Posts tagged: mediation skills

Persuasion

Much of what we do is about persuading – whether in a mediation, before a Tribunal or negotiating.  The key to successful persuasion is as follows:

Reciprocity: make the other side indebted to you – be a first mover and give something unexpected and, so far as possible personalised: “You have this room, it’s better and I have stocked it with my wife’s cookies”

Scarcity: don’t just emphasise the benefits of your position, what are its unique features and what will they lose if it is not accepted: “I am authorised to give you a special price not available to anyone else.  It is only available today.”

Authority: people are more generous to those in authority – an ethical, no-cost endorsement is valuable currency: Could your receptionist say “You are here to see Mr Ashford – we like him, always the gentleman and clients love him.”

Consistency: a big step often follows a small step – invite a small, voluntary and public step and build from there: “Could you see yourself paying a £1 to settle this … [establishes the direction of flow of money] … Could you see yourself paying £…”

Liking: people like to deal with people who they perceive as similar – pay compliments and co-operate towards mutual goals: from a main contractor to a sub-contractor “That was a very clever argument – how can we use that to get more from the employer”

Consensus: if similar people in the same position have acted in a particular way others are likely to follow – “The rest of the team have accepted a pay freeze, will you do the same”

Cross Border Mediation – Changes to Rules and New Legislation

The EU Mediation Directive, which seeks to promote the use of mediation in cross-border disputes, has been partially implemented in England and Wales in advance of the deadline for total implementation by 21 May 2011 and is a welcome development to encourage and bring uniformity to mediation across Europe.    

The Directive covers five areas:

  1. ensuring the quality of mediation, by encouragement of the development of a voluntary code of conduct and training of mediators (Article 4);
  2. recourse to mediation, by the Courts’ invitation (Article 5);
  3. enforceability of agreements resulting from mediation, with the express consent of the parties to the agreement and provided that the agreement is not contrary to the applicable law of the enforcing state (Article 6);
  4. confidentiality, so that neither the mediator nor the parties can be compelled to give evidence regarding information arising out of or in connection with the mediation (Article 7); and
  5. limitation, so that a party pursuing mediation shall not be adversely effected by the passing of any period of limitation during the mediation process.

The Ministry of Justice considered that the arrangements in England and Wales in respect of mediation already satisfied the requirements of Articles 4 and 5, but that Articles 6, 7 and 8 required further implementation.  Accordingly, the Civil Procedure Rules have been amended.  Part 78 has been amedned to allow enforcement of the content of a written mediation agreement whilst maintaining the confidentiality of the agreement. Consequential amendments were also made to Parts 5, 7, 8, 31 and 32 and Practice Direction 5A. These amendments implemented Article 6 but only partially implemented Article 7. A new Statutory Instrument, the Cross-Border Mediation (EU) Directive Regulations 2011, implementing rules as to the confidentiality of mediation and the suspension of limitation during mediation came into force on 20 May 2011.

The Regulations will only apply to cross-border disputes that start on or after 20 May 2011 and should bring a welcome boost to the use of mediation in cross border disputes.

Attendance at mediation

It pays to give sensibly advance notice of those attending a mediation.  If one party instructs counsel and does not tell the other it can make the other feel at a disadvantage, make them withdraw and ultimately terminate the mediation.  Likewise for witnesses of fact (who generally have no place at a mediation).

Be open and frank as to who will attend.  It is good practice for the entire mediation process.

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