“Mediator's New Breakfast Club Recording - 20th January 2021”
Guest Speakers: Oliver Richbell
“These transcripts have been automatically created. We apologise for any errors and will correct names etc. if we are alerted to them”
Okay, I think it's time for me to introduce our main speaker, Ali, Ali rich Belle.
I'm not quite sure what to say about Ali.
First of all, first of all, he's a very, very nice man.
Secondly, I consider him to be a good personal friend, as well as a mediator.
And some of you may know that he's a chip off the old block behind him is a photograph of unfortunately, his late father.
David rich fella who was what was one of the very leading lights and early lights in mediation.
I did two of my first assistantships with David. And he was extremely good. Although I have to say neither of them settled. Sorry, Ollie.
So over to over to you all, if I may.
Thank you, everybody, and welcome to everyone. So great to see so many new first time attendees. fantastic to see us all. And I hope that we're all well, and keeping safe, and hopefully we'll have an interesting 45 minutes or so. I'm sure but about the DRP. Formed in 2015. As a former litigator,
David and I, dad and I came together and talked about early concepts of dispute avoidance, how can we help businesses avoid the rigours and still trade, stress and test of litigation, court based disputes or just general disagreements, and along the journey of the DRP, we are super happy to have a number of consultants will Frankenberg as our as our shake, Stephen hold David Evans and Ian white. And together, we all wrote a manual, how to if you like, or a little guide, that we personally called volcano insurance, but I'll explain that in a second. And that was published in May 2020 by urbane publications.
It's very simple. The DRP passionately believes that it's better to avoid a dispute than resolve while
avoiding a dispute can mean less financial outlay dramatically decreased management time.
minimised if not eradicated risk, and a far greater opportunity for repeat and expanding commercial opportunities.
So this morning, I'm going to be talking to you all about dispute avoidance and the immensely positive impact assisted dealmaking can have on the preparation and negotiation of commercial contracts. Hopefully, I'll be encouraging some debate, and hopefully some collaborative engagement about the topic and the concepts raised today. But before I begin, I think it's only right that we express thanks, as always to Dave, Dave Oh, in Martin Poulter, and Michael Cobra for arranging yet another big breakfast club event online.
As well as obviously, my thanks to you all for joining. And I think it's a testament here to everybody that we are, you know, we're able to have these events and they can continue, and there is a particular and as they ever were before, and obviously I hope that that sooner rather than later, we can all meet in person. Again, I think we'd all agree that we are wonderful thing. But given the time is slightly tight. And we've got Paul Adams, Martha Clark and the CMC announcement at 10. What I'll, I'll try and be ready for that. But I think it's probably appropriate that there's still a bit of time for questions and discussion. So rather than wait at the end, I think it's probably a really good idea that we get everybody giving me a standing ovation now. Just make sure that we don't miss out on that opportunity to say thanks for a wonderful talk. So if you could all show your hands and give me a clap. That'd be amazing.
what it is to be able to conduct spontaneity, I think that's that's a wonderful thing to be added to.
Thank you, everybody, even stop now.
So today's more focused on commercial disputes, not family or workplace, not because of any other reason, then simply I don't have the skill set or experience in those areas. But I do hope that what I have prepared, while focused on commercial matters, still have some and I think it does relevance and crossover points to think about and digest. I'm sure the concept of dispute avoidance and volcano insurance does have some applicability in those areas as well.
So, assisted deal making and preparing collaborative contracts. The third Step in effective dispute avoidance and resolution. I think it's fair to start with what is dispute avoidance.
dispute resolution is, of course, a term we all are aware of. But dispute avoidance is perhaps something a little less less well, no, it is coming in. And it's beginning to be referred to but it's by no means even close to an accepted phrase
is perhaps a little like the slow creep of the language change from commercial litigation, to commercial dispute resolution to dispute resolution. And I've been long enough in the game to have qualified into private practice as a commercial litigator. So I think that the, the language is changing, it's just not an overnight click of the fingers one, but I think it's coming. So dispute avoidance, and I do include, throughout this morning, the terms conflict avoidance and risk avoidance interchangeably. So when I refer to dispute avoidance I am including conflict avoidance and risk avoidance. But the DRP and its consultants consider it to be a rather simple and obvious concept, or at least,
we believe it to be so that it's that dispute avoidance is the concept of avoiding, or at least attempting to avoid an issue or disagreement escalating into a dispute event. Where then litigators, lawyers, barristers experts, become involved. And then of course, ultimately, adjudicators, arbitrators or judges then become the primary stakeholder or determining a dictated outcome, rather than the parties to the contract itself agreement or relationship being control of their own future and outcome.
No, of course, I've not included mediators in that while the lengthy list because the DRP, and its consultants, see an absolutely endorse the need for the use of mediation. But of course, to mediate the dispute, there has to be a dispute in the first place.
And of course, I'm talking now about the general dispute resolution ADR mediation process. So I'm suggesting and it is, of course, only a suggestion that dispute avoidance is a concept or notion of far greater an earlier mediation or outcome focused discussions than waiting for traditional appointment by lawyers of a mediation at some point, say after filing of application questionnaires, or an estate has been put in place. So in essence, dispute avoidance is naturally and quite obviously focused on prevention, rather than a remedy.
Natural naturally, it's not appropriate to refer to a typical mediation scenarios, dispute avoidance, dispute management, for sure, and dispute resolution as a certainty. But after all, and when all is said and done, it's better for the commercial client, and indeed for the protection of ongoing and potential future business relationships to avoid a dispute and to manage or resolve one.
A constant driver here is that the parties when a settlement has been reached, often declare, should have done this sooner. So dispute avoidance will hopefully be one of the golden thread through the rest of this session.
But please, if there are questions as ever, just feed them through the chat function, hopefully, there'll be time to pick them up now, particularly as the as the evasions got out of the way. So that's dispute innovations in an absolute nutshell. But as for volcano insurance, it's the insurance policy that no one thinks they need.
Until, of course, the dispute event as erupted. So volcano insurance is intended to assist in the understanding and buy in if you like, that there are actually a whole host of processes and options in place and readily available by not using the tried and tired systems of old when dealing with commercial contracts and agreements to both prevent early conflict and protect communication at the start and to create long lasting relationships, and all before any volcano or dispute erupts. That's ultimately volcano insurance. So the concepts of dispute avoidance and volcano insurance are all about early and collaborative engagement, focusing on the very start of a commercial relationship.
Everything when all is said and done is about relationships and how a positive one will create and engender an atmosphere of collaboration, engagement and understanding from the outset. And even when a dispute arises. The risk of such an occurrence causing permanent damage to the relationship is far greatly reduced through dispute avoidance and the focus on effective relationships and dialogue.
David Oh or dad to me would often declare that you work with what you've got. So applying that if you've got a relationship based on collaboration, engagement and understanding, then communication will be easier, even if difficult conversations are required, thereby avoiding risk and conflict and avoiding a dispute event, rather than managing or resolving a volcanic eruption esque dispute. And this will clearly save a lot of time and a lot of money.
So assisted dealmaking is not a new phenomenon this, Charles Middleton Smith, and Ed Moore, who I'm sure many of us will know, talked about this in an article in the international Bar Association newsletter back in 2002, in 2007, so 14 years ago,
but the DRP sees assistant deal making or deal mediation as is often interchangeably referred to as a neutral or mediator being retained by both sides, and working between those contracting parties, teams and subsets if they're required to help maximise a structure and a timetable for the negotiations over the detail of the agreement.
This will create a culture of collaborative engagement and understanding in relation to the discussions and as a direct consequence of final agreement will be a solid and free from the dreaded imbalances or desire stir to get them back next time or
which would, which normally pervades the corridors of core. As those litigants search in vain for justice and someone to see the case from they're often inherently biassed viewpoint. So the use of assisted dealmaking techniques, when the parties were at the discussion, negotiation stage of a commercial relationship is absolutely vital, and is truly the first stage of dispute avoidance. And it's also a solid application of volcano insurance. So it's about getting it right from the outset. And that's really what dispute avoidance and the concept of volcano insurance is focused on
a well drafted structured commercial contract is the cornerstone of modern business, right? That I'm pretty sure we can all agree on. But, of course, well drafted and structured might not necessarily mean the same thing or positive impacts for the commercial parties, right. But without a contract, or set of terms or conditions or agreement that's fit for purpose, and satisfactory qualities for the contracting parties. The scope and propensity for issues to arise and disputes to act is massive. It's perhaps even more alarming than that, actually, it's probably probable or not just possible, the parties to a contract or set of terms or whatever, that are not fit for purpose will be involved in disputes and litigation, before their commercial relationship concludes. I mean, ultimately, what is the point in that?
So most commercial disputes, but accept not all contend to be traced back to the contract and the terms or breach or non compliance point. Or if you like a dispute event arising from that agreement.
So commercial parties to a contract, lean to agreeing broad arrangements and then allow the lawyers external, mainly, but that some companies have in house
and then they pull over the the items and add the detail in right. Now, I'm not talking about every deal here. I'm not talking about the multimillion pound contracts, or indeed a few 1000 pounds ones out there. I'm talking generally. But it occurs to me that the tired and tried lawyer approach of drafting versions back and forth, back and forth, back and forth, Track Changes everywhere and you know, change drastic whilst important, it cost does beg the question important for whom? Now, most of the businesses just simply want the agreement done as best they can for sure. But get it done, get the contract going get the goods or the service or the transaction on the money flowing. They don't necessarily want to be subjected or stymied by protracted contract negotiations over the main issue. Now, of course, it could be argued that for sure lawyers are absolutely vital in concluding the fine print devils in the detail after all right? But they must not one the deal or more of what the past is understood into an overly complex, sometimes argumentative and simmering agreement which has no volcano insurance protection.
dispute avoidance, providing to it either. Engagement is everything, everything.
Engagement means far more than just communication, of course, the engagement of the parties or as I'd like to reframe the word parties now into partners. So engagement of the partners to the contractor, the agreement needs to occur from the very outset to effective communication and a focus on delivering, maintaining, encouraging collaborative relationships and negotiating intelligently. This will only lead to a finalised agreement that reflects in a far more balanced fashion, the commercial intentions and needs of the partners, and not necessarily the drafting preferences or lawyers.
So if the partners are not actively engaged in the conclusion of the final written agreement, just say the initial headlines, and the rest is left to the lawyers or accountants or technical experts, then there's a real risk that the final term presented for signing does not actually reflect the genuine aims or initial intentions of the commercial partners that the partners may have agreed in the very first place.
It could even be the case, but what he's prepared was correct in law is utterly at odds with what was expected. And this does not start or even bode well for anyone. And so worst case scenario, you've got a dispute right there and then right, you've got a final commercial agreement that either won't get signed, once I feel so aggrieved that they look for any excuse to get one back, we'll get them next time, you know, down the line, any of those situations, and probably several others to,
you know, a genuine and possible reality. And that's not dispute avoidance at all, it is dispute creation.
So, of course, I accept, it might be that those sorts of circumstances that I've just talked about, are most likely to occur when one business or one side is unrepresented and has with the belief that it'd be far more cost effective for them to allow the other sides of a pair of documentation, or perhaps where one businesses presents its standard form standard terms, is their normal agreement, whatever. And in a haste to move forward, the fine print has not even been jet reviewed, understood. So don't even read.
This, in my experience, occurs far greater in the construction industry than any other. So you get a main contractor pushing subcontractors, you know, they enter into terms,
you know, and all the subcontractor I know has a has a sub sub contract with with their subs. And it's a rush to get going, you know, secured or work, you know, maybe even based on the promises of more work if this one goes well, so they don't look at things like the warranties or the indemnities, or the programme dates, la these Kant charges, payments, firms, retention levels, and so many more things. And they're not just taking notice, or they're just sometimes not even acknowledged. And again, this this is just setting up everyone or every partner potentially up for a dispute or event or volcanic eruption. And this is most definitely not dispute avoidance, and it's more akin to dispute creation,
except, again, that the equality of bargaining positions between the parties who are negotiating or preparing a contract is not that common. So again, in a construction industry scenario, a subcontractor is often more likely to have more adverse terms imposed on by the main contractor. And of course, in turn, the main contractor has probably got onerous terms in play imposed upon them by their employer. But in this type of situation, where it's less of a buy, sell transaction, the actual engagement of the part partners in the drafting and formation amending negotiation finalisation of the contract or serves is just so fundamental, in order to avoid the occurrence of a dispute event that it has to be the focus of the parties. And of course, we know in the construction industry again, that there's the traditional suite of JCT contracts right here the joint contract tribunals, and was used up a nominal amount. The actual mechanics are times and only at times stressed out, so heavily amended with changes to articles and words being deleted and replaced or clauses being substituted, etc, etc, etc. that often that the original
JCT can end up being a pale shadow of the versions placed before the partners.
a practical example of this if I could just briefly and it occurred late last year, the DRP was approached by a subcontractor and it's unnecessary successfully won a contract with with a main contractor.
We'll call it design and manufacture and installation of certain construction items. So the agreed contractual price was a little over 10,000 pounds. And the subcontractor was set to make 20 25% margin max absolute max, the main contractor sent over their standard paperwork and it was it was almost 125 pages of documents, ranging firm methodologies, health and safety risk assessments, etc, etc, etc. as well as obviously a JCT subcontract design agreement.
But that agreement had page and page and page of a men's you know, were placed this word with that replace this clause with that not applicable this clause over here, this clause over there, take this out, add this in, etc. and a subcontractor was mine later to blindly sign as often is the case and return it and that's of course, their commercial decision and their business prerogative.
But one of the questions posed to me very early on was Bice Why is it meant to be a standard agreement when there are literally dozens of pages of changes? And the margin for the subcontractor on a 10 grand contract was between two two and a half grand so yeah, Max, absolute max. That's nice money, right. I think we can all agree that's that's good money. But after a brief discussion with the subcontractor, it was established, that attention was set at 5% payment terms or 20%. against the main and then a very convoluted payment process thereafter, based upon the main contractors programme, and led liquidated ascertained, damages were stated to be three grand a week on cat.
So short synopsis of what happened later was that the subcontractor was able to discuss adopting basic principles of assisted deal making do mediation, and and also property dispute avoidance. But they raised a number of points with the contractor, the contract openly admitted that they're just sent over there their standard term standard docks. And ultimately through the process of collaborative engagement. A fairer and more balanced agreement was concluded, the project and a subcontract works proceeded with no issues whatsoever. There was absolutely no residual resentment and as an important phrase, and the main contractor placed earlier this year, on similar terms to the one the final ones that were agreed, a much larger order with a subcontractor everybody wants.
And that naturally focuses the mind, or at least my mind, on whether template agreements or bespoke ones are better for the partner for the partners in relation to dispute avoidance and deal mediation.
So there's no settle thought about whether it's better to use template agreement or draft from scratch. Most of what the partners actually need is infinitesimally small, compared to what advisors assert is paramount to include.
I accept again, that there's absolutely no doubt that a contract is always going to be more detailed than what the partners would consider that they actually need in the first place. And it also be accurate to advance the point agreements have been, you know, prepared and signed without legal input, or advice can often lead to disputes over the interpretation and formation far more quickly than than if lawyers have been involved. So all agreements need careful deliberation, for sure. But it's neither prudent in terms of commerce nor law, to expect one contract to be a perfect and exact fit for another, even if it appears to be identical.
It's also not sensible commercial practice, in my opinion, to sign a contract without first understanding it. But those but both of these occur regularly and cause partners to become involved in disputes that could and should have, frankly, be avoided in the first place.
And of course, it's important to talk about the accepted practice or be again, not always that the boilerplate clauses the set of non operative provisions in a contract are often drafted and review the standard, dragged, cut, paste move on and align principle is nothing obviously wrong with accepting the principles of the boilerplate terms to be included. The Alliance on standard draft is rarely a productive meeting.
So, for an effective and commercials and successful long term relationship, it certainly doesn't fit with the concept of dispute avoidance. Right?
It could be argued, and I think probably successfully so that a partner who accepts the other side's standard terms and conditions in order to avoid opening the proverbial can of worms does so at their own peril. Many businesses want to avoid legal the legal minefield of contractual obey and the travelling draft that I referred to earlier. However, the simple reality of the situation is accepting a terms of that with your consideration may lead to a sense of injustice, because they seem to be one sided, and they'll only tend to expedite the escalation and inevitability of a dispute event. Again, that's not dispute avoidance. That's, that's dispute creation.
And of course, it's easy for a partner to be wistfully reflected, right. with hindsight, the pouting how unfair and how staggered they were when a contract sign and accept is exploited to the others advantage. And courtrooms are filled with litigants demanding justice and fairness. But these equitable remedies are not always going to be possible as the courts have declared, there's not their responsibility to protect commercial parties from a bad bargain.
Prevention is preferable than it is in the past is long term interests if they work together in a collaborative and open way with regards to the formalisation of contractual terms, and that's where assisted dealmaking ideal mediation comes in.
I mean, there's always going to be occasions during the such discussions where elements of disagreements occur. But it's important to hold on to the fact that conflict can be positive, provided this approach in a pragmatic way and presented in a not in a non hostile manner. You know, the phrase of you know, raise raise your argument, not your voice, deal mediator here is expertly placed to ensure that any such occasions do not adversely affect the outcome. And that conflict, if it arises, is managed proactively, or that partners are able to avoid creating a point where effective communication breaks down. The deal mediator can also assist the parties included in concluding a final agreement, there's not only going to stand the test of time because it's been negotiated in a in a collaborative and engaged fashion, through assisted deal making and the use of the deal mediator. But also it's going to stand the test of rigour if it is a big if an issue or dispute or disagreement arises.
So it's just a male assisted bill making. negotiation I'm sure we all do this.
You know, negotiating a deal is something common to all businesses, the essence of what business people do most, if not all the time. However, it's not necessarily true, that simply because you've experienced negotiating, or you've got experience in negotiating, you'll get the best result or even that you're any good at it.
There are many factors that go into a good deal for assisted deal making. And perhaps the most important is that there's a balance between the position of the partners.
As we know, the traditional parties, personal point of view is set out to confer the best arrangement for themselves right, often failing to recognise the position of the other.
This is the much talked about positional negotiation.
And it's probably quite natural. But it does not necessarily lead to the best result for it allows impasse, to develop in the negotiation, as each side scrambles for their position to be accepted. And indeed, many negotiations fall down because the partner is not refused to recognise the needs of their counterpart.
The tide the tide and tried, you know, salami slicing approach or playing hardball is not conducive to anything other than dispute creation, where such deals are made, they often and they are often assessed and treated as a dispute waiting to happen. So the use of assisted deal making a deal mediation can help partners recognise the needs and interests of the other partners. And by doing so, this will make better, more collaborative, more engaged and longer lasting deals. So the method of dispute resolution, so the method of do mediation and the role of the dealer do mediator has a lot some a lot of the same attributes and characteristics as a typical mediation and the mediators role. But of course,
Bear in mind, there's not been a dispute event. So as mediators, many, I'm sure you all will actually recognise many of the following. In relation to deal mediation, helping the partners to move from position and negotiation to interest based considerations, clarifying issues and interests and in particular, each other's needs.
Breaking down obstacles, dealing with smaller issues one by one, reality testing and fat checking positions, you should collaborative language, changing the balance of risk and reward sharing,
helping to frame the process made towards the structure of the final deal, instigating working groups and to deal with specific issues as they arise, taking strategic breaks and allowing cooling off periods if need be.
Identify and potential solutions to break deadlock. And obviously, the last one for seeing trigger points and structuring positive processes deal with potential conflict situations. But as for what specifically, a deal mediator brings to the table,
each side to a commercial negotiation with historically and frankly, naively manage their risk and look for the personal benefit, by regarding the other was an opponent. This attitude and negotiation creates distrust, doesn't create any sense of collaboration, engagement or understanding. And again, it's more akin to dispute creation, and that's dispute avoidance.
So when the deal mediator, so what the deal mediator provides, is assisting in the addressing of the issues or deal points, if you like, or mechanics for an objective and neutral position.
The deal mediator creates a realistic and pragmatic view the other partners position and intention. The deal mediator can also provide the partners with a structure and timetable just isn't a commercial dispute. Of course, partners can be briefed beforehand on what is needed to be prepared for in the negotiation and what will be expected. And this will include a framework in which parties are encouraged to incur to collaborate and engage on their needs and objectives in a constructive proposal that benefits and secures the overall agreement.
Within this structure, of course, the deal mediator will work to facilitate a collaborative agreement that is readily unwillingly acceptable and agreeable to all the partners.
That's all known to all mediators on all of us here today of reality checking will support the partners in moving away from positional negotiation to more interest based considerations.
The deal mediator will engage with the partners both jointly and separately, to establish the relevant contribution and best outcome for the final agreement. And if need be, also create sub teams working groups to focus on specific points.
And this is quite an interesting one, the deal mediator will also be able to gauge the strengths and weaknesses of the people present and determine how best to utilise interpersonal relationships. And this helped the partners to create effective negotiating negotiating teams, and to set realistic and achievable timetables and agenda items, and to assign a role for specialists, including technical experts, accountants, and of course lawyers.
The structural framework put in place by the deal mediator with engagement from the partners is a major major element in agreeing an effective and successful conclusion. And of course, safeguarding dispute avoidance.
So the structure of the deal mediation will involve roundtable meetings, of course, and private meetings, you know, and it might be necessary to have private meetings in order to fact check or reality tests and so on. But there is value in the deal mediator challenging the partners and the do, you know, more than perhaps a mediator would in a typical commercial dispute. As the deal mediator can make suggestions for consideration, and further discussion as to potential outcomes as well as of course being creative in suggesting alternative or hybrid structures for the partners to further consider and discuss.
The challenge for the deal mediator is to balance what each partner considers to be a fair portion of risk and reward, but through the deal mediator and the momentum can be energised. And hopefully, and I believe this a truly Win Win outcome can be achieved.
The deal mediator can also engage the partners and indeed their advice.
is over collaborative negotiations and discussions in relation to the boilerplate provisions. And of course, he's right there to talk about escalate escalating dispute resolution clauses, you know, the inclusion of of a bespoke escalating dispute resolution clause often offers that extra level of volcanion insurance in a very, very unlikely event that an issue or dispute, that sort of issue or a disagreement turns into a dispute event.
The advantages of having these discussions or deal mediation stage is that the partners can collaborate and engage over a pre agreed set of processes to avoid a dispute event and to prevent if you like the volcano erupting.
So the basic principle behind escalating dispute resolution clauses is is to resolve disputes. You know, that's, that's not such an alien concept at all. But the use of them isn't mainstream, either. I mean, I personally prefer them to be called tear dispute avoidance clauses. But as ever, that's as a classic way you frame.
But it, it often makes me smile. Well, it's queerness, really, that that some contracts that have a dispute resolution clause in it just cites the jurisdiction for legal proceedings.
But a tiered dispute avoidance clause agreed by the partners in a deal mediation situation would prevent the absurdity that I'm sure many of us can recall or be aware or have heard of, where warring parties want to dispute the dispute resolution clause itself.
And moreover, I think it's utterly nonsensical, but sadly quite common, that a boilerplate dispute resolution clause actually has no practical benefit. For example, the classics have a clause that cites the use of arbitration, but the contractual concept is so minor to make arbitration completely and utterly prohibitive, or where the arbitration clause doesn't provide for a stay in the contractual programmer signing table. Or another example would be where JCT contracts say, refers to adjudication, despite it being a right under statute and therefore bound in any way.
And also, that would be a classic example of an opportunity lost for the use of a mediation clause. And I think we can all agree here today that mediation is the most party focused method of dispute resolution.
But if the JCT is used, and a dispute emerges, and people creep over to where they might have discarded the signed copy, having forgotten about it, and they pick up the amended clause nine, and it cites the banal, but often quoted and used, a party shall give serious consideration to a request by the other to use mediation. I mean, it just seems completely ineffectual and lacking any semblance of practicality to me, or maybe they'll be unlocking. And they'll have a clause an amended clause neither decrees arbitration or adjudication, which, of course, as we know, on the scale spectrum of ADR processes is certainly the imposed end. And that neither seems sensible, or a one stop auction to embrace the any degree of collaboration or engagement or common sense, compared to the use of deal mediation in the first place. And also, of course, the rapid availability of mediation genuinely.
So I believe that it's of paramount importance that the partners work together on this carefully and suitably worded tier dispute avoidance clause to make sure it really is fit for purpose. And the partners understand what's being agreed to, and the why of why they're agreeing to it. And everyone has agreed to the dispute avoidance process.
dispute avoidance clauses include a number of what step processes, and I've just referred to that as a dispute avoidance process. But again, that's DRP and consultant re frame, but such processes include good faith partner led discussions, expert led engagement, and then if need be a form of mediation, but all of this can be operated and undertaken on a pre action stage, ie before legal proceedings have been issued, and hopefully before they've even been contemplated. And of course, lawyers, counsel, technical experts can be utilised, if need be at this mediation in the normal way. And also there should be no limit on the amount of cheer dispute avoidance clauses and the use of it. And the distribute avoidance process can be used by the partners during the term of the agreement for as long as they need to for as often as they'd like to.
Not just a one stop your we tried it once Let's move on. Shift the dispute avoidance process or tier dispute avoidance clause as being worked through together and realistically And sadly, there are no
Guaranteed in life. But the odd zone of a volcano erupting and causing irreparable damage to the relationship through dispute escalation or litigation should be as negligible as it possibly could be.
And the DRP passionately believes that no business starts a commercial relationship looking for a legal battle line, all the dispute event. No one buys property next to a smoker, smoking volcano do that right.
Partners should be involved at all stages of the dispute avoidance processes, they need to assess, assess the risk, if any. And the partners will remain intrinsically involved in the decision making process, because they're the only ones who can decide if the risk is were taken. And of course, they'll have understood the other party's position based on the earlier comments relating to collaboration, engagement and interest based considerations. But perhaps most importantly, the dispute avoidance process or tier dispute avoidance clause enables the partners to be in control of the outcome. And that's an integral part if not, if not the critically vital one of securing effective and genuine dispute avoidance through deal mediation.
So assisted deal making in preparing collaborative contracts, is truly dispute avoidance. And if it's done effectively, through partner led engagement, there's no reason at all, why there should ever be a volcanic eruption of God. I mean, note that lawyers, accountants, technical experts in House Counsel wherever all have a part to play in assisted dealmaking and their collective and individual inputs will be vital to secure long term progression of the relationship after the agreements being signed, and of course, assisting the partner in preparing their best points.
Best points course is so much more than leading with the strongest point. These points or best points have to be persuasive and stress tested, and presented appropriately. An ideal mediator can help in devising those bespoke structures and forums for such discussions to occur openly and freely. Such an approach is far more likely to encourage greater collaboration and a coming together or closing of the gap, thereby leading to the effective outcome that the parties ultimately desire. Right, a balanced collaborative agreement designed for long term profitability and success based around shared interest based opportunities. Add in the overall protection that volcano insurance, which of course is manifestly focused on preventing a descent into the perilously uncertain were waters or litigation, and you're looking at a truly Win Win contract that will benefit all partners. And that can only encourage future commercial relationships, partnerships, and shared opportunities for expansion.
It is fair to say that there might well be disagreements or rubbings or differences if you like. And it'd be naive to suggest that every contractor pair through the deal mediation is going to be all skills and rainbows but adopting a collaborative engaged process at the very outset getting it right from the start in the contract preparation through assisted deal making and the use of a deal mediator there's no reason at all why anyone has to get aboard the you know the litigation gravy boat
because the balance and the collaboration and the control of the parties on the terms and the outcome and as well as the the engagement there of advisors is going to break the tide and try it one upmanship, an escalation and really offer dispute avoidance, not
dispute creation. I mean, nobody wants to be reminded, I'm sure nobody wants to be reminded of Voltaire's comment regarding legal action.
I was never ruined, but twice once when I lost a lawsuit and once when I want one.
And Voltaire says you know, simplistic view wings choose it Did you know now he didn't the 18th century litigation in any guys in any guys, wherever it's carried out in the world and whatever for them rarely brings the benefits or, and often comes at to greater costs for the lifted a litigant party's
judicial process while claiming to ultimately lead the determination disputes traditionally leaves both the successful Party and the losing one, ultimately dissatisfied. It's because the parties have turned the dispute and the decision over to a third party to preside over and even direct representations to that judicial entity have been curtailed through barristers and solicitors and
Experts controls God, control the outcome is utterly gone as as control of the process and of course control over the costs in time of and money As long gone to.
Ai, it's worth saying that the costs of litigation, of course, not just the costs of the litigation itself or the arbitral process. Now, there's lost opportunity costs, they've got to be added in costs lost on business relationships, management, employee time, or preparing the case, by version of resources away. reputational cost if the case is newsworthy, uncertainty over the share price is relevant.
And there's little, I don't think there's any debate actually, the contentious litigation destroys relationships, robs businesses of vital resources.
And that doesn't even address the personal emotions, right? The stress, the anxiety, the Worry, worry for your job. Why for the outcome? You know, maybe even if you win, you know, is it gonna be a positive outcome? Can the other side pay? No, can they afford to will they either, this kind of apprehension and fear cannot be conducive to any type of positive or progressive relationships. So the use of dispute avoidance techniques, namely here and assisted bill making, is therefore providing the parties the antidote before the poison has been taken, okay. Or it's the volcano insurance before the action occurs. And candidly, who doesn't want that?
When all is said and done,
that what was said, and done will still remain, and the need to win or to be proved right for yourself, your company or your peers. Often now, I'd say for the lads down the pub, but you know, that's not going to be happening for a while, sadly, but the impact on the future is, is so negative, positive relationships and effective lines of communication are damaged beyond repair, often, during the heat of the battle. Too often litigants declared on never do business with them again, or I'll never talk to that person again. And the Pollak polarisation of viewpoints or legal arguments, or even the stances, adopted by the lawyers will always widen the dispute gap. But if the parties were to accept that their actions attitude and approach could dramatically transform the dispute into one that is avoidable in the first place, then the outcome that will be achieved, will be more cost effective or not harmonious, rather, being left with what's being said after the event. And imagine just for a second, what the benefits for everybody if what's left, and what's being said, it has been said positively or collaboratively in contract preparation for assisted deal me do mediation and adopting dispute avoidance and phrases to use like,
I can't wait for the next time we can do business with them, or I've got someone you should meet
with. So when arguments and disagreements First of all, like the volcano, if there had been a deal mediator present versus to deal making, the odds on fact, is that the Spirit would not have escalated to where it was, or at the very least, a dispute avoidance process, though at this tier dispute avoidance clause was in would be in place to stop the irretrievable damage of a volcano eruption.
So, the desire to claw back what was said or what was done is natural causes, but it's traditionally quite a private emotion, right? You know, I wish I'd never started. This is a commonplace sentiment during the rigours of a litigation or, or a heated battle, but actually, privately offered it, but I'm sure we've heard this hindsight, I'd have done things differently. And that applies readily to all forms of disputes, for sure, not just legal cases. And it's often the mere handful of, of events or statements or actions and sometimes just a solitary one that created that dispute events did this view event all the volcano eruption, and it's impossible to stop it once it started, right.
I've never experienced words. I wish I'd never started this. In relation to dispute avoidance or the collaborative prepared preparation of contracts. I wish I'd never started. This is a phrase I've never heard when I've talked about the spirit avoidance or deal mediation or assisted deal making
everything as I said earlier, when all is said and done is about relationships.
How a positive one will always create an atmosphere of collaboration and facilitation. And even when a dispute arises or an issue,
adopting dispute avoidance, and in a commercial context utilising deal mediation, they really should be no dispute events.
So it's just a deal making and preparing collaborative contracts will provide the partners with a sustainable, achievable, a long lasting commercial relationship.
And particularly, in these times, that's got to be a positive force. And then the inclusion and with the inclusion of dispute avoidance, and a dispute avoidance process, or volcano insurance, if you like.
That will be a consideration for all and it perhaps offers the simplest of things.
The benefit of hindsight beforehand.
Thanks all very much for that. I think we we started a little later than we expected for your good self. So I think we've still got some time for some questions, if that's okay with you on a course it is. Absolutely. I was watching the clock a little bit unconscious. I don't want to step on, on Paul and cmcs toes, but yeah, absolutely. Okay. What I'd like to do is to invite anybody who's put anything up on the chat, to repeat a question if they if they it has already been covered. But can I can I throw one in early please?
I'm usually often involved with construction disputes, as you are. And there's the concept of the project mediator in that where there's a mediator appointed right at the beginning, which which who sees the whole project through, attends a design team meetings, attend site meetings, and is there then primed and up to speed when any any problem comes up? Do you see Do you see the prospect of the deal negotiator or the documentation mediator going on to do the same role? you thinking about what you're thinking about conflict? Potentially? Yeah, yeah. I mean,
it was a question that I was expecting. Dave, I wasn't expecting it from you. But all right. Apologies. So I
think i think that's that's an interesting one, because I think as mediators, we are always concerned or not concerned, conscious of perceived conflict, because the impartiality of any mediator in any form family, workplace, commercial construction, whatever is is one of the the absolute bedrocks of a successful mediation. And, of course, if one side has any thought or belief that there is an imbalance of
neutrality, then that can not be a good day. I think you're absolutely right to talk about project mediation. It's great. It's not used enough, though. For me, I think it's very it's
it's very much a case by case basis. I think it's it comes down to the relationships, it comes down to the communications. But again, it's also about whether the conversation has been had early. Right. It might be seem to be having a difficult conversation early, as mentioned, in the short presentation I just gave, I think if if there is a
an engagement, and it's happened too late, then I think the mediation would probably stand aside. But that's probably more a professional opinion, a personal one. I'm sure many others would, would disagree simply because, you know, they know what's in the station, they covered if you like, right, they've been involved, they know what's going on. Why spend, you know, X number of hours on money or whatever, when getting X to get up to speed what I'm already up to speed, but again, I would I'd encourage that situation, again, on a step process adopting that sort of tiered avoidance process or tiered avoidance clause. I'd encourage that to be in there openly, honestly. And if there is any perceived, and I think it would be perceived, imbalanced, then the mediator should do the do the right thing and step aside, but that doesn't necessarily mean that they still can't be a role for that original project mediator, but I think project mediation is a really interesting concept. And it's, of course, very akin to what I just talked about it in relation to assisted dealmaking. But again, I mean, you work in very much in the same industry as I do, mainly the construction when it's not as used as often as you think it should be right now. Thanks, Ali.
So can I invite anybody who's put anything up on chat? What as a question if they still want to ask it live as it were? idea? Yeah, pay me just continue on what you were talking about the project mediator, which is a new term for me. And obviously, I've worked out in the Middle East quite quick.
And obviously, the the DAP or the DAP, whatever, whatever you would like to call it would would take on that role. And although you talked about conflict, or just trying to understand, if these guys are engaged at the start, they they normally go through
the whole project, being engaged and proactive early. So I think it's an actual good thing that they are so familiar with the project that they snow, potential disputes on the head, if you like.
And I think it's a great thing. Also, another point I would like to ask you about is, I think within the mediation, particularly within the ADR regime, I think there's a lack of education. Would that be a fair point, and that people don't understand fully the benefits of
bringing a dispute or potential dispute to the legs of a mediator who can, again, cut it off at the pass? And, you know,
retain business relationships? That's what it's all about, at the end of the day. reduced costs. Have you any thoughts on not only labour? Great question, and nice, nice to see, and thanks for joining today.
Absolutely, I love that phrase, you know, cutting off at the cutting off of the past, you know, offering a different route. And you're absolutely right.
You know, mediation has been around a long time. Now. You know, America in the in the very, very early 90s first came over here 9192, when, when when data many others were
were first trained and Sita was formed. And obviously it's it's coming to the to the to the huge industry now. And I think we're all educated knowing
purchasers knowing the absolute benefits of mediation, but still use talk to particularly in the construction industry, as you talk about the the Oh, no, no, no, no, don't mediate. No, no, no, no, my lawyer says or I've never mediated or worse, and we've all heard this, I mediated once, six years ago was a complete disaster. I'll never do it again. You know, and I think you're absolutely right to talk about education. And that's one of the great things about the mediators, new Breakfast Club, because it's continuing to have these presentations will be online at the moment. But it's people talking about the concepts and the, the the growth of the industry, and hopefully, and this is a personal opinion and accepted as an absolute personal opinion that as an ex litigator, you know, you know, the the role of the lawyers in determining the when, and the why and the how of a mediation sometimes I think is adverse to the parties, the mediators, so the lawyers know, a great deal about mediation, and some are pros, some are anti, some will use it as an advantage, some will use it as a good, good data and some good fees, preparation time, etc, etc. The education that you talked about has to be with the partners, as I call them, all the contracting parties. That's where the education needs to happen. They need to realise again, construction, but it works for any industry, I think that they need to understand that there is a process and whether you're laying brick, or whether you're supplying phone parts or you know you're mowing grass, wherever it is, there's going to be potentially a conflict or an issue or Rob or disagreement down the line. So let's get it in place. It is volcanium insurances thing you might never need. How many times have we all heard, particularly again, construction, no need for contracts, this one's gonna work on time on budget, everyone's gonna make a fortune every time every time and you just look at them and go, Okay, I love I love it. I love the passion. I love the belief. But could we just slip in this little clause? If we don't need it? Brilliant. But hey, if we do need it, it's there. And that's part of the education about dispute avoidance, the use of mediation dispute resolution, dispute management, da B's, as you mentioned, and, and one of the consultants, the DRP. Wolf is is a big proponent of da B's dispute avoidance boards, and unfortunately the Asian a dado in use, but again, it's the if you don't need it, well, hey, what do you got 1000 other clauses that no, you don't understand warranties or indemnities or, you know, collateral warranties and all of these things that people pretend they pretend they understand them. They don't, but they go in the contract. Why not?
Put a tear dispute avoidance clause in which you know, and there, it's there. And hopefully you'll never need it. But you know what need is there. And that part and that's the phrase about education you so right to bring it on, cut it off at the past, have it there is offering a different way. And it's a great question. And I thank you for thanks for your response.
Ali, forgive me if I could ask a question. a different question from the one I put in the chat. morning to you, by the way.
Why do you think assisted deal mediation wasn't used for Brexit?
Well, there's, there's a question. I mean, why wasn't mediation use of Brexit? I mean, yeah, yeah, it wasn't, you know, I mean, we we won't stray into the various politics of x, I'm sure people have got different opinions. I know, obviously, we've got we've got colleagues from, from Northern Ireland and from the Republic of Ireland, but, um, I think, Why wasn't it used? I mean, it comes back to Lynn's point about education, and commerce points, the fact that actually, I don't need to, I don't need to be taught how to negotiate and negotiate for a living, you know, yeah. And I think, you know, the lack of education, the lack of realisation that he wasn't going to be smooth, you know, calm waters, I think. I mean, I wasn't there. But I mean, the after the referendum, it's funny, actually, it's funny, you bring it up. I was I the day, the Thursday was the was the referendum, the Friday I was I was down giving a
giving a talk on our mediation
at an international seminar down in London. And of course, it got there and nobody was there. One, very few people there. And no one was really paying attention, because everyone was talking about Brexit. And I, and I remember, when the when the referendum result was called very, very late. And they're all very early in the morning. I was watching it, you know, sat in bed, and I elbowed the wife and said,
we've left. My wife's response was, could you leave quietly?
So I remember talking about an opportunity for mediation that very next day, not part of what I intended to speak about at all, because I didn't think we'd leave but personally.
And so many people nodded, and they talked about mediation, mediation is so ripe for this. And it could have been, it should have been a huge team of mediators. It wasn't used, but I think assisted deal making and the concepts of it, but even the concepts of mediation should have been utilised during those horrid and protracted Brexit negotiations. But as I said, as I concluded with the presentation I've given right is the benefit of hindsight beforehand. So always 2020, isn't it? It's always 2020. And now we're in 2021. And I think, I think it should have been used Personally, I think it would have added immense benefit. I think there could have been a huge number of talented mediators, not just from the UK. But of course from Europe, of which there are 1000s and 1000s were hugely talented mediators, that the discussions and negotiations would have been far better and far more collaborative and probably probably a bit quicker. If If mediating and mediators and assisted dealmaking and so on had been utilised. I think it's probably a regret. But that's a personal opinion. But it's a good question.
Thanks, Ali. I just mentioned it because maybe there's some commonality with what you've been discussing in the sense that maybe at least one of the parties involved or partners or should have been actually perceived they get a better outcome. Some might consider they did get a better outcome. But of course, we know that the real outcome is in the future and the level of trust that remains when other issues crop up in the future. But burden that's absolutely spot on, isn't it? That's why that's why the mediators are here today. It's why you know, there's you know, Davao has got a list of hundreds of people. That's why there are panels and which you're you're a member of many excellent ones. And I think Vernon, you're absolutely right, that, that that's where the mediators and the mindsets and the people who you know, have their first time. First time join us here today talk about, you know, I absolutely see the benefit of it. And one of the chaps talks about I mediated a neighbourhood dispute and you know, and that's a real it's a real real example of living and breathing, a proper dispute, one that you wake up with every day, whether it's a boundary dispute, or workplace one or commercial one, of course, family one. And I think you're absolutely right, the engagement of mediators using the skills that we have all have, could have and should have got a better deal for everybody and therefore it would have actually mean that
The future whatever the future may be, and of course, it's difficult to talk about it, though. And of course it is in these funny COVID times that we're in at the moment. But who's to say what would have been? But I think I think you're right. I think I think absolutely hindsight is 2020. When when people got a shitty use mediation, why didn't they use mediation, but of course, they started, they started, in my opinion, they started slowly, they started badly. And the negotiation position, never really got going. But I think if they'd operated a project mediator that they've already talked about, or sees the deal making, or just got a suite of mediators into talk, then it would have been could have been, perhaps should have been a different outcome. But Brexit and mediation, I think is a topic that we could all talk about for hours. And I think, hopefully, I'd think we'd all we'd all agree that it should have been used. I mean, it might have been used in might have been used. We don't know, we weren't inside those rooms, right. It might have been used. But again, it could have been an example that we all know Verdun, you know, our use mediation six weeks ago, six years ago, it was a disaster. I'm never doing that again. You know, and we know that that doesn't fly. That doesn't work. You know, good question. I don't think it was used Dolly.
You're probably right. I mean, probably know more than I do. But, you know, with your, you know, with your red line phone to, you know, to downing show, but who knows, I'd like to think it was used, but I'm pretty sure it probably wasn't.
And I think we've got about another five minutes before we hand over to Martha Clark. So maybe time for two or three at the most, or questions or comments, please.
Hello? Yes. Hi. All I wanted to see was that yesterday was some announced that there was a new regulator for the building straights out of the terrible terrible Grenfell situation. So I think that what you're talking about being really, really intelligent about drawing up contracts that, you know, work for both partners, also would have more than a note to the fact that nobody wants to get in trouble with a regulator that's actually going to have some teeth this time around.
I think, I think you're right, I think that, um, I talked about it a little bit, you know, the worry, the fear, the anxiety of being involved in any situation, and
without, you know, one heavily regulated or whether it's an unregulated or, you know, a disputing you might have had in the classroom, of course, or, you know, a dispute you might have had with a member of senior leadership team, you
know, a difference of opinion. And I think that the often, the way of taking the first step can stop you taking any step at all. And that's when inactivity can actually cause the dispute event to actually occasion far more quickly than if a difficult step or that difficult conversation was owned or taken. And I think that's where the use of mediation techniques, us as mediator, mediators, officers, project mediators, or assisted deal makers or whatever you want to call us. We're family, employment, workplace or education, whatever it is, I think, sometimes the, the paralyzation of fear will stop any momentum towards a mediation or collaborative discussion, where facilitated discussion actually taking place in the first one, and that just extends the life of the dispute. And of course, the longer the disputes go on for unresolved disputes go on for there is a terrible lean towards the demonization of the other side. And that there is a protect a projection of
all of one side's issues, woes, financial difficulties, whatever it is, on to the other. And again, that's where the use of mediation particularly mediation, genuinely and the soft skills of mediating and mediators that we all possess,
could have been employed then, but as for a regulatory point of view, I would like to see, you know, regulators being far more proactive in the use of dispute avoidance, early mediation, not allowing it to start going through, you know, arbitral or complaints or legal processes, but that again, is is you know, is something that I'm sure all of us all 68 or 69 of us on this call would probably agree with, but I think it's a good point you make a very good point.
Thanks, Ollie. I think
We've got time for one more comment or question, please.
Anybody? Dave? It's Michael. Yeah. Yeah, I was just gonna say that. Thank you very much. And thanks to everybody else for attending.
But one of the promise we've got here is that
the politicians and their teenage Scribbler, advisors don't get any of this. They don't understand the value of what we might call our industry, which is worth, on any view, at least a billion pounds a year to UK PLC.
They continue, we, you know, I've been involved in a number of initiatives, I'm sort of the rest of us have been knocking on the cabinet offices door, emailing Dominic Cummings, when he was in power, tried to talk to my local MP, which I succeeded in doing once, and so on. And the standard reaction seems to be that they're not prepared to invest in any of this. And if you look at what the World Bank and the other multilateral development bank's do with dispute avoidance, and adjudication boards, as they're now called,
you know, I think I think it's absolutely crucial. And clearly, public procurement is not going always swimmingly well. So surely any of this stuff is worth worth trying worth some pilots. And yet, there seems to be very little appetite for it, and very little progress. And I think it's a terrible shame. I just thought, Can I just follow up on that same to say that there's an all party parliamentary group on mediation, which some of you may have made, may have heard about, I've only attended two meetings, and one of them.
They were supposed to be three parliamentarians there.
But at one point, there was only one because they were called away for more urgent business. And the meeting only lasted about an hour, quarter and a half in the first place. Yeah, that's right, Dave, I've I've had been involved in a meeting with the Chartered Institute of arbitrators and john Hall, who runs that committee and the interest in, you know, for what is, I mean, essentially, the Brits, whether we're England, or the United Kingdom, water, we are on the day kind of lead the world, in this area in this industry, and it's complete failure on the part of the government and other opinion poor forms, that it's not recognised. And that comes back to the earlier point about the education. Yeah, but there's a big job to be done. I agree. Absolutely. The parliamentary committee that the de veau in refer to so Riley has been, you know, it's not a new phenomenon. I mean, it's been around, it's been around for years. David Dad, dad attended, and well, yeah. credibly. Frustrating, I remember talking to him. I remember talking to him afterwards, and he was, you know, and those the knew that knew David, or heard of him, you know, he never lost his call, but he used the word cross a lot. I'm cross I'm cross was, was a dad phrase. And he and I remember talking to him, and we were having a coffee actually not far from not not not far from from parliament. And he was saying, all the homes so close, they just don't get it, they just don't get it. They just, they just don't get it and cross and ice is more or less, let's talk about that. And they said they just don't see the benefits. And that's years ago, I'm talking about so we're still talking about the need to educate and I think you're absolutely right, you know, get in contact with, you know, knock on the cabinet door, you know, knock on the door, knock on your MP surgery door and talk to them about the benefits of mediation. And again, I'm not talking commercial yet, but you're right it's it's it's a billion dollar saving industry and power saving industry, the the money that, you know, mediating and mediators and mediations save businesses, okay? It's not going into the legal the legal coffers. Okay, well, has an opinion. Well, we'll move on from that. But it's such a benefit. It's can have, it can provide everything, whether that's COVID, or whether that's regulation or whether it's Brexit or whether that's in Japan, you know, the use of the NHS or, or interpersonal or inter party discussions? No, I would love to know. And, Michael, I have an interesting question. Out of the 650 MPs, how many are actually accredited or even trained mediators? Not many, I'd say. Now, there's plenty of those. So I should have been clear. I'm sure the savings are many, much more than a billion but the revenue generated by the UK ADR industry, leaving out what used to be flights and hotels and other things.
In other words, the fees to the people in the room. Ah, well, what used to do is a billion so it's revenue to the UK must generate a significant amount of tax revenues. From the one of the reasons SEO audits wasn't a mediation audits were you know, the cost saving was in the was in the billions? Oh, yes, absolutely. So the revenue to the UK PLC probably now exceeds a billion. Yeah. Yeah.
So, I mean, it's about so what why is mediation so
reluctantly used in the, you know, all being accepted or being, you know, mandated, really put through the courts? Just I mean, we've waited. I mean, wolf performs 96, access to justice 2009 1998 Irvine's report 2001. And there's been creeped since you know, the famous case have done it and well, tracking all Xia Mian keys and all the rest of it. And, and it's continuing to creep through. We've seen a lot of great posts on LinkedIn about, you know, what Alan Ward said when he was when he was on the court have appeared about mediation, and it's still still even now not accepted as a mainstream thing. I don't know what the blockage is. Is it the lawyers? Is it the law makers? No. Is it the fact that that there's a lack of general on education in relation to the benefits in relation to businesses? Or is it the fact that we've always done business this way? The business has been the company's been around 200 years, we've never mediated Why do we need to start now, that kind of historically myopic, and crazy attitude still exists today, Michael, and I think people are great. We've got to, we've got to keep pushing it. We've got to keep trying. I agree. I mean, a lot of it has to do with the fact that whether we're media arbitrator adjudicate or do dispute boards, it's all private. So it's not so much after it's quite difficult. It tends to be under the radar. So I think maybe there's an opening for you all in past day, we ought to wrap up and move over to the CMC. That I just say that I think there may be an opening for you here early as the mediation equivalent of Judge Rinder or reinder or judge shirt with so that's
Anyway, thanks. Thanks. Thanks, Michael. Thanks, Dave. I think you'll cross cross. Yeah, I'd like to thank Ollie again. And perhaps we can all meet on the way. Thank you. Thanks, Ollie. Thanks ever so much, everybody. I really, really enjoyed it.