Where to start!?

There are so many examples around the world at present of the negative, confrontational rhetoric which is more divisive than ever, with countries / parties taking positional negotiations to an extreme that becomes counter productive to good deal making or even a threat to peace. This negative approach can be translated into the Boardroom or the workplace. This presents real challenges to HR and dispute resolution professionals and mediators. I believe that the (false) premise is in danger of taking over: that the tougher the line you take, the better the deal you can be achieved. This is the Trump form of negotiation and diplomacy. So witness here, for example, the tortuous positional standoff between the US and China over their trade war.

Closer to home we experience with horror the 2 ½ years of agony endured with the Brexit negotiations. At the time of typing this, Theresa May is back from Brussels with her tail firmly between her legs having been told no renegotiation or amendments to the exit agreement are possible and that the ball is in our court (is it ever in their’s?) Is it surprising she got such a frosty reception in Brussels when she started her speech saying we are at the beginning of a negotiation (rather than the end!) Also guaranteed to wind up your ‘opponents’ is constant talk of ‘ red lines’ and what ‘we don’t want’ rather than ‘what we can achieve together’ Harold Wilson famously said ‘Politics is the art of the possible’ and this applies not just in politics but in negotiation generally, including of course, mediation. Instead, the one constant in the Brexit negotiations that both sides have been able to agree upon is that the ball is in the other sides court.

So what can be done?

Mediation can provide the answer when used properly. In the good / bad old days mediation used to be a sign of weakness. If the object was to ‘win’ then how could it possibly be seen as anything other than a sign of weakness to propose mediation. If your aim was to win then the way to do that was by having your day in court and ‘beating’ the ‘other side’.

However things have changed to turn the tide towards mediation
being a sign of strength:

1. The increase in court fees introduced in 2015, has in my experience, greatly increased the number of pre issue mediations I’m seeing
2. I’m also seeing a greater number of court directions to mediate
3. A number of cases (Dunnett v Railtrack, Halsey v Milton Keynes NHS Trust PGF II and Thakker v Patel have held that an unreasonable refusal to mediate, can result in costs penalties
4. General common and commercial sense has meant that more people are mediating rather than engaging in costly time consuming and stressful litigation.

A skilled mediator can help move peoples’ attention away from fighting over the past, and instead guiding them to look to the future, to find common ground and work on a solution they can all live with, so they can get on with their lives.

Advantages of Mediation

The advantages of mediation have been well rehearsed in this Journal. However, in brief, because mediation is private and confidential and without prejudice, it enables the parties, with the guidance of the mediator, to freely explore possible solutions. I’ve found the benefit of open sessions to be invaluable in this, even though they have generally become less popular of late. It gives the participants and their advisors the chance to address each other over the table. I often find this is the first time that the decision makers have met. When they are face to face, they can see that their ‘opponent’ is not an ogre, and that they can talk constructively round the issues, with the mediators guidance.

How does this translate to the workplace?

As Winston Churchill famously said ‘ Jaw jaw is better than war war’ Disagreements in the workplace often escalate through lack of communication, and then assumptions are made, which are wrong, and before you know it the matter has blown into a dispute, with each ‘side’ taking positions. The relationship can be the first casualty and once that is lost, it becomes harder for each ‘side’ to back down. The same applies to a dispute in the boardroom, between partners or neighbours.

So how do we break this negative cycle?

For me, communication is the key. This applies to all levels of disputes that I’ve described. It is essential to maintain dialogue direct between decision makers, so there can be less room for misunderstanding and wrong assumptions. All assumptions are dangerous: even this one! So keep the lines of communication open and then it will be easier to nip disputes in the bud.

Roger Levitt has been a commercial property solicitor for over 34 years (now, non practising) and he has been a civil and commercial mediator for 10 years –  www.rogerlevittmediation.co.uk

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