appreciative of the kind of work that you do. And I think everybody, everybody should should they should engender, they should project the sense of curiosity, because then I think both the parties will reach out to the mediator, and offer the mediator the assistance that the mediator needs, at the same time the mediator is working psychologically to, to gain the information that he or she needs in order to bring the parties together. And sometimes, of course, it's not just the parties that are from different backgrounds or cultures, it may be the lawyers themselves. If you're dealing with a large multinational corporation, it's quite likely that there will people be people from many backgrounds or cultures working in the same business, and you actually have to address issues, which which are, are germane to the specific person you're dealing with. I mean, I did a dispute where the client was Canadian, the lawyer was American on one side, and then there were two different Arab lawyers on the other side, and there was there was, there was more tension between the Canadian and the American than they weren't between the Americans and the Arabs, you know, it's, and you never know where that's going to come from. You've just got to watch out for it all the time. I mean, you know, it's very intellectually stimulating work. And it's always a learning process. If you're dealing with somebody from another country, you're learning all the time, and you should allow yourself to absorb things that are coming in. Because all of a sudden, you may see, ah, now that's why that's important. I've got to address this because if I don't address this, it will be a stumbling block. And I have to find a way of doing it so that both sides are comfortable. And both sides.

It's very difficult to create a sense of balance or equality when you're dealing with with this kind of work, but that's what you've got to strive for. Totally agree. Thank you.

 

I think we've got time for two more. So anybody else please?

 

If I may, Jonathan finger hearts here. And that was really interesting. Andrew, thank

 

you very much for that. You I don't think you've really touched on whilst words you know, traditionally they say, seven 7% of of communication, whereas body language is over. 50% Yeah, yes, oh four. So

 

you've got the cultural stuff. But this whole thing of body language. And obviously the the added dimension that when you're online, you only see part of the body language, you don't see my, my legs tapping up and down as I'm speaking to you, and so far. So how do you get round this, this body language, not necessarily the zoom element, but just when you're with different cultures, whether it's, you're working with Indians, where where Yes, is a shake of the head, you know, that's the obvious one. I think that

 

at the moment, if we're sitting on zoom, you have, it's actually quite difficult for people to disguise their reactions within their face. You know, we have a close up in a way that we wouldn't normally have, if we were sitting in a room. So I think there's, there's some, there's this some great advantage in that. And I suspect that even culturally, it's still quite difficult to, for someone to disguise the reaction that they have in and around their eyes, when they're receiving information, or they're dealing with something. Wider aspects of body language concern the interaction of people in the room sitting around a table. I didn't mention things like the importance of seating arrangements, the important of the of the kind of seating, I, I came across, I thought of a very interesting technique in Garner, where they the mediator sits with the lawyers on either side of him. And then the clients further down the table. And the impression was given psychologically, is that the lawyers and the mediator form a panel of problem solvers in order to deal with a dispute. And I thought this was a fascinating idea. I'll try that the next time I was mediating and I was faced with an elliptical table, and it was impossible to do it. But you're absolutely right, in. In many cultures, body language is at least as important as the way people speak in the language that they use. And again, it's something you have to watch for, you have to be very careful. I mean, very obvious things. crossing your legs can be seen as, as quite insulting. In certain cultures, particularly if you happen to be putting your feet pointing your feet at someone. If you're, if you're, I mean, you you should expect, in, in certain places, not to be doing remediation at office, but potentially to be doing the mediation in a more domestic environment. It's perfectly possible to be invited into someone's home, for the purpose of getting to know them before they're prepared to engage in any negotiation at all. Certainly, if you, if you go to, again, the Far East, it's quite likely that the parties will have a meal before they engage in the formal negotiation, or one side will invite you to a meal. And as long as there's no perception of bias, and you have a meal with both sides, before things start, you have to you have to work these things out. And then once you once you're engaged in a particular culture, then I suspect that you will make assumptions about always doing it in that way. And that's also a mistake, you know, we it's actually difficult to generalise I'm conscious of the fact that I've generalised pretty much the whole of my my talk today, and we shouldn't generalise because of the influences that that people absorb when they're working in a cosmopolitan culture anyway. So for example, supposing I was asked by to supposing I had a French, French and an English dispute into the mediation was in London. And I might be thinking to myself, well, wait a minute. I mean, I've got to be conscious of French language French culture. But you shouldn't generalise. One of the reasons you shouldn't generalise is this person may have been in London for a long time. And London is the sixth largest French city because there are 150,000 French been living in in London. So I You shouldn't make too much of these cultural considerations, unless you're going somewhere, which is completely different beyond your normal experience.

 

Thank you. Thank you very much. Thank you very much, Andrew for that, in case people are not going to be able to stay until the end, perhaps I could just ask people to thank Andrew.

 

Thanks. So assuming he's still on, Paul, Paul, are you there? I am here. Yes. If you can only hear me. Good. Thank you. I don't know if David Foster has joined sort of David, I should say, who is chairman of the CMC? If you are on David, perhaps you could just say hello for a second. Okay, well, he may join us a bit later. So, Paul, if you're ready, could you kick off with your sexual things?

 

Yes, yeah, sure. I'm afraid you got the B team. I think David's exceptionally busy at the minute. So um, you know, you've got me this morning, Andrew, thank you very much. That was very interesting. As a non mediator, what I took from that was international mediation basically involves eating a lot, which is good, I like that idea. Eat, eat with all sides, and then you arrived. So I think I might take it up. For those of you that don't know me, my name is Paul Adams. I'm the CEO of the civil mediation Council. I'm a non mediator. So I've learned a lot this morning. I've been the CEO since 2018. And this is the second time I've had the opportunity to address this, this Breakfast Club. The last time I was on was, I think the autumn of 2019. And at that point, we just launched a new strategy, which runs from 2019 to 2024. So this morning gives me a great opportunity just to kind of give you a snapshot of where we've got to why we're doing what we're doing, what's working, what's not working, there's there's plenty of both. And also to answer any questions that that you might have about about the organisation or about what direction we're going in. For those of you, I'm sure most of you are aware of the civil mediation Council, but if you're not, we are the largest members organisation, in the sector. We focus on for now at least, we focus on civil commercial mediation, and civil commercial mediators, and also workplace and employment mediation. And I'll touch a bit in a second about other areas that were that we're starting to look at. As a non mediator coming coming to work in the sector, two or three years ago, I was struck by the amount of the lack of unity, if you like the number of organisations that there are within the sector. And the fact that there's, as Andrew touched on, before, that there is no essentially no regulation within the sector, which which was a surprise. The 2019 2024 strategy basically has two fundamental aspects. One is to was to get the CMC in a much better place, both structurally and also operationally, to essentially make sure that the organisation was was sustainable going forward. And the second one was very much about how to support our mediators and crucially how to how to develop the sector. We are in a slightly difficult position in that we are a charitable organisation, volunteer, predominantly volunteer run charitable organisation, I think sometimes people have this idea that CMC has, you know, vast offices and fleets of staff, we don't, there's myself, and there's Helen and her Secretariat team. But we all work part time. So, you know, if you if you try and get hold of us on a Friday afternoon, and we're not there, my apologies come back to us on Monday morning. So, we have this charitable status, but we also are essentially a professional members Association and that that is a kind of dichotomy if you like the two things don't always sit very well together. On the one hand, obviously, the interests of our members is usually important and we have we are only financed by by the membership fees paid by our members and therefore it's crucial both for their benefit and and for the organisation that that we pursue what professional mediators are interested in. But as I say, we also have this charitable articles. And that's very much about what's in the public interest. And so we do have to kind of juggle that, essentially, what the strategy looks at what's best for our members. And you know, a lot of you will will say, to me that what you're most interested in from CMC is finding work. And I understand that point of view. On the other hand, we have to look at what's best for the public. And that may or may not be the same thing. We also have to look at what's best for the sector. And that's certainly something that, as part of this strategy, we tried hard to do, we tried hard to look at how can we develop the sector as a whole, particularly working with other partners?

 

as well, as you know, for the benefits of our of our of our members. And on top of all of that, we have to actually build a functional sustainable platform, that means that the organisation is still going to be here in five years time, 10 years time. So we can't spend no every penny of money that we get in on doing exciting stuff right now, because we have to build for the future, we have to put we have to secure reserves. And certainly, when I came in, that was something that was wasn't in a particularly good state. So we've spent the last couple of years, essentially making sure that the organisation is functional and is sustainable going forward. As I said, the last time I was I was here was very much to introduce the strategy. And the fundamental concepts concept behind the strategy is to secure what what we've termed automatic referral to mediation. So essentially, that is the opt out rather than an opt in model. Why have we done that? Well, we've done it predominantly because it would be a game changer, both for the public in terms of access to justice, but also for our members in terms of securing ongoing and sustainable income stream. And in terms of the amount of work available. In order to do that, we have got to leverage government. And that is really this, the situation that we that we reach right now is that over the last sort of 18 months, two years, we've we've essentially fixed a lot of the structural and financial issues that the organisation has. And what we're now looking at is okay, going forward, how do we leverage government to get an automatic referral decision? And that is, unsurprisingly, quite a big challenge. It would be a big challenge if we represented all of the sector, but we don't. And so one of the issues that that I'm sort of looking at, and I'm going to talk a lot about what sort of what I'm trying to achieve over the next 12 months, is how do we get to a situation where we have much more uniform representation of the sector, it's very difficult for us to try to leverage government or to negotiate with government and try to persuade government that that mediation is the, you know, is should become the default conflict resolution mechanism for all the reasons that you guys understand that I'm not gonna I'm not going to bore you with them. If we only represent a small proportion of the sector. Now, why do we represent a small proportion of the sector? That's the case for a variety of reasons. Firstly, there's no compulsion to membership just as there's no regulation. Secondly, historically, the sector has become quite fractured. We've had situations where people didn't see things the same way Funny, funny being a sector full of mediators, but for whatever reason, decided to go in their own direction. So we've we've had organisations split off, we've had other organisations set up. And also I think, predominantly because of the organic and voluntary nature of some of the work. And it has been difficult for one organisation really to sort of stamp its its authority across the across the whole of the sector. So if we want to get to this automatic referral decision, one of the key tenants of the strategy is we need unity, and we need unity across the sector. And also we need to stop reinventing the wheel. So at the moment, there is ourselves as the College of mediators. For example, we obviously have FMC is very much responsible family mediation until the last sort of 18 months, there was very little cross pollination between the between the three, a lot of lot of resources being spent by all three organisations essentially essentially trying to do the same thing. So over the last 18 months, we've we've started something called the auto mediation forum, which is an opportunity for ourselves college mediators, family mediation Council, other organisations such as a castle and restorative justice council to essentially get together and discuss how we can work more closely together. It's been slightly challenging with with, with COVID. But one of the things that we have come to agree is that we should try to develop a UK

 

code of conduct. And the concept of the UK Code of Conduct is that it would be accepted by all mediation organisations within you, within England and Wales. And it would should essentially have a core component, which would be those behaviours that we would expect from all mediators, irrespective of whether you're a community mediator or a family mediator or civil commercial media. So whatever it is, you do, those are the behaviours that would be common to all all mediators, and then essentially annexes for each of the specialisms. Why is that important? Well, it's important one, so that we can start to look at how we can develop common training between the organization's Secondly, it common things like common training, help us to start to reduce the cost of developing new training or to reduce the duplication of resources, if you like. Additionally, it allows us to, by having a common code of conduct and analysis to adopt a common complaints and discipline procedure. What Why is that important? Well,

 

at the moment,

 

let's say for example, you a mediator who is a CMC member, does something which is seen by the cmcs discipline committee to be inappropriate for for a mediator. There is nothing to stop that mediator and they are disciplined, there is nothing stop that mediator simply leaving the CMC and going to join the college as a good example, okay, so we don't have this joined up approach where Code of Conduct is a necessity. Following the Code of Conduct is a necessity because there are other options, you could also obviously just continue to practice as a mediator, and not subscribe to the college or ourselves, there is no, there's no requirement for you to to be a member of any organisation. Go back to what I talked about just now, if we want to leverage government to take mediation seriously and adopt this automatic referral mechanism. Government needs to have the confidence that mediation as a whole, the mediation sector is a professional, well run well regulated. profession. And currently, we can't do that because because there are so many gaps in the system. So So cooperation with the with the college and others, his suit is super important to help us to move that forward. And this UK Code of Conduct is is a big step forward in that. The other thing we want to be able to do by going down this route is look at how we can enable mediators to potentially in the future to to move from one specialism and mediation to another without necessarily needing to take a whole load of backward steps. So the concept would be to come up with a core skills training that was which was accepted by all organisations within the sector. And then you were having passed that core skills course very similar to the to the system that's running Ireland, you would then be able to go on and specialise in a particular area. If having specialised in that area, then decided well, actually, perhaps, commercial mediation is not for me, and I would like to do family mediation, or I'd like to do workplace mediation, you would then be able to do the the appropriate specialisation course, without essentially needing to start again from from scratch because we recognise that there are core skills that are that are super important for all mediators in all areas. So that's, again, we're trying to come up with a sort of more grown up approach to the to the organic and slightly chaotic situation that that has existed to date. So all of that is going on, sort of in the background at the moment.

 

And I'm very happy to take questions but perhaps perhaps at the end. The next thing that we you might have seen and I think was mentioned at the last of the last Breakfast Club. We tried to change the membership categories that that the civil mediation council Has why I saw lots of messages earlier people asking about the availability of observation. So I probably should tackle this one head on. And one of the one of the things that we realised is that over the last 10 years, the data says about 10,000 people have passed through CMC accredited training to become mediators. Now, the first thing to say, we all recognise that some a significant number of those who take mediation training, don't necessarily do it to become professional mediators, they do it perhaps as CPD for existing careers will, they want to be able to use it as a skill within within another sector. So we understand that but of those 10,000, around 7%, have then gone on to become members of, of the CMC. And to be honest, 7% is not good enough. So if we want to try to generate this unity within the sector, then we have to, we had to dig in and understand why such a small number of those who passed training then went on to become CMC members. And one of those issues, and I'm sure this is going to ring bells for a lot of people, is the inability to get the observation. So a lot of people passed past their training. They then looked at the CMC and thought, Well, actually, there's no point in joining until I can deal I can get registered status. So I'll wait until I've got my observations. And once I've got my observations I'll join. And of course, as we all know, observations proved, for many people, particularly those outside of perhaps London, have proved very difficult and in some cases impossible to get. So we need to find a mechanism to fix this, both from CMC sustainability perspective, but also from the unity of the sector, you know, we are essentially turning away a large number of people who complete training each year, because they don't feel like joining the CMC has, is accessible. So we've come up with a new associate membership category. And that's essentially for all new members coming straight out of training. All of those who complete courses, from 2021 onwards will be given six months free membership. So essentially, they'll automatically be enrolled in the CMC as they finished the course. And we are looking at a variety of options to change the observation model to try to find ways to help mediate new mediators achieve register status. Now, as ever, with this kind of thing, there's two schools of thought there's there's the certain certain registered mediators who would say, Well, you know, I'm asked to find observations, you know, it's sort of rite of passage, and everybody has to do the same. I understand where you're coming from. And, and it is of note that those who are very active, proactive in finding observations, very often go on to be successful, because they have got the right mentality for, for what is for many people, self employment. And so they are very, very motivated, and they go out and find the opposite the observations, it's Also of note that traditionally, CMC has been criticised for being very London centric. And if you don't live in London, things have got easier now, I guess, because of, because of COVID, funnily enough, and because of because of online mediation, but it is difficult to make some many connections, and certainly face to face observations that are much more difficult if you live in the West Country or West Wales or the North Country. So so we recognise all of those. So we're trying to develop a new system, a points based system, which will give points for for completed observations, but also for other CPD, which will enable people to have more access. Crucially, also, one of the, one of the main reasons why we have registered status is to push up standards. And there are more ways to push up standards and just to focus on observations. So one of the things that we realised was, we were very sort of, we were clinging to the observation model, but actually we could push up standards for lots of mediators who perhaps were choosing not to join by ensuring that they signed up to the Code of Conduct by ensuring that they took CPD every year by ensuring that they had insurance

 

by ensuring that they were subject to complaints and disciplinary procedure, all of these four things push up standards without anybody needing to have done an observation. So whilst registered mediators status remains the from our perspective room remains the benchmark, what we want to do is to help encourage new mediators to get out there to get experience, and to to behave in a professional manner. And also for us to support them through the process. And from that perspective, Roger has been involved in in helping us to try to develop a mentoring programme so that we can help again, push up standards. And that's not only for new mediators, but for register mediators as well. And learn from each other essentially. The second aspect to the membership categories is very much the senior mediator. So it's difficult for us to propose to be the sort of industry leader when it comes to when it comes to standards, professional standards for mediators, when there are many very senior mediators who are members, slightly embarrassing from a CEOs perspective, and why they're not members very often because they've been in the industry for a long time, and they don't feel like the CMC has bought them any benefit. Previously, you know, once you've got to register status didn't matter whether you've been whether you've been a registered mediator for a month or 15 years, there was no, there was no sort of regular recognition of seniority. And so we've now bought in a fellow status, which we're hoping to award to very senior mediators, which will recognise their their status within the sector. Hopefully, that will encourage those senior mediators back because they are the ones with the experience that we need to help mentor are both are registered mediators and an indeed our new our new mediator. So we're trying now to to ensure that there is a home for everybody at CMC, whether you're whether a new mediator who's just finished training last week, or you've been in the industry for 20 or 30 years, hope everybody has something to contribute. And so we're trying to develop that that capacity for everyone. I talked to already about unity, talk a bit more, we're we're increasingly looking to try to ensure that we aren't siloing people in terms of in terms of, you know, you come in, and you're your civil commercial mediator. And that's what you do. We're trying to work more closely with other partners. So I'll give you an example. Up until now, I touched on it earlier, and in terms of our charitable status, but until now, CMC really has had no education focus. So you would, on the one hand, you've got automatic referral, RM, which is very much the sort of compulsion driving people to use mediation, or at least getting them to have to choose to opt out rather than to choose to opt in. But there is also the whole cultural change in terms of how do we persuade society as a whole, that mediation is a good thing. And, you know, perhaps in 15 or 20 years time, everybody will recognise that mediation is the way forward and far fewer people will go to court in the first place. So we're now working with a peer mediation network to develop what I think is going to be called youth mediation, so very much supporting the work that the peer mediation network has done to date with the resources or some of the resources that CMC has, particularly when it comes to social media. And also in terms of talking to government and trying to get philanthropic funding, etc. We, we want now to try to support mediation within schools, because they are not only the next generation of mediators, but also the next generation of, of mediation users. And even if even if not everybody, you know, subscribes to the idea. If at least they've had some encounter with mediation at an earlier age, hopefully, they're then going to be more more receptive to utilising mediation later. So we've just agreed a 12 month pilot with peer mediation counsel, or peer mediation networks, which will look very much about how we can support them how we can integrate it within the CMC and then we'll see in 12 months time, you know, where where we go with that, but but you will see an increasing amount of youth focused outputs coming from becoming from CMC. We're talking very closely with the College of mediators in terms of I've touched on this already, but how we can reduce duplication of resources, how we can support each other, we already have some

 

some projects that we work very closely together on so the national mediation awards is a joint venture Send me Jays register is a joint venture. And increasingly, we're looking at what other joint ventures we can do together so that we're all pulling the same direction, go back to what I said at the beginning about about previous fracturing within the sector. And we are trying to try to pull these things together. We've got to I've got two consultations, as I'm planning to run over the next six months. The first one will be very much with our training providers. Training is always a controversial issue. One of those things that I think everyone's got an opinion on, some people think it's great, something people think it's not great. Some people think individual training providers are fantastic, and others are rubbish and vice versa. So it's tricky. One of the things that we want to do is to bring in independent assessment of training. So at the moment, for those of you who've been through the system, but you for those of you who perhaps haven't been to the UK system, what tends to happen in the moment is we approve training courses, those training providers then go away, market their courses, people come on the course, they pay the training provider, the training provider provides the training and assesses the individual at the end as to whether or not they are up to standard. Obviously, there is a there is a potential for conflicts of interest. And without wishing to get into debate on it, what we want to do is remove that potential conflict of interest. So what we're hoping to do in consultation with training providers over the next sort of six months or so, is figure out a mechanism where we can use independent assessment at the end of the training course, that allows the training providers to essentially teach the understand the standard, they can very much gear their training towards the individuals who are on a particular course. So you know, if you've got someone who, who perhaps has a lot of background experience, and in a very, very, has a lot of skills necessary, perhaps you can stretch that person in that individual further, if you've got someone who has no relevant experience and needs quite a lot of mentoring to bring up to the standard, then you can concentrate on the basic. So it's the idea is to give the training providers more flexibility, essentially, it's to provide a hurdle. If you get over the hurdle, that's great. But you have to get over the hurdle. So it's the analogy that I normally try and give is it's the driving the driving test analogy, we want to get to a point where the test is independently assessed. When you go for your driving test, it doesn't matter if you've had one lesson 10 lessons, 100 lessons, or, you know, your mom taught you and you just happen to be good at it. And as long as you are above the standard, you are above the standard. So outside of that, you know, we're not interested in how you got there. And hopefully that will provide more flexibility within the system, but also more transparency in terms of the standards. And where we will look to do that is that hopefully we had a meeting about this with with the Irish mediation yesterday to look at what they do. And then if there are any criticism standards, you can come to the CMC and criticise us, whereas at the moment, it's slightly difficult situation. So we will hopefully take over that responsibility, as you would expect from from an organisation of our status. Second consultation is with the other organisational members of the association. And that's very much looking at the current panel mediation panel mediator model. Go back to what I said already about about leverage with government. Currently we have our mediation provider members, they are then able to or they are then able to employ whichever mediators they want. So we have a situation where through the utilisation of panels, we have CMC providers using non CMC members and you know, go back to what I said already about various senior mediators in the in the in the sector who aren't members. And currently they're allowed to be not be members because there is no requirement for CMC providers which make up the majority of have larger mediation providers to utilise CMC members.

 

flip side of that coin is obviously we have a lot of CMC members who would like more So it seems a little bit daft that we have this, we have this disparity at the moment. So we're going to run a consultation, I'm gonna run a consultation with our, with our provider members this summer, to look at how we might adjust that system, hopefully to make it fair for CMC members, but also to make us more transparent when it comes to, to external organisations, government, etc, in terms of the mediators who are being used. So that's, that's another tricky one to to, to deal with, but we'll deal with it over the next six months or so. elections. So the board, you'll be aware that a proportion of the board is is is elected, and we're coming up annual election in March. So anyone who would like to consider joining the board, please keep an eye out for him for the election notices that will be going out. We're also Tom Thomas, our current deputy chair is stepping down after giving selling service. And you may have seen in mediation messenger and others, that we are currently recruiting for a new deputy chair. So the jury's out on that one. We have a new new website coming. Charity boards, our social media providers, one on one attended to provide a new website and we're hoping to very much change cmcs online presence particularly looking at making the website much more public facing. Okay, so at the moment, it's it's a bit of a mishmash between information for mediators and information for the public, we aim to make the media the website very much public focused, and then all of the mediator information and crucially resources and hopefully a forum as well, so that we can swap ideas will be behind the gateway for our members. So the idea is very much essentially to have two sides, one who's the one behind the gateway, which is completely mediator focused. And hopefully, we'll be able to go into more depth and provide more of what you need. And one which is very much public focused, which is cleaner, simpler.

 

We're looking a lot in terms of how to simplify mediation and terminology. Andrew touched on that earlier in terms of terms of language that's used a lot of times that you guys use, interchangeably or you know, with an understanding of what they actually mean, very confusing for the public. And I certainly found that as an outsider coming into the sector couple years ago. So we need to look at how we can gear that to make the message to the public much, much easier for them to understand. final one, which is research. Go all the way back to what I said about automatic referral, it's if we are going to persuade government to make a positive automatic referral decision, then we need the data to back up the efficacy of mediation now. You'll be aware that really the main piece of data that's out there at the moment is is is the seat of study. But we are aware that it is it is not the efficacy of mediation, which will persuade government, it's the financial savings made by the efficacy of mediation. You know, we've got to be realistic about this, the government is not going to make the decision we want purely out of good heartedness. The only lever really that that is going to force a decision or make a decision more likely is to be able to make the business case for it. And we need to go down that route. That data very difficult to get hold of at the moment. So what the board has just agreed, we've agreed a budget to recruit a researcher who will who will run a scoping study. And this is not the research itself. This is simply to understand, okay, what data is it that we need that would be most effective to influence government in the direction we want it to go? So it's not it's it's the like I said scoping study. It's the research about what research we then need to conduct. And the reason we're doing this is because we want to make sure that we target and utilise our resources as effectively as possible for what might be quite an expensive piece of research and in time. And also, it is impossible for us to go looking for funding for that research until we're very clear about what research it is we want. And that's one of the reasons why CMC and others have failed to get research funding in the past. And as you'll be aware, in a Brexit scenario, funding for research is much tighter than it was previously as well. So we're in a very competitive environment.

 

So yeah, that's a very quick gallop through everything that's going on with CMC at the minute what are all the big issues? Very happy to ask answer questions for for as long as David or let me rant on

 

Thank you very much for that. Paul, have you got five minutes or so to take some questions or comments? Yes, sure. Sure. Thank you. Can I can I just mentioned something which is a bit of a hobby horse of mine, which is about observations, we've now got this fellow grade. Would it not be appropriate that to qualify for a fellow grade, you have to offer observations subject, obviously to the agreement of the parties and or their representatives?

 

Yes, I understand where we're coming from. And that might well be an option. As I said, we're considering all all of the options in terms of how to make this observation hurdle easier to navigate. They're also not going to offer an opinion either way, there are those who say that the observations are crucial. And that it's a you know, it's a very necessary part of, of a mediators, development. There are those that say, there's actually been no scientific evidence to prove that. And the reason that CMT adopted it was because somebody casually mentioned it in passing, and somehow it found its way in. I'm not going to offer an opinion either way, what I am going to say is that with with registration stands committee, we're looking at how can we make things easier? In terms of observations, we're currently looking at a pilot project, looking at simulation, how can we do things smarter. I hear what you're saying about about fellows that might be that might be a way that might be something that we can consider. We also have to remember the number of fellows we're talking about potentially, and the number of new mediators and that you know, that's a, that's a, there's a big disparity in terms of numbers there. So it might be an option, I suggest that if we want a pragmatic solution for six 700 new mediators a year, that we probably going to have to look at a more structured and perhaps new, more innovative way of fixing the issue.

 

Thank you. If you do implement it, please don't implement it into like, third, whether I've been elected as a fellow and accepted as a fellow. I do always try and take observers with me. So if anybody who's on board wants to go on my list, please let me know. So I think we've got probably time for two or three comments or questions. I have one place. Yes. Far away. Sorry. Is that me? Yeah.

 

Hi, Paul, thank you, for your time, really appreciate it. And I have put it in the notes, so won't be surprised to others listening. But I recently tried to become an associate of the CMC and was told did all my training online due to COVID and can't get observations very well, also doing community mediation. I really like the fact that the points based thing takes into account online mediation. However, when I try to register, I was told that I couldn't register with the CMC until I did a face to face assessment, which kind of seems to me to fly in the face of doing online mediation and everything else. And also, I did my training, three cedar, it was recorded. So I wondered, and they said to me that they're not doing face to face assessments until June. So it kind of that it kind of goes against what you were saying about trying to get people on being a member with the CMC because it's putting people off.

 

Am I understand where we're coming from completely? Sort of two things. Firstly, you 18 months ago, prior to COVID, if you had suggested that we would be able to do mediation training online, there would have been a small hissy fit at CMC, and people would have had to go like lie down in the darkened room. So we have come a long way in that time, because COVID has forced that situation, okay, in order to get a positive decision to allow online training, because when COVID first kicked off, there was a view that we would simply wait it out until COVID finished and then we would go back to face to face there was a view that mediation is a face to face scale, and you need to be able to demonstrate that you can do it face to face, okay. So that's in order to get a positive decision to allow Online mediation, the compromise was that there had to be a confirmatory phase that was face to face. And that, and that's where, and that's where we are. Now, I understand from your perspective that it's frustrating. As I said, we're funny enough we were talking to, to, to our equivalent in Ireland yesterday. And they started off doing doing confirmation of training via video. And they went back to doing a confirmation Face to Face Face.

 

So

 

I think pragmatically, I'm going to say, I'm sorry, but it is what it is. If, if, if it wasn't for the confirmation phase, there wouldn't be any online training. So I can't, I won't politically, I won't be able to get you. You can do it all online and never prove that you can. Not you personally, but the mediator never proves that they can do it in the room. And that is me. Right. That's that's what the registration Standards Council views it, of view of it is. I know it's frustrating with COVID. I don't think when we made that decision, you know, we were talking about this was made in April last year, and we were talking about confirmations in September, and we're now where we are now. But I don't think that will change. And certainly the the experience of of Ireland who were ahead of us on this is their view was it was a mistake to do everything online. Sorry, that's probably not the answer you wanted to hear. But that's where we are. Now, I understand it's tricky. I do I just, yeah, it's frustrating, like you say, No, one, I mean, going going back to to joining as an associate and you know, look with any of this. I'm not pretending that we've got all the answers. Yeah, we're we're making this up as we go along as much as anybody. You know, one thing that we that we may need to do is to look at how can we bring you in with a with a, you know, with a proviso that you do the confirmation phase, within a certain time or as soon as it becomes available. And that's something I can certainly take back because we don't want, we don't want to lose you, you know, we want to help you make the transition. And I think that's probably the biggest difference I can say about where we are now to where we were, before it was a hurdle that you needed to figure your own way to get over. Now, we want very much to help you on that journey. We want to create a pathway from the day you join, join your training course, to the day you retire as a fellow and that's that's we should be there for you all the way through. So I certainly don't want you to to fall through the cracks as it were at this point. So maybe email me and I'll and I'll and I'll talk to I'll talk to registration standards and see if there's a way that we can maybe jig the the associate member to ensure that we don't we don't lose yourself and other mediators like you.

 

Yeah, Paul thought to add here. Because obviously, it's it's a very tricky situation, at the moment, as a number of people have mentioned, which is highlighted by COVID. And we were wondering whether we could consider just an online registration status, that, I suppose is a little bit analogous to driving just an automatic car, not a good car, perhaps. But on the on the on the other hand, I would, I would say that having come through the system 12 years ago, and having done my observations at that time, that with the benefit of hindsight, I found that that that they weren't in they weren't enough to to make you know, to make it possible for me to mediate confidently on my own, which which is one of the reasons why I now mentor new to qualified mediators because it's it's something that I found was lacking. Were not when I qualified. So it's, I'm sure everyone appreciates, it's not straightforward because you know what everyone wants to qualify as soon as possible. But then it's also important to keep standards up into for everybody to appreciate that. It's it's not a very simple and straightforward exercise to suddenly become a mediator

 

Yeah. Agreed. And I think, you know, that's why also we're looking at other options. You know, how else can we, you know, his observations the gold standard for for developing mediators. Many say that some say that there are some say that there aren't I think they're part of the solution. But I don't think they are the solution. So how else can we look to support mediators in that in that sort of developmental, developmental period?

 

I think we've got time for one more common question. I think Andrew had his hand up first. Sorry, Jonathan.

 

Sorry, Jonathan. Couple of things, Paul. It took me two years to get my observations completed. But admittedly, that was in 1980. And I suspect the difficulty was there simply no work around and there weren't mediators, mediators to take you out on observation. I think observations are very important. I think it gives new mediators the opportunity to see different personal styles, which I think are very important. I think that if the public if the public thought that we were allowing people loose into practice, after just 40 hours training with a with a couple of role plays, and an assessment, I don't think they would be very comfortable with that idea. There aren't many, there aren't many professions or organisations that regard themselves as professions that would permit people to to take up the work of the public with just 40 hours training. So I think observations are important. I think, if you licence training organisations to run courses, they should have an obligation to seek out observations from their trainers or from their faculty members. I think that if you're going to institute fellowship, not only do I agree with David, that there should be an obligation on fellows. in respect of taking observations, I think you should require fellows to offer their services to provide simulations, let's say a minimum of two a year or three a year to be a fellow that should certainly go with the territory, in in most professions, and the lawyers will know this senior members of the profession, they give back to the profession by helping train younger people coming into it. That's the whole point of traineeship pupilage there's no reason why that shouldn't be institutionalised by the CMC. You know, I applaud what Roger is doing with his mentoring programme. I think it could be formalised, and I think that fellowship should bring with it responsibility. And I think I think there's no reason at all why the CMC, an institution that instituting fellowship shouldn't develop a formal kind of responsibility. I don't think we like the bar, you know, I don't like if we encourage people to buy expensive training. If we if we say that there's room for 600 700 new mediators year, that I think CMC has a responsibility, you can't turn you can't encourage people to join an organisation, and then provide nothing at the end of it. And it doesn't matter what it is that you do, whether it's ongoing advanced training, which is no cost, or whether it is some kind of mentorship programme. It's got to be done.

 

I like I agree. The question is how to, you know, is how to cook it. What I wanted to reassure everybody is that we're looking at it and trying to figure out a solution, the most pragmatic solution that we can. I mean, there are other options out there as well, in terms of, you know, paid observer ships, which I understand where you're coming from in in terms of an expectation on senior members to give back to the sector. Yeah, I get it completely. The reality is, will that be sufficient to, to deal with the numbers that are coming through training? And if the answer to that is not, and perhaps we need to put observer ships on a more commercial footing? I don't know. I'm currently on this. I'm just kicking ideas about but what I'm saying is that we are looking at options and trying to figure out what is what is the best solution for the sector. And for you know, and for our members, I think sometimes people get very frustrated, you know, several people have said to me, mediating can be quite lonely in that very often. It's just Especially when you when you've just finished training, and you feel like no one is there to help you. We're trying to figure out ways of, of making sure that on the one hand, the standards are kept up and go back to what Roger said about the usefulness of observations, Roger and Andrew both said about useful weakness of observations.

 

And so, you know, seeing practice, essentially, seeing what happens in the real world is, is, is good, you know, both, both positive and negative, I'm sure. But, um, we just need to figure out how we can make that sustainable, and how we can make it work much better than does it the minute because at the minute, it doesn't work, you know, I'm not pretending it does, it doesn't work. Yes, some people get through the system, but a lot of people don't, and then they get discouraged, and they, you know, they go off and do other stuff. So we need to, we need to find a better way of supporting people, whilst at the same time maintaining standards. And as Andrew said, it's also about public confidence, we need to be convinced that those who are setting out as mediators have genuinely got the skills and the experience necessary to do good job.

 

Well, you might have had a chance to monitor the chat, but there are an awful lot of people supporting the idea that certainly fellows if as a when they're elected, should chip take should be required to take observers,

 

I hear you, but like I said, My concern is, is the sheer numbers that you're talking about, there is a massive disparity between those who will be eligible and will choose to take on fellow status. And the numbers coming through training now, you know, understood, if you want, if you want to fix that, then the only way to fix it is to reduce the numbers coming through training, and no one's advocating doing that. So we need to we need to find a better solution. I'm not saying what the solution is that minute was, I don't know, find a better if you've got,

 

have you got tied to organisation, or professional organisation. Because I missed I missed the beginning of that sorry, at the moment, right, my experience of of, of mediation organisations is that they are principally involved in training as a main source of their income, therefore, that they need to address a balance because we can put as many people through the sheet dip as possible, but it's really not enough work out there. Then people are going to get frustrated, as has been demonstrated this afternoon, if you're going to offer a membership, a different pair of membership, and create this elite group fellows, and, but it's gonna come with a tariff. And the tariffs. It's not just about how much to pay how much to give back and Andrews perfectly arrived, if you are seen to be a senior mediator, and I've been doing it a long time, and I've been mediating for 15 years. So nowhere near as long as Andrew, but you've got to be prepared to give back. And if you're not, then you're not entitled to be a fellow and the story. You're

 

dancing around things. You're not taking things on. Listen to what you're being told.

 

Okay, so I don't and I don't I don't want to get into

 

enquete into think we debate about both sides on that. The one thing if I mean my observations and one thing and Paul probably remembers my hobbyhorse, which is that it's not just about standards, which is important. And it certainly observations is a huge problem because we're training too many bloody mediators, but not doing enough to increase the size of the market. Nobody's talked about this my hobbyhorse, I'm a marketing person is that and you talked about doing this research with the emoji and so forth. I do a lot of mentoring of Chief execs and so forth highly intelligent people who have a problem. And they don't even know what mediation is when I've mentioned to them this thing and then but for randles blessing, bless him of as many of you will know him. You say what a brilliant product but not enough people know about it. So when Oh, when will the CMC be investing with with others in in marketing, creating a bigger Kate, that means that people who are being trained and there is a complete and utter disconnect between the number as john said of people being trained as mediators and the amount of business out there and then you had to

 

block the logjam of observations and so forth. But for goodness sake, we need to tell people that this great product and increase the market size.

 

Yeah, I agree. And for that reasons, we employ charity for Last year to take over our social media. But it's bigger than that. Just Just let me finish. Sorry. But I'll take you right back to what I said at the beginning about the dichotomy that CMC sits in, in terms of being a charitable organisation. And essentially, as a sideline, a professional members Association. So under our charitable articles, it is not cmcs job to create work. It is, within our articles is our job to ensure standards to promote mediation to the public, but it is not our job to create work. Now. I don't want to get into a discussion about it. But it is a difficult line for us to tread. Yes, we promote mediation at every opportunity. But we are hamstrung one by our charitable articles and to buy resources. Now, that's another thing that I take you back to at the beginning, there is not an unlimited supply of resources. And certainly, where we were three years ago, when I took it on, we were losing money, hand over fist. So we have had to make some changes in order to make sure that the organisation is sustainable. And only at this point, are we got sufficient resources to start looking at Okay, what can we do with our with a small surplus that we've made over the last couple of years, in terms of in terms of going forward? And that's the decision is that that research data is is the preferred option? Yes, we could we could throw out all our marketing. Yes, we could. But you'll be well aware that a 10,000 pound marketing budget won't go very far. So the strategy is focused on government and automatic referral. And if we were to get the automatic referral decision, then all in all, the marketing in the world wouldn't, wouldn't have made such a big difference. Because automatic referral is the is the, the golden egg if you like it changes everything. And so we're very much focused on that, rather than utilising what's more resources, we've got on on additional marketing on top of what we're doing at the moment. So Dave, I do everything that you say, but but just to clarify, when I think about creating awareness, not marketing, maybe I shouldn't abuse it.

 

Can I can I interrupt? So I think we should let Paul off the hook. And now he's, he's fine. Dave, can

 

I just say something? This has been fascinating. And thank you both to both speakers. But one of the reasons we set up the mediators, new Breakfast Club, was it certainly I personally was fed up with the number of people charging money for courses to be trained as a mediator. But nobody was really thinking about actually how on earth as a newly qualified mediator to develop a practice, nor indeed how we develop the market. And so I think probably a lot of that has to be down to the mediators themselves. And I it's very interesting hearing what the cmcs role is, and it's come on in leaps and bounds, in my view, but there's, there's still a great deal to be done. And I'm afraid that the US the individual mediators or do the mediation providers can't escape the responsibility for seeking to develop the market generally and also assisting others in developing their practices.

 

Thanks, Michael. I think if anybody's really interested in they should stand for the board of the CMC elections. So I'd like to thank Paul, for the grilling stroke beating he's just taken. He's, I thought I got he actually kind of correctly balanced the needs and problems of the CMC. So thank you for that. So, hey, somebody's got the handle, I think wants to talk to you. No, no, I think we're, I think we're recording. Yep. Thank you. Thank you very much for that. One or two housekeeping. I think, Michael, the next meeting is scheduled for Wednesday, the 12th of May. That's right. When Lewis Johnson from this car is going to be our speaker will be going back to the normal Single speaker, then for those of you who don't already realise that the shedule is the second or third Wednesday of alternate months, if you want to make notes in your diaries in advance. And if you've not caught everything today, as was said earlier on, it's been recorded. So, when that's available, I let people know. So you can catch up with anything that you've missed so far today. Anything else, Michael?

 

No, don't think so. Thanks for everybody. It's any week. And thanks for the staying power of 89. Participants. We I think the maximum I saw was 133. Yes, somebody.

 

Somebody did say, well, we can have a break for to put on a cup of tea for five minutes. And I said no. So apologies for that. Maybe we should have a break in future but nevermind. So thank you, everybody. Hope to see you at the next one. If anybody was a first time I didn't get to introduce themselves if they couldn't introduce themselves as the first time a next time. Thanks. Bye Bye, everyone.