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“Resolving conflicts early to stay ahead” Webinar

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“Resolving conflicts early to stay ahead” - Mediation of commercial disputes in a lockdown and post-lockdown world

Featuring: Tony Marks, Jane Gunn & Michael Cover


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

Good morning and welcome to our ArbDB chambers inaugural webinar, while ArbDB members cover all disciplines of dispute resolution. This morning we are focusing on mediation. In forthcoming seminars we intend to focus to cover other areas of dispute resolution. Mediation is in the news. On the today programme at the end of April, Lord Neuberger raised concerns that contract claims arising from a lockdown might shortly clog up the courts. He supported the use of mediation to overcome this problem. On any view, there is likely to be a flood of litigation over the next 12 to 18 months, and not just contract claims. In light of this, we have two very experienced mediators from our DB to discuss the topic, resolving conflicts early to stay ahead, mediation of commercial disputes in a lockdown and close post lockdown world this morning. Before introducing speakers, just a couple of admin points, were keen for your participation in this webinar. There will be 20 minutes for q&a at the end, and you can raise your questions through the chat link, the q&a links, or the raised hand features on zoom. We will also be running a poll with a couple of questions for you. Our first speaker is Jane Gunn. She has mediated hundreds of disputes and is frequently chosen for her extensive mediation experience as well as her ability to handle complex and emotive cases are credited in 1996, a seeder shares a mediation fellow of the Chartered Institute of arbitrators a CMC register mediator, and an imi certified international mediator. She is also a very experienced mediation trainer. So over to you, Jane.


Thank you, Tony. And Hello, everybody. The first question I'd ask you, and it's not a poll really, but are you sitting comfortably? And the answer to that question should be no, because you shouldn't be. You shouldn't be sitting comfortably, as Tony says, And Lord Neuberger emphasised we're expecting an avalanche of disputes. And I can already testify that I had a colleague on the phone yesterday who was telling me he's got a dispute or conflict with a tenant in one of his premises. I've spoken to another client who is experiencing problems with two directors in the workplace who are not getting on terribly well. And the lockdown has exacerbated that. And somebody else who was expressing a concern about an overseas client, and whether they could actually manage to fulfil their contract. So I don't know how many of you are skiers, I'm a skier, and I've never been caught in an avalanche. But the thing about avalanches is that they take you by surprise, they knock you off your feet, they overwhelm you, and take away your breath. And more than anything, they stop you doing what you're good at, and what you enjoy, because you have to spend your time digging yourself out. So I don't know about you, but I hope that we can give you some tips on how to avoid and manage this avalanche of disputes. And really, the stakes couldn't be higher at the moment. This is the problem is you know, we, as clients, you know, you risk losing valuable staff. If you're a global business, you've probably got overseas clients. And you may have problems with client contracts. Now, I know on this call on this webinar, we've probably got a mix of lawyers, mediators and of business owners, and some of you will be all three. So as Tony said, I've been a mediator for 25 years, and my focus has always been this process of early dispute resolution, how early can we resolve a conflict and one of my parents gave me some feedback once and he said what you do Jane is you make molehills out of mountains. So here's my mascot, my trusty mole, Morris the mole because the difference between a mountain is you need a team of helpers advisors to help you scale a mountain if you've got a molehill, you can manage it with one man and a spade. So the earlier you can catch something, the less of a mountain it becomes. And you can manage it much more simply and much more cost effectively. So this morning, I wanted to talk about three things. One is escalation of conflict. The second one is the cost of conflict and One is this principle of early dispute resolution. Because I know that as a former lawyer and a mediator, what keeps me busy is what keeps you awake at night. And actually, what we're going to see, what we expect to see is this kind of issues that I've just highlighted being magnified and multiplied over the coming weeks and months, whether that's issues with business partners, employment, contract family businesses, there are so many issues that may arise out or will be exacerbated by the situation that we've just been going through and this lockdown. What, again, I see many of us as mediators see is that clients, potential clients, and even you know, many lawyers advising their clients on leaving the opportunity to engage with mediation until too late. Until you know that actually they're well mired in litigation, and perhaps the conflict itself, or the dispute has been going on for way too long. So let's talk a little bit about the escalation of conflict. And I have one slide up for this. But I wonder how often you have seen a conflict really escalate? And what does escalation actually mean? So, escalation of conflict is a process. So if I describe conflict, conflict is the process by which people express their unhappiness with one another. And then if you look at dispute as being the end product of an unresolved dispute, and conflict as a process goes through several stages, now there is an Austrian mediator who has highlighted this escalation process in nine stages. And I've actually simplified it for today. I don't know if we have the slide there, Martin, thank you so much. So this is the escalation of conflict process based on Friedrich Glaser's


process that he outlined and I've simplified it a little bit. But if you think of any conflict that you may have been in at the your clients have been in the very first stages that the parties stopped speaking to each other. Or if they don't stop speaking to each other, in fact, their communication, their dialogue becomes dysfunctional, they're not able to speak with each other without harsh words or, or falling out or being aggressive or adversarial with each other. So the dialogue is not effective. So the first stage is when parties stop speaking to each other. The second stage there you can see is what are called form groups. So what most of us do when we're unhappy in a situation of conflict is we go and take advice or tell our story to someone else. So I might go home and tell my husband, or if I'm feeling really aggrieved, I might escalate it to a higher authority, perhaps in my organisation, or I might go and seek advice from a lawyer. And that's where you start to form groups of people who support or advise your point of view. The next stage is that you create stories. So whatever the story is that you've told yourself about what the situation is, that story then becomes solidified, you write it down, maybe it becomes invested in some pleadings that your lawyer draws for you. So the story becomes created, and sometimes it becomes embroidered. And for all of us, as we retell a story, we believe in it even more. The third, the fourth stage, then is threats and actions. So actually, we start to say, Well, if you don't agree with me, this will happen. I may issue proceedings or the next stage in this proceeding with this or we might, we might have to end our employment contract or our contract together. So there are threats and actions which follow from that. Now, the interesting thing is, as you get down to the bottom of the escalator, really, in my experience as a mediator, the conflict or the dispute is no longer about what it seemed to be about, because the most important thing then becomes not losing face. I have invested this time, this money, however long that's gone on, in my case, in my story in the group of people who have believed in me, and now it's about not losing face. So that becomes the next important step. And the very final step, as you can see on this diagram is called into the abyss together. And very often we see in conflicts that come to us as mediators that parties have got to the stage where it's a matter of principle. They mustn't lose face, but really, if they go down, they don't mind as long as they take the other party with them. And that's often an extreme case. But sometimes there are so many vested interests in the case at that stage, that you have got to this end point into the abyss together. And sometimes that can be around actually how much you were rested or already invested in cost, in how much it costs to take this case to litigation. So thank you, perhaps we could take that slide off, Martin. So the next point is then to talk about the cost of conflict, how much does it actually cost? If a conflict goes on for more than a few days, a few weeks, a few months, and many, many conflicts that we see as mediators go on for many years. So there are four levels of costs that I like to go through with lawyers when I mediate, which are outside the usual scope of what we talk about, which is, you know, how much of the cost of the legal costs to date? And how much is it going to cost to take us to trial? And these are the costs I like to go through with clients? How much have you actually spent in terms of legal fees, but other actual costs that you can quantify? So you may have had to pay off a member of staff? But then how much time have you actually spent or members of your staff have spent thinking worrying about this matter?


Where else might you have spent that time or focused it? In other words, what might your lost productivity or lost opportunity cost be? What important relationships have been damaged or destroyed or maybe damaged and destroyed in the purpose process? And the final thing, which many many people overlook, is what is the impact of this conflict going on, on the health, on your health, or on other people's health, we know that workplace stress can have a huge impact on people's health, and also on their productivity So those are some of the things that are really important to think about in terms of what's the actual cost of this conflict. And if we don't reserve a resolution early, what's the ongoing costs going to be? So there are three things to think about there. There's the cost. And then there's the element of control. The longer something goes on, the less we're in control of that outcome. And the cycle time, how long is the overall cycle of resolving this dispute? And those three things that cost control and cycle time, all fit together? So finally, early dispute resolution. So we start at the top of the escalator with dysfunctional conversations, and we end at the bottom, how do you stop the escalator? And how do you escalate a conflict? And what if you could catch that conflict at a much earlier stage and resolve it using mediation? So just this week, I have interviewed someone who's really inspired me in my career, and that's PD Villarreal, who is a senior corporate lawyer has worked for many large organisations, and he was actually instrumental in putting in place in the company, he worked for GE, the an early dispute resolution framework. Now, the idea with that is that everybody in the organisation, particularly the litigation team, are absolutely committed to identifying the earliest possible stage that a conflict or dispute could be resolved using mediation. So it's an early dispute resolution process to which everybody is committed. So I'll just finish off by telling you the words that PD Villareal had, and he said, really, you know, in a classic legal firm cases and mediate on a crisis basis, and the opportunity now is to find a better way where you can measure the benefits of resolving conflicts early. He said that we're now entering a new world where there'll be more conflict, fewer resources to waste, and that we really need to urgently rethink conflict resolution. So my closing comments, I think, are that I have always believed but I believe more than ever now that mediation truly is the tool for the 21st century for 21st century businesses, that it makes much more sense on a legal on a social on a business, and even on a human level for businesses to be investing and understanding the process of mediation, how they can resolve conflicts really early and have a actual commitment to early dispute resolution. So that's it from me, I have a handout which I've made which is available through RGB. At the end of this webinar. If you've signed up, you'll be To get a copy of it, how to win at mediation. And I just like to finish by saying, I think every conflict should be an opportunity to move from conflict to conversation or from dispute back to dialogue. So thank you very much for joining us today. And I'm now handing over to Michael COVID.


Thank you very much, Jane, for that. Very good talk. Our second speaker is Michael Cova. Michael is also very experienced, he's mediated over 260 mediations, he's a creditor of a seeder and ADR group. Recently, he has been accredited as an investor, state mediator under exit. So Michael, over to you.


Well, thank you very much, Tony. And welcome, my welcome to all our participants, some of whom are in far flung places around the world. I was just sitting here waiting to come on. And I realised in fact that I'm surrounded by various symbols of conflict just up here on the wall. That is my late grandfather's entrenching tool from the First World War. Over there, which you can't see, my late father's badges from the Second World War, and in front of me is my late grandfather's on my mother's side, badges from the First World War. So if we ever needed a reminder of what happens when conflict gets out of control, those I feel are rather good symbols. What I wanted to try and help people with is choosing the right mediator and getting the process right and really looking at what might be different, not just in the current COVID-19 world, but also what might happen when we start to return to some kind of new normal. So if we go on from where Jane left off, we get to Well, you've decided on mediation, and you need to select a mediator. And then the question is, well, how do you do it? Well, lawyers who do it all the time probably have their favourites, or they have people they say after a trainee, solicitor, they asked that trainee, quickly draw up my list and draw upon me a list of mediators. That said, it used to happen in the fairly recent past. But basically, you still face a decision about whether you read something directly, whether you approach a provider or a set of chambers such as us, or whether you go to an institution. Now, the pros and cons of the various different routes, obviously, in the involvement of a third party such as an institution that may well increase the cost. And on the other hand, I sometimes think that having institutional rules can be very helpful for parties that are not necessarily used to mediation. Just under a year ago, I made a big dispute in the UAE, that was done under the rules of the DIFC lcia. And that's the Dubai International financial centre and under COVID international arbitration outfit out there. And they have a set of mediation rules, which was a very good roadmap for me to explain to the parties how that process works. There are others who have rules like the World Intellectual Property organisation, why pay and the Chartered Institute of arbitrators, for example. So if you know what you're doing, it may well be and everybody knows what they're doing, it may well be that the ad hoc approach is the best one. But nonetheless, that is the choice that you face. So you've decided to go one route or another and perhaps the provider or the institutions provide you a list of two or three mediators and you then face a choice about who you go with. Now, one of the debates is whether you want a specialist or a generalist mediator, one of my former colleagues, who was a very experienced litigator, head of litigation at what was then Charles Russell, my last firm. He always said that, if you had a weak case, then he always wanted to a generalist mediator, and if you had a very strong case, then he wanted a specialist and that's, that's one way of looking at it. In the end, it probably really doesn't matter very much because Anybody who really is worth their salt will actually know what they're doing and be able to turn their hands to any kind of dispute. So, the next thing is to look at what stages we've reached, which Jane has already set out. And I


look at the line as tensions leading to conflict, then you get to something more formal a claim, once the claim is rejected, you have a dispute, and then you have litigation or arbitration. And then you have to look at what is the conflict resolution or conflict management framework in the contract? What does it provide for and very often when I'm approached, I ask the question, well, how did you get to where you are, and sometimes it's not entirely clear. Of course, if litigation or arbitration or litigation in particular is already on foot, then then the parties may have incentive whereby the court would grant a stay in order to allow mediation to take place. So you have your list of mediators. And so what do you do next? Well, what is what does happen all this, but is, is actually a very good idea is to our den is to actually interview the potential immediate and ask he or she what their general approaches, how they would organise things. And then to find out how this module works. Again, that's not something that necessarily happens all the time. But I think it's extremely desirable, that you actually know that you already know that it's, that it's when you walk into the actual day, if you're having a mediation, that that's not the first time that you had some contact or actually even seen the mediator. Another thing too, which is increasingly important is to look at whether dispute funders are involved. And when litigation funding was a festival, and I think people thought it was going to improve access to justice for ordinary people, but actually, what it turned out to be is the complete opposite. And litigation funders tend to have billions of dollars to invest at their disposal. And what they tend to do is actually to go to large corporations and actually to take over the funding of all the major disputes. So that's quite, not quite necessarily how it turns out. Now, in this pre mediation phase in our current covid, 19. environment, it's also going to be important to find out the institution or the or the provider actually has experience of, of doing a mediation, virtually. We've now got a lot of experience with the zoom platform. we're not the only ones; plenty of other people had an alert went down the other day, rather embarrassingly for the government at the five o'clock press conference. But large touch points and touching my table. We found it to be pretty reliable. I think the largest zoom meeting I've been on, had 71 people. Currently we have 43 people on this one, we're using the webinar format, but for mediation, you would use the meeting format. And you then set up breakout rooms and you can move you can actually go in and out of virtual breakout rooms and move people in and out and set up your groups. And Martin has a lot of experience with that. Zoom is pretty good on support. And Martin has also even attended webinars on running webinars, so it's the more that you practice, then, the better you get. I also wanted to look at that cost. I think we are going to see a lot of pressure on cost. There was a report the other day that some 70% of high street law firms might go out of business as a result of what's happening.


I'm unsure of the decision of what's going on in very large law firms, I would imagine that sometimes departments are going to be very busy and other ones, not necessarily going to have very much to do and be interested to hear if anybody's got any knowledge or experience of how many people that larger law firms have have gone on furlough. But I think we are going to see more and more of these virtual meetings, we're going to see people, less people go into offices, we hold our chambers meetings on zoom. So what what may happen from now on is that we have a possibly hybrid model where you might have somebody, some one party with the mediator actually physically saying the idea RCMP streets in London, and then the other people on on zoom, now whether or not that's gonna be satisfactory, because if everybody's there, then you're all here on a level playing field. If some people are there virtually, then perhaps it's not so much of a level playing field. I've previously done a US UK mediation, where I was with one party in London, and obviously, we had a breakout room there as well. And then the other party in the States was actually on a video conference, and it worked, total tolerably well, and obviously, the technology has improved a great deal, then, since then, I think preparing for the actual day of mediation, or days of mediation is going to become increasingly important because people who don't have experience of these various different platforms, and there are other ones. I had a meeting on Google one the other day, which wasn't quite as good. But there's also Microsoft Teams, which appears to have a limit on the number of people that you can actually have once it's nowhere near as effective a problem as zoom. But preparation and rehearsal. May, it certainly is increasingly important. I'm sure that those of us who are including Jane, and Tony, who are also mediators, will say that very often the parties are strangely and underprepared. And when judged in international mediation competitions, no doubt, because the students are incentivized to actually prepare properly, because that's one of the criteria of the marking, they tend to be rather better prepared than people in real mediations, but getting used to the technology is going to be very important and having practice. But the other thing that we may see is that actually the what I call the and, you know, I mean, it's very supportively, that kind of see to one day classic model of mediation may well change. Because if you don't actually have to have your body there physically, you can dip out, dip in and dip out. We have colleagues who have done meditations on zoom. And I think you can probably only manage about an hour and a quarter of the time before you have to have a break. You can't just sit there looking at the screen and go in and out of the virtual breakout meetings. And it does open up the possibility of actually, you can dip in and dip out, which would be much more like the classic family mediation model. And would be an excellent way of making sure that people don't get too tired and fed up with each other and that you make reasonable progress. I think so. Thank you, Tony. I think that just to sum up, we'll have to wait and see what's going to happen. Everybody talks about large disputes. And you don't have to be a genius to see that. That must be a huge head esteem building up in the healthcare sector where there's all all kinds of claims arising out of COVID-19 and indeed the the


consequences of COVID-19 where people perhaps aren't being treated for diseases that have already been diagnosed or should have been diagnosed and worse. So the long tail in healthcare claims in this country is almost is Always is already unbelievably high billions. So that's going to add to it. And I think maybe it is time for the government to do something in that area. And perhaps we have to start thinking about mandating mediation in some of these sectors. Because if you can mandate adjudication in construction, I don't see why you can't mandate mediation in certain other sectors, and it seems to work well in construction education, it might shouldn't work well in other areas. By mandate mandating it I mean, it's not compulsory. It's only absolutely compulsory. It's it's, it's mandated to the extent one party chooses to go down that but then the other one has to go with it. Just I took part in a webinar the other day where we were, if you really want to go right to the top, the next best place to enter the market. And there are outfits like Opus to some of us, some of you involved in arbitration may have come across them as taking transcripts, but they can organise, you know, your supersite virtual meetings of and running transfers and all sorts of things. If you really want to go that far. I think one of the questions that we all have to ask ourselves, this is a bit brutal, is it? Do we still have a business? What's this all going to look like in six or 12 months time? And I'm not sure that I really have the answer that but I think that as inauthentic as James suggesting it's worth considering striking while the iron is hot, getting rid of as many disputes as you can, when we were going to have a face to face seminar in March, one of our speaker, named speaker was going to be the head of disputes Airbus. And his philosophy is apparently to get rid of disputes almost at any cost. And no doubt, that's what they did with the corruption investigations that they were able, although half pay out a huge amount of money, they were able to move on. And they didn't have that one, how many of them at the same time as the COVID-19 effect on the aviation industry. And we've seen this morning that Rolls Royce, that's the engine part, rather than the motorcar bit, which is up the road for me where I am, is going to make nine and is consulting about 9000 redundancies. So we face a rather uncertain world. Thank you, Tony.


Thank you very much, Michael, very interesting talk. Now we've got 20 minutes to spend on questions. We have the results of the two polls just to tell you about those. The first question was about the increase in interest in experience of increase in disputes. And some since locked down. 68% of people who voted 28 people voted, said they had not experienced any increase in disputes since locked down. So we are perhaps in the calm before the storm. So we'll, that's an interesting answer there. In the second poll, we asked about your experience of virtual mediation in this period. And again, 28 people voted 78% have not taken part in a virtual mediation. But 22 per suggesting 22% have if I'm interpreting that correctly, that might be about seven of you who have actually been in a virtual mediation in the recent period. So moving on to questions. We first of all have a question from Kate far now. Thank you very much, Kate. And it's to Jane, from your image showing the conflict escalation. At what point would you say that intervention stops being proactive? And is it more reactive? Ie, we the clients are less in control of the situation?


Oh, thank you. That's a good question. Um, I guess it's a spectrum, isn't it? Really, you know, so you're much more in control at the top and less in control at the bottom. And I guess what happens at the bottom? There's two aspects to control. I think there's the emotional aspect. Are you in control emotionally because once you've got to that stage of I'll go into the abyss, even if it takes me down as well, that's you've lost control of the emotional irrational side of it. And the other side is, you know, to what extent are your decisions being controlled by, you know, the whole group of people that you've engaged as your advisors, rather than just yourself. So I think the answer is not a simple one. But there's a spectrum of control that runs with that escalator, which is partly about, you know, how invested Are you in that saving face part? And what extent are your decisions being controlled by others? The other thing we find very much in commercial disputes is that we might have someone who comes to a mediation, who has authority to settle. But that authority is very much determined by someone who isn't in the mediation, perhaps somebody that you know, their board of directors or their higher authority back in their organisation, and they themselves are not in control necessarily, of what they decide in that mediation. Thank you for that question, Kay. It's something I'll probably post a blog or a LinkedIn post about. It's an interesting one.


Thank you, Jane. I've got a question from John, right. And the question is, given the cost savings achieved by holding a virtual mediation, do you think that this will become the preferred method of mediating in the future? Or will the advantages of face to face mediation still take precedence? Thank you, john. And I'll put that to my cough to begin with, and no short game would also like to comment, Michael.


Thank you, john. And thank you, Tony. I think that it depends how much we get used to this. Perhaps this Navy zoom will be the new norm. I mean, if you can have a virtual drinks on zoom, that is the no limit to perhaps there's not. But if you look at how we communicate and John's much better at this than I will be, then it is not your apps, the words, you're actually saying a very small part of it. Now the next thing is tone, in ascending order. Now you can obviously get some of these tones by zooming in. And then the third thing is, his body language. And I think once you get used to it, you can have a pretty good idea of body language, talking or body language, I've just moved my glasses. But if you notice Boris Johnson, when he's doing question time, which I assume he's going to do a bit later on in about two and a bit hours time, is always fiddling with his pen. Now, if I was fiddling with my pen, or digitally with my glasses, which you can, you can see that. The other thing that you might say is, well, I can't see who else is in the room or just outside the room. But you can't always do that in a mediation anyway, although it was an arbitration, same kind of thing. I'd, the other day, actually asked the claimant if he could bring his wife along. And there was all sorts of stuff about confidentiality. The other side said, wouldn't, wouldn't agree to that. So I said, I'm terribly sorry. But she really can't come. So I went to see them. Say hello. And I said hello. And amusingly enough payment today, just considerably since his pictures on the internet. It was then his business, which confused me enormously. And then I said, Hello, I'm Michael Gerber. Who you He said, Well, I'm late. He said, Well, I'm claiming that he really shouldn't be here. I suggested before I tell them, it's fine. So there are there are times even when you have face to face mediations and short term appears out actually you find people there who who shouldn't necessarily be there and one occasion and insurer said, Well, don't tell the other side that I'm here when I said when you're sitting in a glass fronted office, they're going to see you I know who you are, they probably know who you are as well, because your solicitors professional, indemnity, underwriter, and all claims handler. So when I went back to see him and he got on, which was which, that was that was the result. So I think the answer to the question, John, is, it depends what the new norm becomes really how comfortable we all get with this. This one communication path when we all go back to going back to the pub, then we will perhaps think zoom isn't such a good idea. What do you think, Jen?


Thank you, Michael. I love and hate zoom in equal measure. I mean, it's enabled us to continue working to continue with mediations to continue with meetings. I honestly feel as someone who loves face to face contact and you know, going having coffee or lunch with people that it doesn't replace, face to face contact at all. There's something about being in a room with someone and you talk about body language, and it's not just reading the body language, but there's a sense of something that you get from people and that there's research being done on this and I'm very keen to do some research myself is what is that visceral sense that we get of someone else when we're in a room with them when we're all in a room together. So my thinking is that zoom will look for some mediations particularly where parties would have had to travel a long way, they'll say it's much easier. We don't have to travel to London, we could all do it by zoom. The other thing I'm really keen on is my preparation for mediation. And you talked about this, Michael, is that if we did more pre mediation work, we'd be better prepared for the mediation during I've always felt that. So perhaps the pre mediation phase could be done on zoom with a shorter face to face meeting if parties wanted that. And again, this idea that we might, in some cases, replicate. And I've been doing this in workplace mediation for a long time. The idea we have phased mediation, that you have several meetings over a period of time, can work really, really well, in some cases, and there's no need. The reason we tend to shoehorn it all into one day is because everybody's giving up their time. But if you could have many meetings and spread it out over a slightly longer period of time, giving people time to sort of go away and think and reflect on some mediations that could be really effective. So I think what we'll see in the future is this kind of blended approach, with people being given a choice. But you know, my sense is that for many times, it would actually be helpful for people to be meeting face to face. And that's what I would prefer. Right?


What about the situation where you might have a party who says, We will only attend by zoom, but the other party wants to mediate with physical presence? Would you?


Well, there you go, you've got another conflict. So there's always issues. I mean, only one party wants this media yet the other party wants this mediator. So as you know, there's often a pre mediation before the mediation. It's just something that we're going to have to negotiate, I think, and, you know, weigh up the pros and cons and try it like we do with every disagreement understand why why does one party prefers a human, the other one prefers face to face, it is going to add that level of complexity, I suppose in some cases.


I've got a question from Anthony Fincham. Michael, I mean, it's, it's on the same point, really. He says he's interested in your observation that the benefit of virtual mediation is that you can more easily pause and resume what John was talking about ending. Do you think something to be said, for scheduling a virtual mediation for sessions on different days in quick succession to allow for that?


Yeah, well, thank you, actually, it's a very interesting point. Some years ago, I was cross credited as a family, mediator, family, and how many business mediator and the way that that traditionally worked was that because it tended to be very emotional, that you scheduled meetings of about an hour and a half, at two week intervals, and he wrote them up in between. And that's, that's the way that you got through it. You had meetings with both, then with both parties, they're both partners in the relationship. They're no lawyers. And that's how you did it. And then they move more towards the conventional commercial model of having private meetings, and so on. So I think there's a real opportunity perhaps to, to spread things out and actually to put people in a pressure cooker for a day. And basically, when I was trying out about uj, we were taught, don't let them out. until they've settled, and I've, I've gone through as well, we've all gone through, you know, not so much recently, but it still happens, the last train, the last train goes, so nobody's got no incentive to go anywhere. And then the first train starts up the next morning, you know, I've done one or two of those, and it's pretty tiring, and maybe you might easily make mistakes. So it's an opportunity, that should have a different way. Also, I've always thought that what I call the master model of mediation is very good, which was what Bill marched for. And he mediated the dispute between lady Porter and Westminster City Council. And he could have done that by zoom now, because basically, Lady Porter didn't particularly want to come back to the jurisdiction because she might be locked up. So he went and visited all parties, and then they had several days of mediation. I don't know whether it was all in one go but a neutral venue, I think it was Brussels, and they were resolved it in the end, that you could do all that much more efficiently by zoom and it's really a matter of what the parties want, or perhaps more importantly, needs. So if you know, one can now be rather more flexible and at the same time perhaps rather more cost effective.


I've got moving on to another question. For both of you, I think it's from Eva Adele. And she says, I cannot agree more with the idea of early conflict resolution. I do find that people founders are resisting the idea of using mediation, often if it's conflict with a co-founder or employee, they think that the easiest solution is parting from that person. Instead of resolving the conflict, how can we change this? It links in with a question in my mind that so often the defendant wants to leave the potential defendant wants to leave the question of resolving the dispute to a much later stage, wants to see whether they're going to the claimant has got the courage to litigate. So Jane, do you want to try and answer that?


Yes. Thank you for that question. So he was talking about co-founders, and I guess he's talking about sort of partners in business. But the same is true in his sort of employment setting or boardroom setting is that often people are in a conflict, and they don't want to raise their hand so they let the conflict run on. And sometimes that's because there isn't a process within the organisation that recognises a kind of mediation process, they've either got this to make a statement and leave, or they've got their usual grievance and complaints process as part of their HR system, but there isn't a system or a process within their organisation that recognises mediation or facilitation of dialogue as an early stage. And so there really is a huge opportunity for organisations to do to recognise and to build in six part what I'm talking about an early dispute resolution is building into the culture of the organisation so that the organisation supports and recognises mediation in all of its stakeholder relationships, whether that's with employees, suppliers, customers, and so on. And that can have huge benefits. Michael, do you want to come in on that?


Perhaps it is just an observation that the earlier that you get a grip of these things, the better. And a lot of the time, if we let's look at major projects, the largest thing that I was involved in, that I've been involved in so far anyway, was the admin for a tram. And on the face of it, the problem seemed to be lots of holes in the ground in princess street in Edinburgh. But actually, when one kind of dug into it a bit one realised everybody hated each other. The pub, the local council, owned a company, which there was at that time, hated the contractors. And there were lots. You know, there were a lot of them, and the contractors hated the council. People didn't hate the council itself, the head of the council's people. And this is all in the public domain in the way that that was resolved to mediation a week. They spent a week in a hotel, smart hotel summer, and they resolved it and the project was completed in its first limited form. And they're now looking at, if they're not already, they're going to expand it, but it was all down to the people. They all hated each other and actually talked about taking the people out of the problem. What happened was that the council owned company was abolished and the council took on direct responsibility for the town itself. And much later, as a lunch and otherwise rather boring lunch. I bumped into the head of the consultant, I said earlier, what do you do? And he said, Oh, I'm doing so and so. So he'd obviously left as well. So picking up these conflicts at the very early stage and dealing with them is hugely important, because I'm sure Joe will agree. And even the largest commercial sphere is 90% of the time at least there's going to be a very strong personal emotional element. It may not be as strong as everybody hating each other, but it's quite possible. I've worked on projects in Eastern Europe where everybody hated the employer's representative. And despite the fact that this unfortunate individual was discovered by the contractor drunk with his car in a petrol station actually was held. So we didn't really get much. That didn't really help very much, even though it was a great kind of good samaritan act.


Thank you. Miko. We've got time for one one last question. I think it's quite a technical question from Kevin McLean. Do you have experience of using vocal pitch analysis with zoom to make up for the body language signals that can be missing from the camera change? Want to try and answer that?


I will answer that because as well as being a mediator, I'm a professional speaker and I belong to the professional speaking Association. And we are very much aware of our voices, but I'm becoming more aware of how my voice has to compensate for body language over zoom. And so it's something I'm actually looking into is being able to have this analysis and learn more about using my voice more effectively in zoom meetings and zoom presentations. So it's an important point, I think, I'm not sure it makes up for body language, I think there's something that our brain is picking up from body language. But I think in terms of being communicators, it's important to be able to understand how we're expressing ourselves vocally as well as in person.


Thank you. So, Michael, do you have anything to add on that? No, it's an I wasn't aware that you could do that, actually. So that's an interesting idea. I've got a final question here from Mr. Boy, a show. Thank you for the presentation. I think it must be emphasised to parties during mediation, that it is a win-win process, which I'm sure we all do. Also, mediation is party driven. So do we need their counsellors to be present during the virtual session? So what is your experience, Shane and Michael have the presence of the counsel and legal advisors during virtual sessions?


And I don't currently have an experience of whether they would or wouldn't be there. But I think it you know, I think, with every mediation, and what I would say is going to be more important in zoom mediations, or virtual mediations, is that you do this planning. And I'm always in favour of planning, of preparing for the mediation with the parties with the lawyers and deciding who will be there and who's necessary in each meeting. So, you know, in an ordinary face to face mediation, we often have meetings between the parties only, perhaps between the lawyers only, and perhaps a little bit more in a little bit more planning about how a virtual mediation would actually take place. And obviously, it saves costs if the cop or counsel aren't there for all the meetings if they don't need to be, I call. Do you want to add anything to that?


I'm not sure that I do. I think it's always a balance that the lawyers have to be respected. And as I often say, sometimes the clients find that the lawyers sometimes the lawyers wind up the clients and sometimes they wind each other up. But often, one or other of them, or even both of them get over invested in a case financially, emotionally, or whatever, and you have to kind of talk them out of it. But one has to do that with unfailing courtesy and patience, and that basically means not excluding anybody. So it's a voluntary process of mediation and people can bring along who they like unless they're people that the other side dislikes and actually want them excluded. So in a way, the more the merrier. Right?


Thank you, Michael, and I think we can now bring our webinar for close. We've got a final comment, which I like says technology from a poor roster, technology is changing faster than can be seen. Son of zoom links directly into attendees brain, there's a very thought to finish. I would like to thank you all for attending the webinar, and thank you speakers, and then we'll close proceedings now. Thank you very much. Thank you very much.

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