This Week In Mediation

Mediation News - This Week In Mediation - Episode 2

Posted by Aled Davies on 26-Oct-2016 06:26:00
Aled Davies

In this week's episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn how the Global Pound Conference (GPC) is sweeping through the world gathering up the views of stakeholders right across the ADR community. We talk to the chair of the GPC, Michael McIlwrath to understand the aims of the GPC series and what we can expect to learn from this mega research project.

We take a look at the world of Medical Mediation and also a recent case from the Court of Appeal that is highly relevant to the issue of confidentiality in mediation. We then take a trip down under and explore the world of Aussie rules football and trade mediation, rounding things off with a feel-good story of mediation at the breakfast table and our big question of the week to you, our audience. All this and more coming up in the show.

 

We'd love to hear your comments and  get your feedback. We'd also like to know about topics that you think the rest of the mediation community should be aware of. So let your fingers do the talking in the comments box to the right of this transript

Watch last week's show 

Mediation News - The Full Transcript 

 

Aled:

Hi, I'm Aled Davies, and welcome to Mediator Academy's roundup of mediation news from around the world. As usual, we'll try to be as informative, illuminating as possible. We might even be a little outrageous. Welcome to 'This Week In Mediation.'

 

My co-presenter on the show is Professor Nadja Alexander. Hi, Nadja.

Nadja:

Hi, Aled. Great to be here for our second 'This Week in Mediation.'

Aled:

What have we got coming up in the show today, Nadja?

Nadja:

Well, first of all, we're going to have a look at the Global Pound Conference series. This is a series and the GPC is traveling the world, and we're going to see where they are up to this month and next month. Then we're going to focus on the UK, and we're going to discuss a new medical compensation scheme and the role that mediation can play in medical negligence disputes. Staying in the UK, we're then going to look more closely at a Court of Appeal decision about an aspect of mediation that is close to many mediators' hearts, and that is confidentiality. We'll see what the Court of Appeal has to say. Finally, today, we're going to leave the UK and travel to the other side of the world, no, indeed to my home, Australia, and look at what's happening in Aussie rules in terms of mediation. 

Aled:

Lots of interesting stories coming up. Where should we get started?

Nadja:

Let's start with some of the feedback from last week, because I believe you got some very interesting feedback from viewers on some of our stories from last week's show.

Aled:

Yes, we did indeed. Thank you, everyone, for writing in, sending your emails in to us with questions, comments, and stories. We had quite a few responses about our article that we discussed, looking at the antagonistic mediator and some of the behaviors that seem to be coming out of the new stream of mediation called antagonistic mediation, which were very interesting.

 

One of the questions that stood out, related to the article we covered about the German mediation accreditation regulation, and the idea that 120 hours would be a good, sufficient chunk of time to give a mediator the requisite skills, knowledge, and background to go out there and call him or herself a mediator. The question that was posed to us was, "If we were to apply some universal standard, 120 hour mediation accreditation training, what element would we include in that training?" Thinking about skills development, thinking about ethical elements of it, but also some of the theory and knowledge.

 

We'd like to hear from you, watching this show. If you were in charge of designing that, what would be important for you? What would you include in that? Send them in by email, or you can now add them to the comments and questions, little box at the side of this video.

Nadja:

That sounds great! One of the elements, other elements, that we talked about last week was the role of the users as stakeholders in the mediation community, and how we reach out to users more. There's a very interesting series of events that are occurring this year and into next called the Global Pound Conference Series. Basically, it's a series of events where stakeholders come together, stakeholders in the ADR community, so not limited to mediation. You've got your dispute resolution practitioners, mediators, arbitrators, whoever else they might be. Your policy makers, your law makers, your advisors, such as lawyers, academics, and your users.

 

Now, the Global Pound Conference, GPC Series, as it's called, is an initiative of the International Mediation Institute. It began earlier this year, in March, in Singapore. That was the first one, and it's traveling throughout 40 cities in the world, throughout the world, and it will end up in London, where you are, at Mediator Academy Headquarters, in London next year in June or July, I believe.

Aled:

Well, I don't think we're hosting it, but I hear you. It's in London.

Nadja:

I just meant in London, which is also the home of Mediator Academy Headquarters, as we know. That's all right. It's a really exciting initiative, and the name "Global Pound Conference", it comes from the original Global Pound Conference, which took place in 1976 in the United States. This was a very meanwhile famous conference, where Professor Frank Sander first introduced the idea of the multi-door courthouse, and for many people in the ADR world, this conference, the Global Pound Conference, symbolizes the beginning of modern ADR, or in particular, modern mediation. 40 years on, there is now this series of what's being called the Global Pound Conference. In fact, I think I made an error, because the American one was just called the Pound Conference.

Aled:

Ah, okay. The word "conference" conjures up all sorts of thought to me, because to be honest, I'm conferenced out. We have Mediation Awareness Week is just over, I'm conferenced out. If I go to one of these conferences, do I have to sit and listen to people talking, or what's going on at them?

Nadja:

This is the magic of it. Even though it's called a conference, a Global Pound Conference after the original Pound Conference, it's an event. The idea is that there are no boring speeches, but there are groups of stakeholders in dialogue with each other. The other exciting bit about this is, but I went to the first one in Singapore, is that you get these ... on your mobile phones, so it's good if you go there with a smartphone, you get to vote on important questions facing the ADR field, vote by your smartphone, and in discussion with other stakeholders and your colleagues, and you get immediate feedback on how everybody else, including yourself, have voted, feedback on the screen.

 

This is an event to bring people together in dialogue, but it's also collecting empirical data, that I think has never been done before on such a large scale. It's collecting information about what people want and what people think, and people being all the various stakeholders, in particular, also, the users. Being able to track these within a fixed period of time over the period of 1, 1 and a half years, being able to track this from region to region, from country to country, across cultures, will give us, the mediation field, the ADA field, a lot of data that we haven't had before. I think that's the hope of what the GPC is trying to do.

Aled:

It sounds like SurveyMonkey on steroids.

Nadja:

I don't know about that. That's probably something you'll have to ask the Chair of the Global Pound Conference Series, Michael McIlwrath.

Aled:

Well, it just so happens, Nadja, that we can go over to Mediator Academy's Italian studio, where we have Michael McIlwrath himself joining us. Welcome, Michael.

Michael:

Hello, good morning.

Aled:

Michael, tell us a little bit about your role with the GPC.

Michael:

Well, I'm a board member, and a past president, actually, of the International Mediation Institute. When we embarked on this initiative, to do the Global Pound Conference, I was asked to chair the Global Organizing Committee, which is what I do. I'm a volunteer in helping coordinate this fairly massive endeavour, which right now is scheduled to take place in a total of 41 cities. Although, I have to tell you, when they pitched it to me, it was supposed to be about 10 cities, simultaneously, all at one time around the world. It then became 15 cities, and then as it grew ... and incredibly, it's still growing. I think we still are in discussions with a few cities who now want to do a Global Pound Conference event. 

Aled:

What's the big idea? Nadja touched on it a moment ago. What's the big idea with the Global Pound Conference?

Michael:

The Global Pound Conference is about as big as you get, as ideas in dispute resolution. I think the simplest way to describe it to people, that I have found, is to say it's a conversation among the various stakeholders in commercial conflict about how we should resolve disputes. How do we take our resolution processes and move them into the 21st century, bearing in mind that for the most of us, actually, all of us, we still live in 17th, 18th century rules and processes that work well, but really have not been updated. Using modern technology, modern methods of community, and modern learnings about how we function as human beings, how should the world change to update itself?

Aled:

Okay. How's it gone? I mean, when was the first conference?

Michael:

The first conference was in April, in Singapore. We've had ... 1, 2, 3, 4, 5, 6, 7 conferences so far. After Singapore, we were in Lagos, then Mexico City, New York City, Geneva, Toronto, and last week we were in Madrid.

Aled:

The next one is in Dubai, right?

Michael:

Next one should be Dubai, yes, coming up. Then we've got a slew of them coming up after that. We've also got India, and ... anyway. Don't ask me, go to www.globalpoundconference.org, and you can see all of upcoming events as well as the schedules, and I would encourage you to download the app. We have an app that you can access from your web browser, and you can even see the questions that we're asking at each of these conferences.

Aled:

Brilliant. What are the sort of questions that you're asking?

Michael:

Well, it's the same questions at all the conferences. You answer it as a member of a stakeholder category, so if you are a party, a company counsel like me, you would identify as such. If you are a provider of dispute resolution services, you would answer as well. If you are somebody who comes from government, Ministries of Justice, the judiciary, in academia, you answer also as part of those categories.

 

We have 4 sets of questions, and they run from, "What are the issues that parties and their counsel face today in resolving disputes?" To "What should the future do to change?"

Aled:

Okay. What sort of feedback have you had so far?

Michael:

Feedback! I laugh, because the feedback has been incredible. It's been amazing. I mean, Jeremy Lack, who is really the guy who deserves all the credit ... Jeremy is our many boots on the ground. He's a mediator in Geneva who's been charged with just doing all the organizational aspects of it, and he and I and Barney Jordan, who's the head of our academic committee, have regular calls every Sunday morning, and I can't tell you how much panic we have before each of these events.

 

The metaphor, I think, that would capture what we go through is to be working in a restaurant kitchen, and, you know, we're out of this ingredient. This isn't working, we've got to find, the dishes are the wrong colour. All the things that could go wrong seem to be going wrong, and yet we seem to get stuff out of the kitchen and served to the tables, and you brace for yourself, thinking, "Oh my god, everybody's going to hate us, they're going to kill us, they're going to be here with pitchforks in the kitchen soon," and the doors open, and they say, "They love it. They want more."

 

The feedback has been incredible. Obviously, when you do something that's new ... you know, we have voting technology, we have PowerVote, it's an app within our app that allows people to do these votes, for us to publish the results on the Web, and the way that we're organizing is by invitation, events where we bring various stakeholders together. There's so many things that we are doing that possibly could go wrong, and yet it all seems to be working out, and the feedback we get, typically, has been that this is the most remarkable that we've seen in conferences. This is what we hope other conferences will do. As I've said, other people who've come from different countries to an event have said, "We want to do this in our city, in our country."

Aled:

Yeah. What are you learning, what do you hope to learn, and what's next?

Michael:

Well, what we're learning really is where there are similarities and where there are differences, in the views of the various stakeholders with respect to dispute resolution. As I've said, it's a conversation that we're having. Most countries ... I'm based here in Italy, and I can tell you, we never have an opportunity to talk to judges about what we like and what we don't like about how they resolve disputes. This is one of the many, I'd say, many conversations that the GPC allows us to have, and to compare that discussion with similar discussions taking place in other countries. The data that will be generated by this can be compared.

 

To answer your question, what do we hope to do with this, again, it's an open book. We've got one person, she'll be writing her PhD based on the outcome here, of the data that will be published. We will have a final report that will be issued that would be available to everyone. This data will be in the public domain. We want to be very careful in how we characterize this data. I would say these are not robust sample sizes, that we have at each of these conferences. These are invitation events, so there's a lot of self selection that goes on. I would never hold this out and say, "This is representative of what all parties, all judges ..." I mean, think about commercial conflict.

 

What I think that we can say fairly, though, is that these are thought leaders in different countries. If you're thinking about updating your legislation, or about changing your practices, or if you're a law firm and you represent clients in Sydney, Australia, or in Melbourne, or in China, wherever we're holding one of these events, you can look to the GPC and say, "Well, this is what thought leaders are suggesting is important. We may want to look at this more carefully."

Nadja:

Fantastic. Staying with the user focus, Aled, I believe there's been a new medical compensation scheme that's been introduced to the UK.

Aled:

That's right. It came out ... well, I saw it in the BBC news report. It's a new birth injuries compensation scheme, and now it's in the UK. Government have introduced this scheme in England for parents whose children are injured at birth, in order to settle complaints more quickly, and, and this is the important bit, make it easier for doctors to speak about what went wrong, and to enable the medical community as a whole to learn from the mistakes that they made. I think that's the important element from it.

 

Now, they don't refer to mediation, but what's interesting, a couple of interesting facts. Last year in the UK, the NHS spent 500 million pounds resolving legal disputes involving mistakes by maternity staff. As I said, they don't mention mediation, but I do know of a medical mediation scheme in the UK, and it's a mediator, it's a lady called Sarah Barclay, who runs an organization called Medical Mediation, and it first started at the Evelina Childrens' Hospital, I think, in London. The work that Sarah and her colleagues do is, they work with medical staff and parents of terminally ill children, helping them all reach decisions collectively, involving the child as well, because quite often, all of these decisions are taken in the absence of the child, and getting everyone around the table to make really good quality decisions for everyone involved.

 

It's a slightly different process, but I think it illustrates the versatility of mediation, and again, highlights just another area where the mediation process can be used really, really effectively.

Nadja:

I think there's a lot of value in using processes like mediation for medical negligence types of disputes. I'm thinking about some initiatives that have been occurring in Hong Kong, and there's a big discussion, now, about introducing apology legislation, which is essentially trying to create a safe space for doctors and medical staff and others, a safe space to say "Sorry," when something's gone wrong, without fearing that there's going to be litigation. You know, this is still in conversation, but I know that the medical fraternity is behind it, because what's most important for the people who've been negatively effected by medical mishaps is that they find out what happened. That's what you said before, it's not just hearing that you're sorry, it's not just getting an offer of compensation, it's disclosure, knowing what happened so that people can start to heal. They can grieve and begin to heal, and hearing some expression of regret if that's appropriate, and then you can come to a type of settlement, but all of that together is part of the resolution, and really, what better process than mediation?

Aled:

What else have we got coming up on the news today?

Nadja:

We've got a decision of the Court of Appeal, a very recent decision from the UK, and it's the case of Ferster v Ferster. It's the sordid story of 3 brothers who were having a very fierce argument. The matter was scheduled for litigation, and as is often the case in England, was then referred to mediation.

 

Basically, these brothers had an online gaming business together. 2 of the brothers, Warren and Stuart, wanted the third brother, Jonathan, they wanted to be able to sell their shares to him. They wanted Jonathan to buy them out. But they were asking, apparently, a highly inflated price. It went to mediation, and there was no settlement at the mediation meeting, but afterwards, and this is not uncommon, communications continued via email and through the mediator, and other offers were made, because you know, the relationship among the brothers wasn't very good, and so they really needed to sort it out so that they didn't have to work together in this online gaming business.

 

Apparently, Warren and Stuart sent an offer to Jonathan, saying, "We're prepared for you to buy us out at, now, an even higher price," which was apparently two million pounds higher than their last suggestion.

Aled:

Jumps it.

Nadja:

Yes, it's a bit of a jump. He goes, "If you don't, Jonathan, we're going to reveal to the world that you've got these hidden, overseas bank accounts." Just a little bit of blackmail, in fact.

Aled:

Sounds like it.

Nadja:

I think Jonathan's lawyer was onto it very quickly, and went to the court, and said, "This is an example of," to use the correct legal term, "unambiguous impropriety." That basically means you can't do naughty things in mediation. You can't blackmail or engage in inappropriate behaviour, and think you're going to be protected by the cloak of confidentiality, because if you do that, it's abusing the mediation process.

 

There was a bit of debate in court about whether you could bring evidence of this offer, right, because it's supposed to be under without prejudice privilege protection. But the Court said this is an exception to confidentiality, or as it's called in England, without prejudice privilege, because it gives evidence, it's evidence of, effectively, blackmail. It's evidence of unambiguous impropriety, and you can't hide behind a privilege or you can't hide behind confidentiality and engage in that sort of behaviour.

Aled:

I mean, it sounds like it's an important decision. Actually, it illustrated well, I think, why it's important to have this exception to confidentiality, or these exceptions to confidentiality, protecting the integrity of the process. I guess, from a user perspective, having some kind of trust in the process, that you're not going into this and you're going to be open to all sorts of shenanigans.

Nadja:

Yeah, absolutely. Because, you know, I think we say that people come to mediation, it's an effective process, it's a confidential process, and you'll be able to engage in full and frank discussions, and that's one thing, but people also need ... we also need to protect users of the process from inappropriate behaviour, because one thing that does not exist in mediation that you do have in court, is that you don't have the checks and balances of court procedure in mediation.

Aled:

Yeah, okay.

Nadja:

We need to have some way of making people accountable for their behaviour, and so blackmail's just not on.

Aled:

Okay, well, that's interesting. Let's take a look outside the UK. Where are we going next?

Nadja:

We're going now to Australia. Now, this is interesting, have you heard of trade mediation?

Aled:

No.

Nadja:

Well, you might be forgiven for thinking that trade mediation's got something to do with investment disputes, but in this case, it hasn't. Trade mediation is talking about trading football players between different clubs.

 

As you know, and you probably know better than I do, because I'm not an avid watcher of football, but players will swap clubs from season to season, and often there are very intense negotiations that accompany those trades, and where parties can't come to an arrangement, then mediation steps in. It's starting to be used more and more frequently, not just for football disputes or soccer disputes, but also other sorts of disputes. I think before the show, you were telling me about mediation in a different kind of sport.

Aled:

Yeah. I hear this story about a mediation that took place between a boxing promoter and his client, who was, at the time, the heavyweight boxing champion of the world. From what I gather, they reached a successful outcome. I think some people like to think of that type of mediation as being muscle mediation, but of course, that's a very different kind of mediation, and we're going to be talking about that, I'm sure, in another show. But I think it's another good example of where mediation can be used. We had medical earlier on, it's being used widely in sport, and I also think that as mediators, we should think more broadly about where we can use these skills and these approaches, and just bring this philosophy into the home. I think you've got a story to tell us, Nadja.

Nadja:

Well, it's also an Aussie rules story, believe it or not. This is a true story, a true story that took place quite a few years ago, and I need to tell it in a fairly anonymous way. It's the story of an aspiring young football player, who at the time was still at school, and training heavily, and had planned to go away for the weekend with his girlfriend. Because the scouts were coming around to identify student players for professional games, his coach quite appropriately had said, "Forget what you're doing, the next few weekends, it's just footie training." Right? Of course, this young man says to his girlfriend, "I'm really sorry, we can't go away on the weekend, because I've got footie training," and she says, "You don't love me."

 

Well, you can imagine it was a bit of a jar, and quite a dispute ensued, but this young man had a fabulous mum, who also happened to be a mediator, and she did a bit of serious mediating at the breakfast table with both of them, and I'm pleased to say that not only is this young man a professional footballer today, but that he and his girlfriend are still together. That was mediation in the home, and what a sustainable agreement, that has changed the face probably of Australian football, but also being sustainable on a very personal level as well.

Aled:

I like that story. I think too many of us have high expectations about how we should change the world, you know. We feel like we should be negotiating peace deals between various nations, when actually, I think we just need to look a little bit closer to home and see how we can use what we know, what we've learned, in our own communities, even at the breakfast table, Nadja.

Nadja:

The question, Aled, that I'd like to ask our viewers this week is, how do you bring mediation into your home?

Aled:

That's a lovely question to leave our audience. We'd like to hear your feel-good stories. We like to hear your own responses to that question. Do leave them in the comments section, send them into the email address at the foot of the article, we'd love to hear from you. I think that's it for this week, and all that's left to say, Nadja, is that it's goodbye from Mediator Academy in London.

Nadja:

And goodbye from Mediator Academy in Berlin.

Aled:

See you next week.

                                 

Topics: Mediation News

 

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