Mediation for transgressive behavior in the workplace

In this article we show you how a mediator deals with transgressive behavior. We do this with examples and a step-by-step plan that will also be useful in everyday life.

An example of transgressive behavior

We did a mediation for transgressive behavior in an ICT department of a large company. The employee, a man of 40, had felt intimidated by his supervisor, a man of 50. He had reported this to the head of the department who had told both men that they had to go into mediation.

The employee said that he greatly looked forward to any contact with the supervisor because he did not know when he would explode again. He did not feel safe. The supervisor did not recognize himself in the story and was very touched by it. A yes-no conversation ensued that was clearly just frustrating for both of them.

Discussing transgressive behavior in a mediation

In such situations, the mediator can bring calm and give space to both sides. He then starts with the person whose boundary has been crossed and asks him to tell what happened using a number of steps.

Step 1: Event

What actually happened? The important thing here is to mention only observable things. Things you can objectively see and hear. So not, “he yelled very angrily.” Whether someone is angry is something only that person can know. What you saw was, “he started talking louder and louder and talked through me. His face turned red.”

Step 2: Thought

This is where your interpretation may be added. “I thought, he is very angry. I thought, what have I done wrong?”

Step 3: Feeling

Step 3 is about the effect this had on you. How did this make you feel? “I got scared and insecure.” Not “I thought he was stupid.” That is a judgment, a thought, that belongs to Step 2. This step is really about you alone.

Step 4: Consequence

What did you do as a result? What was your reaction to the event?

The mediator will write this out on board or paper and take time to tell the whole story while the other person listens in. The distinction between step 1 and step 2 is especially important; this is where things often go wrong. When you say to someone, “I can’t work with you because you are a sexist,” there is little chance that they will be able to listen and change. After all, that person does not consider himself a sexist, so your message does not make sense to him. When you tell very calmly what happened, the facts, not your thoughts and feelings about it, a common starting point emerges. So “every morning you say “good morning” to Hans, but to me you say “you look good again”. (Step 1) I then think “why does he do that? And it reminds me of other situations where that difference was also there and it ended up wrong” (Step 2).

If we manage to agree on the facts (what happened observationally? Suppose an alien is watching, what did they see and hear?), there is more room for improvement thereafter.

The mediator also listens to the other side

After the mediator has done this with one, he will do it with the other. The manager also has a story, an experience, thoughts and feelings. If there is no room for that, an unsafe situation arises for him and then you get the metoo-backlash: “you are not allowed to do anything as a man anymore!”. Nonsense, you can do anything as long as you take the other person into account. And you can expect the other person to be considerate of you.

This may sound like a lot of work, but it is not so bad. With a good mediator, this is two two-hour conversations, while the situation unresolved costs hours, days and weeks of illness, stress and sleepless nights. When the organization and the employees want it, this way the relationship and peace can be restored.

With the ICT’er and his supervisor, it worked perfectly. The ICT worker was able to explain well what had happened and what effect it had on him. The supervisor found that difficult to accept at first, it frustrated him and he felt powerless. And at that point, the supervisor started exhibiting exactly the behavior that bothered the ICT worker: he started leaning forward, talking louder, talking with his hands, turning red. The mediator named it and they both recognized it. The supervisor was then able to connect his feelings (powerlessness) to it, making it less threatening for the employee. And the supervisor was also able to understand exactly what the employee meant. They walked out the door stronger together.

Can all transgressive behavior be resolved with mediation?

Can mediation for transgressive behavior solve everything? No, of course not. We recently did a mediation where a manager had started an extramarital relationship with a colleague. The moment she (the manager) ended the relationship he did not accept it and started stalking her. This went so far that he knocked on her door drunk at night, where her husband opened the door. The latter reported the incident to the police.

Our mediator sat down with the director, the manager and the employee. It was a complicated situation in which there could also certainly be a discussion about who exhibited transgressive behavior: the manager, by starting the relationship, or the employee by stalking? In the mediation, the situation and the different sides were discussed. For the manager, it was finally established that both had exhibited transgressive behavior. It meant dismissal for the stalking employee and demotion for the manager (who a short time later resigned himself). So although a respectful conversation did take place in mediation, the boundaries had been crossed too far.

The other person’s perception also counts

In many of the “new” situations where mediation for transgressive behavior is used, it is about old norms against new norms. What was allowed versus what is allowed. And that is largely related to power. Who has the power and how does they handle it. Long ago, power was in the hands of a small group of nobility. Their norms and their perception was leading. That this was not pleasant for others was secondary. And this was also accepted by those others.

Now we live in a society in which, even if you have the power, you are expected to take into account the perception of others. And that perception may be completely foreign and unexpected to you. This is difficult and also makes those in power feel unsafe. As long as you keep talking to each other, for example with mediation in cases of transgressive behavior, a new balance will emerge.

Another example of mediation for transgressive behavior

Another mediation involved touching. The male director had been sued by a female employee for touching her all the time. This was transgressive to her and she called it sexual harassment. It WAS sexual harassment to her.

The director was unaware of any harm: he had been doing this his whole life, but, he added with a wink, “only with beautiful women.” This was meant as a compliment but fell (not entirely unexpectedly) completely the wrong way.

Before they could proceed together, two things had to happen: the story and the employee’s perception had to be heard and accepted by the director and the director had to get the feeling from the employee that she was not condemning him as a person (“you are a bad man”), but that it was only about the behavior (“I am bothered by that behavior”).

Again, the mediator went through an event using the 4 steps. This created the space for understanding. It happened gradually. There is not a moment when the button flips and they are completely understanding. No, throughout the conversation the tone slowly changed. And there were still some relapses (when the director made a “joke” or when the employee refused to listen to him), but after two 2-hour conversations, they could still honestly say to each other that there was trust again. And for them, “what doesn’t kill you makes you stronger.” Three months later, the mediator was in contact with both of them and they told that things were going well and that the atmosphere within the whole company was better as a result.

Result Mediation and mediations in cases of transgressive behavior.

We do about 1200 mediations a year and in all those cases everything comes up. Including cross-border behavior in the workplace. Our mediators share experiences and strengthen each other in dealing with these sensitive matters. You can discuss with our case management which mediator best suits your situation. This can be important. Therefore, it is also always possible to have an online introductory meeting with a mediator to see if he or she is the right person for your situation. And should this not be the case, we will simply continue our search!

How mediation helps in inflation adjustment negotiations

Inflation is higher than ever, so this situation is new

In normal times (with inflation in recent years), inflation adjustment was an important detail. Important, but also a detail. Employers could price increases with the inflation adjustment and employees could demand it for their salaries. People did agree. With inflation the way it is now, that is no longer so easy. And that’s nobody’s fault! We tend, when things are not going our way, to look for culprits. There are none, at least among employers and employees. Compare it to a flood: we all expect the government to maintain the levees and make sure we can live safe and dry. However, if a flood does occur due to force majeure (heavy rains, flood flows), you have to solve it together at that time. Then you cannot as a government say “we have done everything we can, we don’t have to do anything now” and as a citizen you cannot say “we demand a dry house, today”. You have to adapt together to the new situation and find the best solution. And yes, in retrospect you can see what can be learned.

Similarly now: inflation is here, which creates a new situation with problems and risks for everyone. In an inflation adjustment negotiation mediation, you will search together for solutions to all those problems.

This is how inflation adjustment negotiations go wrong

In this situation, it makes no sense as an employer to linger on “we haven’t agreed on an inflation adjustment,” and as an employee it makes no sense to linger on “I demand 13.6% wage increase due to inflation.” You may do that, but chances are it will be at the expense of the relationship, the company or your job satisfaction.

Imagine it: from the management comes a message that inflation is unfortunately not within their control and that they expect everyone to pull together. The Works Council responds with a joint message with the union stating that the inflation adjustment is an acquired right, because it has been applied consistently for ten years. The management responds with a letter, drafted by the company lawyer, that in their view this cannot be the case and that a weighty business interest prevents them from going along with this. The positions are taken, everyone is extra cranky and they achieve nothing.

How do you properly address inflation adjustment negotiations?

So how can you do this? In mediation in inflation adjustment negotiations, you will work together to find a solution that is as good as possible for both parties. You do this by going through a series of steps associated with Harvard Negotiation.

Step 1: Separate the people from the problem

Make sure you keep in touch. Sit down with each other (not via e-mail) and during those meetings talk about things other than just the problem: How are you doing? Did you do anything fun? How are your kids? Yes, you have a problem together, but no, that other person is not just that problem. That other person is not getting up in the morning to bother you. That image does arise naturally, because that makes it easier to wage war, that is programmed in us.

The mediator keeps “checking in” on everyone, sometimes ad nauseam: how are you? How are you sitting? How are you feeling? And count on that when you experience resistance from the other side again. In a negotiation, everyone is concerned that they will be “screwed” by the other side. That worry can cause people to flee (run away) or fight (become completely unreasonable). That fear and reaction is often not rational, but emotional. The mediator will make sure that you and the others know where you stand in it, which will make the intense reactions give way to rational decisions.

Step 2: Look for interests behind the positions

Talking together about the interests behind the positions makes more possible. So don’t immediately start cowering over 13% versus 3%, but talk about the larger themes: being able to make ends meet, security, business continuity, good cooperation, trust. Perhaps employees can contribute to cost savings in many ways or know how to sell to customers the price increase.

This conversation can be difficult at first. It sometimes feels unsafe to put your own wishes on the table in those situations: who knows, it might not be listened to or used against you. You can influence that by also listening carefully yourself and taking the other person seriously.

Step 3: create choices

In an inflation adjustment mediation negotiation, several options will be devised. For example, we recently did a mediation where three different options were devised in three different groups:

  1. An inflation adjustment linked to the company’s results
  2. A limited fixed inflation adjustment
  3. A full inflation correction with the possibility of a deflation correction should prices fall again.

After this, the parties parted ways and discussed the options with their constituencies. Eventually an agreement was reached on option 2. Precisely because the other two options had also been there, all involved were satisfied with this, after all, they had chosen it themselves.

When to start?

It is important to start mediation in inflation adjustment negotiations on time. So don’t wait until everyone is already angry and frustrated, until the first lawyers are involved and the Works Council is already threatening strikes. At that point there is already a lot of “collateral damage” that is preventable. You already know this conversation is coming, so get it right the first time. You also know it’s going to be a difficult conversation. The situation as it is now is not normal! There are uncertainties, risks and competing interests. These cannot be denied. But don’t let those lead the conversation! After all, there are also common interests, relationships and solutions. When the conversation is about these, so much more can be done in an inflation adjustment mediation negotiation!

Result Mediation and inflation adjustment negotiations

Our mediators guide these negotiations at every level: from the local construction company with 26 employees to the healthcare institution with 3,000 FTEs. Contact our case management and ask for a free intake meeting with a mediator. Together with the mediator, you will decide what is the best process in your situation. If the group is large, the mediator may bring a colleague to ensure that everyone is seen and a solution-oriented process ensues.

A workplace conflict often results from a lack of interest in the other

Felix Merks travels all through Europe, even to the European Space Agency, to resolve quarrels and conflicts. The core of the problem is almost always the same: a lack of interest in the other.

Result Mediation, founded by Felix Merks in 2004, is now the biggest mediator organization in the Netherlands. Annually, they resolve roughly 1.200 conflicts, primarily at large multinationals. ‘Conflicts are a growing market’, notes Merks (48). “Back in the day, people would stay at a company for 25 years until they received a gold watch. Nowadays people are more flexible. They also expect a more flexible attitude from their employer and if employers don’t deliver on that expectation, then they will let them know. Workers have become more empowered and this leads to conflicts.”

You are however not hired at the first sign of a disagreement, right?
“No, only after it truly gets out of hand. Often, this is due to a manager’s inability to deal with conflicts. Preferably, they would like to sweep any disagreement under the carpet and act as if all is well. This might work temporarily but sooner rather than later, it will blow up in your face. People will then start pointing fingers and look for someone to blame: also not a very constructive way forward. Why is this a problem? Because typically the work atmosphere combined with the context within an organization is the root cause of a conflict, not the individual that the finger is pointed at. But it almost always happens: The blame game. This leads to misunderstandings and escalation and before you know it, a legal fight. “

What do you typically see go wrong?
“Very basic communication. Essentially it comes down to a lack of interest in the views and the underlying way of thinking of one another. Let me provide an example: two weeks ago, I led a discussion in which an employee claimed that something was ‘untrue’. His manager, someone with 500 employees under his control, responded with: ‘So, you’re saying that I’m a liar? That I come to work to lie?’ You will understand that this kind of response, which unfortunately is not an uncommon way to deal with disagreements for managers, will result in quickly escalating conflicts. A better response would have been: ‘What makes you say that ?’. But in reality we see that it is very difficult to focus on the content and truly listen to the other party. If this effort to focus on content and truly listen is made you will most likely find that the other party has a different perspective than you. Together you have to make the effort to create understanding and resolve this.”

You also find yourself at organizations with employees from various nationalities. What happens there?
“Pretty much the same and more. People believe they are culturally competent because they went backpacking once or they’ve done an international internship which has resulted in having international friends on social media. So called ‘citizens of the world’ are a myth. A woman once told me ‘I am culturally sensitive and have an eye for mutual differences.’ When I pushed for a more complete answer, it came to light that she respected differences as long as foreign workers did exactly what she asked of them. This is a clear case of overconfidence. Once, there was a South American lawyer, who worked in Mexico for a large company located in the Netherlands. If you would ask this lawyer a question, you would receive a 15-minute-long answer, due to the fact that she would elaborate on the context before getting to the point. For her this elaboration is relevant. Moreover, this is the norm in her culture but it drove her Dutch manager so crazy that he wanted to fire her.  Working with her was impossible according to him. The lawyer kept receiving bad reviews from her manager, even though the Mexican clients were extremely satisfied with her work.

Are there also cultural hurdles within the European context?
“Broadly speaking you can divide Europe in two areas: “the Netherlands and Scandinavia use a consultation model: There is equality, little hierarchy and communication is direct. Starting in Belgium and moving south and east communication becomes more indirect and hierarchy becomes more important. Especially under pressure differences become clear and people fall back on their cultural blueprint which is learned in the first seven years of life. With a project deadline at an international organization approaching rapidly the Italian manager assigned tasks to the Norwegian physics professor. The Italian manager expected the Norwegian professor to start the tasks immediately:  Wasn’t he the boss? But she really wanted to first understand why she had to do this. That resulted in frustration and conflict.”

How can you prevent these frustrations?
“A culture competent organization has clearly laid out how it works: we do it this way because that, for us, is the most effective way. This helps prevent conflicts. And if this doesn’t work, at least it makes them more open for discussion. In Dutch organizational culture meetings are primarily used for sharing ideas or making collective decisions. At the end of the meeting, the outcomes and action points are usually listed in an overview and e-mailed to all meeting attendees. A Frenchman would find something like this unimaginable and feel as if he was being treated as a child. This makes him rebellious, because apparently you don’t think he can pay attention? But, if you clearly illustrate that this is the way in which your organization works, you can prevent such conflicts. Doing this is very important as it does not happen by itself. “

You advise organizations to have ‘equal structures’, with a ‘direct and explicit way of communicating internally’. Coincidentally, that I s what the Dutch are known for. Is that not chauvinistic?
“No, because this is the only way it works successfully in an international environment. Many research papers show this to be the case. If not at least one party communicates in this direct and explicit manner cooperation is destined to fail. The French see us as blunt and we think of the French as sneaky because they don’t call a spade a spade. Ultimately, we will come to an agreement even if takes some grumbling along the way. But a Frenchman with a Russian? Or, an Italian and a Chinese? That would become a clutter of implicit, indirect communication that in the end no one can unravel”

Christian charities often work internationally, but have an important common denominator: religion. Does that make a difference?
“Interesting question. If the Christian norms and values, on how you should treat each other, are clearly present within an organization this could very well make a difference. At the same time research shows that under pressure, people fall back on their cultural blueprint. For this reason, I believe that a Norwegian Christian and an Indian Christian will still have disagreements.  In an e-mail conversation with an Indian you will find the actual information in the fourth e-mail. The first three e-mails are just going through the motions. I have a Christian background myself yet I see myself as impatient. It is more meaningful to be aware of cultural differences and not to condemn these differences. I will quickly scan the first three e-mails and thoroughly read the fourth.”

 

 

Result Mediation trains mediators in the Democratic Republic of Georgia

Mediationtraining in Georgia

Beginning of June 2018 our trainers Felix Merks and Elsbeth Snieders trained Georgian professionals and politicians in mediation and negotiation. The Core mediation  training was organised in cooperation with the EECMD, the Eastern European Centre for Multiparty Democracy and their Dutch counterpart, the NIMD, Netherlands Institute for Multiparty Democracy. 12 enthousiastic trainees spent 5 days of intensive training with the trainers of Result Mediation.

Giving Back

This training was a part of our “giving back program”, where Result and her trainers trains one person in a post-conflict area for every participant in one of our regular mediation trainings.

Please visit the website of the EECMD here. This is what they wrote about the training:

Core Mediation Training

On June 11-15 2018, the Eastern European Centre for Multiparty Democracy (EECMD) has organized the Core Mediation Training in Georgia.

Training was commissioned by the Netherlands Institute for Multiparty Democracy (NIMD). Alumni of the Democracy Schools as well as other interested individuals were able to participate in the training.

Training was led by two highly qualified and experienced trainers from Dutch organization “Result Mediation”. Trainers have delivered professional training on the ways of understanding conflict dynamics and equipped participants with skills to align differing interests and to bring parties together through mediation.

First half of the five-day long training was devoted to the theoretical aspect of the subject. Theoretical part of the training addressed the issues such as conducting negotiations, defining the interest and communication models. Furthermore, the training also touched upon the ways of dealing with difficult situations during negotiations and conducting mediation. In the second part of the training, participants themselves became mediators and stakeholders.  Multiple cases were role played and all the different phases of the mediation process were discussed.

“Training was really important for me. I have learned how to detect behavior and listen to the parties. Most importantly, I am inspired to learn the subject more thoroughly and contribute to the development of mediation practices in Georgia”, – remarked Tamar Mikeladze, one of the participants of the training.

According to Nino Jintcharadze, the knowledge acquired during the training will be useful for her to solve personal, work-related and other types of conflict situations. She remains hopeful that mediation will become as popular in Georgia as it is in the Western countries. This would provide win-win solutions to various disputes without the need of taking the case to the court. Participants expressed the wish of conducting mediation training systematically for the representatives of various spheres, especially for the politicians.

The Core Mediation Training is officially certified by the Mediator Federation of the Netherlands and has been conducted in many countries since 1998.

Feedback of the participants:

The Core Mediation Training ignited my interest already when I saw the call for the training. I believe a training course in Core mediation should be widely introduced to other groups of society. Especially, important I believe it to be for the future politicians since it seems to be one of the most constructive ways of settling the disputes with a win-win outcome. As for me, I have immediately started applying the new skills to my everyday work routine and it literally makes miracles; I have also made up my mind to start developing a concept of a “peer mediator” to be introduced to the schools and university of Telavi.  I feel so lucky to have had the opportunity to enjoy every minute of this impeccably and impressively delivered training course in Core Mediation.- Tiniko Khanjaliashvili

***

First of all, I have to give due credit to the trainers. Trainers were undoubtedly the professionals in the field with experience of engaging with various target groups and audience. Their readiness to answer the questions and receive feedback on various activities was indeed very efficient. It was evident that the trainers followed closely to our role play, underlined the positive side of the role play and gave objective feedback for the purposes of improving the performance. Shared sense of the group to operate in a working environment during the training contributed to the understanding of the issues from different angles. Logistical side of the training was exemplary which in itself contributed to the successful implementation of the training.

Personally for me the training was very important. During the training, I saw myself as a communicator and listener. I learned to get familiar with my own behavior. Being mediator, and ‘neutral person’, during the conflict situations was interesting and unusual experience for me. All of this is going to be very helpful to me. Most importantly, this training inspired me to learn the art of mediation more thoroughly and hence contribute to the development of mediation practice in Georgia. – Tamar Mikeladze

***

Mediation training, which took place in Kvareli during June, 11-15th, was very impressive. Both content and learning methods of the training have exceeded all expectations.

First of all, I would like to mention a high degree of trainers’ preparation, which was evident from the outset of the training. Because of their teaching skills, I was fully paying attention to the training and have been actively engaged in the process. I particularly liked the practical side of the training which included various exercises as well as theoretical aspect which equipped us with relevant knowledge in the field of mediation.

By completing the mediation training course, I am confident that the knowledge that I have received during the training will be useful for me in order to solve personal, work-related and other types of conflicts. I remain hopeful that mediation will become as popular in Georgia as it is in the Western countries. This would provide win-win solutions to various disputes without the need of taking the case to the court.

I would like to thank the Eastern European Centre for Multiparty Democracy (EECMD) for organizing the training. This organization contributes markedly to the debates and issues that are vital for the further personal and professional development. – Nino Jintcharadze

Report on ADR by Dutch Research and Documentation centre

Report on ADR by Dutch Research and Documentation centre

Recently the Dutch research and Documentation Centre published a report on ADR in the Dutch justice system.

The main research question in this report is if the core values of the rule of law are sufficiently upheld in current forms of out-of-court or ‘alternative’ dispute resolution (ADR), and which benchmarks or indicators may be identified to determine whether these guarantees need to be strengthened. These last
decades, ADR has become an important part of the Dutch justice system. Arbitration, the oldest form of
ADR, has long been a part of corporate dispute resolution. Both other types of ADR – mediation and
binding third party ruling – have emerged more recently, pressing the need for this very research.
The question how the core values of the rule of law are guaranteed for those who make use of these non – governmental forms of ADR is asked more often and more urgently. At the same time, it is clear that the strength of these alternatives is that they are less formalistic and therefore faster and offer better possibilities to tailor the procedure to a specific case. One must however fear that providing for more ‘rule of law safeguards’ will lead to formalisation and will reduce the effectiveness of ADR. Hence, there is an obvious tension between the classic rule of law safeguards incorporated in the (public) judicial system, and the effectiveness and efficiency of the (private) alternatives. Finding an appropriate balance
between these interests is the focus of this research.
The first step of this research consists of identifying and setting out the framework of rule of law  safeguards and how these are relevant in the specific context of ADR, by conducting a literary and case
law research. The outcome of this research has subsequently been presented to and discussed in expert
meetings and focus groups, both consisting of experts from the ADR-field and academics, in order to
validate the results and further explore the issues that had come up during these meetings. At the same time the current field of ADR in the Netherlands – arbitration, binding third party ruling, and mediation – has been described with a specific focus on the rule of law safeguards that had previously been identified. With regard to binding third party ruling and mediation, three case studies have been conducted to get a more detailed picture of the safeguards these variants of ADR currently offer: A case
study into Kifid (the Dutch Financial Services Complaint Tribunal), divorce mediation, and ADR in disputes with the government.
The results of the research show that in general, the rule of law seems sufficiently safeguarded in
alternative dispute resolution. The relevant safeguards are often enshrined in the law (which is especially
the case in arbitration), regulations, rules of procedure or are guaranteed otherwise. In the most important institutional variants of ADR – such as Kifid or so-called ‘disputes committees’ for consumer
cases – government interference already occurs. Therefore, it appears that there is at present no need to
provide for additional safeguards. As was said, further formalisation and legalisation could be at the expense of the desirable qualities and advantages of ADR, and should thus be done reservedly. For the
future however, it is important to monitor the developments. The various forms of ADR are simply too divers to precisely indicate when government interferenced does become opportune. The researchers therefore developed a framework that takes this diversity into account and provides a sufficient basis for assessing the necessity and the type of interference.
For this purpose, two paradigms are placed on opposite sides of a sliding scale. On one side, the paradigm of the safeguards, that is incorporated in the judicial system which can be characterized as highly formal. On the one hand this has led to a reliable system and subsequent confidence in the system. On the other hand, it has led to a rather inert system that is known to be relatively slow, costly, and does not leave much room for a tailor-made approach to cases. The second paradigm concerns autonomy and self-determination. It revolves around the freedom of choice and self-determination of parties’ own interpretation on how to solve their conflict. It is not self-evident that this should involve some sort of government interference or regulation. Similar to parties’ freedom of contract, which entails that in principle the contracting parties determine the contents of the agreement themselves, parties may also shape the solution to or resolution of their conflicts.
Both paradigms can be viewed as ‘ideals’ on either side of a scale on which the various forms of ADR
could be placed. The research shows indicators with which the paradigm that is applicable to these various types of ADR could be determined. The perspective of the ADR consumer and the legitimate expectations on constitutional safeguards he reasonably may have, are essential. These expectations are more justified if one (or more) of the following situations occur: When more government interference occurs and the government stimulates ADR; when the actual freedom of choice regarding the use of ADR is smaller; when the provider of ADR provider can be considered to be more professional and/if the role of the ADR provider is to resolve the conflict, as opposed to a role of a more procedural nature. These criteria could be used as indicators for government regulation or control, after which could be discussed how such regulation or control could be shaped or formalised.
The report describes four options, two of which already exist in the current system: self-regulation and
supervision of the ‘products’ of ADR (for example arbitral awards or settlement agreements) by the judiciary. The two other possibilities are of a more theoretical nature: administrative supervision by the central government or by specific decentralised authorities. Though far-reaching and not (yet) necessary, they do occur in specific sectors of the legal domain, such as the notarial and legal profession, and are thus mentioned in this research.

Ideas4Culture merges with Result mediation

Ideas4Culture merges with Result mediation

It is with pleasure that, as per January 1st, 2018, Result Mediation has taken over the activities of Ideas4Culture B.V. from Juanita Wijnands.

After a long and fruitful cooperation together, we are proud to incorporate the intercultural management consultancy and training expertise of Ideas4Culture into our organization. This not only strengthens our expertise and competency supporting organizations on issues of (inter)cultural cooperation and conflict here in the Netherlands, it also deepens and strengthens our knowledge and expertise in cross-border conflict situations. An area in which Result Mediation is rapidly gaining international recognition.

Complexity

Result Mediation is the largest mediation organization in The Netherlands, specialized in supporting organizations to find their own solutions to cooperation, and conflict management issues as well as developing the necessary intercultural competencies and skills required to communicate and act effectively in complex intercultural contexts.

Juanita Wijnands will stay actively involved in Ideas4Culture, as coach, facilitator and trainer.

We thank Juanita for her commitment and trust in our organization.

You can contact us through our Ideas4culture page, which will continue to be our internet address. Our (new) telephone land-line number is +31 (20) 205 02 39.

Workshop: De-Escalating Strong Emotions in Negotiation, Diplomacy and Conflicts

Workshop: De-Escalating Strong Emotions in Negotiation, Diplomacy and Conflicts

As part of the Mediators Beyond Borders International Conference 2017, Douglas E Noll shares his knowledge and expertise with you in this day-long workshop. We at Result Mediation would not want you to miss this opportunity to learn from one if the most distinguished lawyers and mediators of the USA.

What?

Doug Noll’s de-escalation trainings are the culmination of years of research and experience in the Prison of Peace project. He has taught this state of the art technique for over 7 years in some of California’s most violent men’s and women’s prisons with remarkable results. This time, a day-long de-escalation training workshop will teach the participants how to de-escalate strong emotions in mediation, solve problems and create accountable agreements in their practices of negotiation, diplomacy and conflict resolution.

To whom?

The workshop is developed for specialists in law and diplomacy. Diplomats, lawyers and judges often have to negotiate and problem-solve in tense, escalated situations. All of them would benefit enormously from learning this skill from the Master himself. The workshop will be also promote to military higher-ranking officers.

Why?

Traditional forms of negotiation and communication have been shown to be less effective than desirable. In this workshop, the participants will gain new insights into how a human processes information in conflict and will also master innovative new skills. They will learn how to de-escalate a volatile situation and move the discussion into effective problem-solving and durable agreements. We also consider this a unique opportunity given that it is the first time Doug Noll is coming to the Netherlands to give this workshop.

How?

The day will be divided in two following sessions: Micro-Interventions in Mediation, devoted to exploration of the concepts of emotional invalidation, reflective listening, core messaging and affect labelling; and Guiding Decision-Making in Mediation, that will focus on teaching and developing skills in recognising and working with decisional errors commonly made by parties in high conflict, understanding the systems of decision making, malware, ignorance and information gaps, strategies and techniques for guiding counsel and parties leading to better decisions. Both sessions will be highly interactive.

When and where?
October 4, 2017
9:00 am – 4:30 pm

Peace Palace, Carnegieplein 2,The Hague,2517 KJ,Netherlands

To register and/or to have more information about the workshop and Doug Noll please go to the following link: https://mbbinternational.org/events/workshop-de-escalating-strong-emotions-in-negotiation-diplomacy-and-conflicts/

How to prepare for mediation: a checklist

This article was written for Jams International by Matthew Rushdon.

How to prepare for mediation: a checklist

Clients have a right to expect a high level of technical expertise from their lawyers. Beyond this, what distinguishes the excellent from the merely acceptable in mediation advocacy is often the quality of prior preparation.

One salutary tale is that of the mediator who, while practising as a solicitor, acted for one of the world’s leading professional gamblers. The gambler concerned made a living taking on all-comers at Blackjack. She became involved in a rights dispute and sought advice on her prospects of succeeding in a legal claim. The solicitor gave his standard line: “You’ve got a 70 per cent chance of succeeding with the claim, your costs will be X if you win and X if you lose.” “Is that it?” she asked. “What kind of a risk assessment is that? I need to know about my opponent – what advice are they getting? What’s their personality? Are they gamblers? Will they see this thing through to the end? How do they cope with stress? Will they break under cross-examination? Is their house on the line?” In short, she wanted a full risk assessment of all the relevant circumstances. Litigation was not a gamble she was about to undertake lightly.

The message is: the better informed you are of all the circumstances that might potentially affect the outcome, the better able you are to take advantageous decisions.

How to prepare for mediation: risk assessment

Mediators all agree that realistic and comprehensive risk assessment is critical in preparing for mediation. Mediators might force parties to complete a decision-tree analysis, getting each side to attach a percentage value to their prospects of success in each phase of the dispute. Opinion is divided as to whether decision-tree analyses produce mathematically sound results. “They are,” concedes one mediator, “pseudo-science, but it’s better to have them than not have them.” Others will resort to them only when desperate.

Part of what this process achieves is the breaking down of partisan perceptions. Research shows that it is natural to view one’s own side as “more talented, honest and morally upright”, while simultaneously vilifying the opposition. The result is that exaggerated perceptions of the other side’s position leads to overestimates of the substantive conflict.

Risk assessment and reality testing help counter this tendency; being aware that either side’s arguments are coloured merely by the roles adopted in a conflict situation helps broaden one’s perspective.

At a minimum, therefore, lawyers should consider, and have in writing answers to the following:

  • The sum claimed.
  • A list of unquantifiable elements: injunction, accounting, rectification, declaration.
  • The sum counterclaimed (if applicable).
  • A list of unquantifiable elements of the counterclaim: injunction, accounting, rectification, declaration.
  • A comprehensive list of each aspect of the claim and percentage prospect of success.
  • The percentage prospect of the main claim succeeding, and the sum payable or receivable.
  • The percentage prospect of a significant part of the claim succeeding, and the sum payable or receivable.
  • The percentage prospect of the counterclaim succeeding, and the sum payable or receivable.
  • The percentage prospect of a significant part of the counterclaim succeeding, and the sum payable or receivable.

Cost

  • Are you fully indemnified for your own costs to trial?
  • Are you fully indemnified for your opponent’s costs to trial?
  • If you settle before trial will your opponent’s costs be indemnified?
  • If not, estimate your opponent’s costs to date of settlement.
  • What are your total costs and expenses to date?
  • What are your estimated legal costs to the end of a trial, including witness expenses, expert costs, counsel’s costs and all other items.
  • If you succeed, how much of your costs are you likely to recover?
  • If you succeed, how much of your costs will not be recoverable?
  • If you do not succeed, how much of your opponent’s costs are you likely to pay?
  • If it goes to trial, estimate the time taken by management, staff and others in preparing, seeing lawyers and attending court? Put a value on this.
  • Estimate the resulting loss of business/income.
  • If you succeed at trial, what interest, if any, are you likely to receive?
  • If you do not succeed at trial, what interest, if any, are you likely to pay?
  • If either side appeal the judgment, estimate what extra costs you might incur.

Time

  • What is the date of the trial? Estimate the length of the trial?
  • If either side appeals, estimate the further time involved.
  • Is there any prospect that your opponent will not have the resources to meet a judgment, immediately or at all? If so, estimate the time, prospects and costs of enforcing a judgment.

Other factors

  • If the other side has made a Part 36 offer, what are your percentage chances of beating that offer?
  • If you have made a Part 36 offer, what are the other side’s chances of beating that offer?
  • How damaging would an adverse decision at trial be for your business? Put a value on that.
  • How damaging would an adverse decision at trial be for your opponent’s business? Put a value on that.
  • Might there be any indirect benefits from a settlement, like restoring or preventing further damage to goodwill, or trading opportunities?

Source: https://www.jamsinternational.com/blog/how-to-prepare-for-mediation-a-checklist

ADR challenges for general counsel

This article was written for Jams International by Philip McMullan.

ADR challenges for general counsel

The legal system and legal profession are, by their very nature, conservative. There are good reasons for this. Certainty is key for businesses, to ensure that they operate within the law and that their investments are made with the full facts about potential liabilities. A legal system which changed the rules frequently would make it impossible to do business. And clients are unlikely to be impressed by a lawyer who wants to innovate with a new approach when there are millions of pounds in dispute. Stick to what works, what’s tried and tested, to achieve a predictable outcome, is the conventional wisdom.

These facts were brought home to me when I recently discussed ADR with the general counsel (GC) of a large FMCG business and two litigation partners based in London. All are UK-qualified lawyers.

The case against ADR

“Why don’t GCs push for more ADR when disputes arise with long-standing business partners?” I asked the group. The litigators immediately opined that any party who requests mediation immediately looks weak to the other side, potentially damaging their long-term interests.

The GC added that when signing a large deal the last thing anyone is thinking about is the dispute resolution clause. And what’s more, the transactional lawyers working on a deal don’t have any experience drafting structured dispute resolution clauses. So, while the parties can agree to mediate, there won’t necessarily be an agreed step-by-step process which keeps the dispute from going to court unless absolutely necessary.

Furthermore, they all agreed that there is often personal animus from aggrieved executives fuelling the dispute. When senior stakeholders are pushing for an aggressive strategy – the corporate equivalent of the day in court – it makes it difficult to suggest mediation.

I found it interesting that these senior lawyers could all see the inherent upsides of ADR – privacy, potential cost savings, risk management – yet, for a variety of reasons (both structural and cultural), were more likely to pursue litigation as a means of resolving disputes.

Why general counsels might consider ADR

The fact that senior lawyers know that ADR might present a better way to resolve disputes was noted across the Atlantic in a 2015 article by former Delaware Supreme Court Chief Justice, Norman Veasey, and former Chancellor of the Delaware Court of Chancery, Grover C. Brown.  The piece, published in US publication “The Business Lawyer”, looked at “the hard choices that face a general counsel when weighing the pros and cons of whether and when a particular complex business dispute is better suited for litigation in the public courtroom or through a carefully constructed alternative dispute resolution process, including mediation and/or arbitration”.

The distinguished authors also carried out extensive interviews with 19 GCs or their principal in-house colleagues –  from companies including Walt Disney, Oracle, Walgreens, Proctor & Gamble and General Dynamics.

The conclusions drawn by Veasey and Brown reflected what I had found in my discussions in the UK:

  • A preference for mediation is almost universal.
  • Mediation provokes commercially rational thinking and decision making.
  • International arbitration is strongly preferred to litigation in foreign jurisdictions.
  • International arbitration has features that domestic arbitration does not, including restrictions on pre-hearing information exchange and proven experts in both the arbitral process and the subject matter of the dispute.
  • Confidentiality is highly valued.
  • Not all transactional lawyers perceive that they have the ability to negotiate arbitration structures that safeguard against the flaws they fear in the process.
  • Dispute resolution provisions are too often addressed too late in the deal negotiations, either by attorneys who know the deal but are insufficiently familiar with dispute resolution processes, or (ironically) by attorneys familiar with ADR but insufficiently knowledgeable of the deal at hand.

It is probable that the US is ahead of the UK in take up of ADR by senior in-house lawyers. But it is clear that both jurisdictions face challenges in convincing all stakeholders to buy in to robust and structured dispute resolution processes allowing for ADR – despite the fact that they might rationally see the upside. It is up to the ADR community to continue to educate the market about the benefits of adopting a structured approach to dispute resolution and the importance of thinking about it before disputes arise. The legal market may be conservative but that does not mean it is incapable of change.

Source: https://www.jamsinternational.com/blog