Today was a good day for mediation in the UK.

Today was not a good day for BA customers especially those with travel plans from Heathrow to a European destination next Friday. I am one of them.

Photo: A Bucklow

The Court of Appeal decision handed down today may have been a bit of a surprise for some and the appeal story may not yet be over as BA are considering an application to the Supreme Court. Rejecting the early ruling of the High Court on Monday, two Court of Appeal Judges decided that

it would be wrong to thwart the desire of staff to take strike action on the basis of a “technicality”.

A third judge, the Master of the Rolls, Lord Neuberger, agreed with BA.

However, the most important comment, which has been included in all the reports I have seen today was this:

Lord Judge, the Lord Chief Justice, stressed that the strike would have to be resolved by negotiation. He said: “Legal processes do not constitute mediation. On the contrary they often serve to inflame rather than mollify the feelings of those involved.”

Hear! Hear!

I am very encouraged by this and I sincerely hope that both sides will find the courage to close the gap so that BA can get on with rebuilding their business.

For a longer report published in the Independent Newspaper.

I have been watching the negotiations following our elections with great interest. The potential for politicians to work together in the interests of the country is an exciting prospect if one dares to hope they will do what they say they want to do.

There was a significant wobble in my enthusiasm during most of yesterday and by last night I felt a sense of gloom return. Like many, I thought Nick Clegg was acting very honourably until the point it was revealed that the LibDems had started secret discussions with the Labour Party. I was disappointed and it felt important to notice that. Someone once said that ‘a cynic is a disappointed optimist’.

It was important because Clegg seemed to be not doing what he said he would do (put the formation of a stable government first) and doing what he said he would not do (make Proportional Representation a deal breaker) and it seemed a little early in the day for changing minds and empty promises. OK so what’s new about that?

Thankfully, some mature minds in the Labour Party put a stop to that diversion on principle and we have an agreement. Credit where it is due for making that call. Even so, I don’t think the events of yesterday will be forgotten by the press and the political commentators. Arguably, we do now have an arrangement which reflects the votes cast last week.  A government with a decent majority but a tempered mandate and an opposition to provide checks and balances. This was achieved without a drastic change to the voting system. PR has a lot of drawbacks despite the appearance of a fairer system.

The challenge now is for the two parties in government to continue in a sensible and measured negotiations on a daily basis without displaying too much compromise or watering down in the decision making. That is important because we are going to need some tough and difficult decisions over the next weeks and months.

I do not want to see them squabbling; I don’t want to hear backbiting or sneaky briefings against colleagues; I don’t want to hear anymore stories about self-interested and self-serving activities. I want to see them work together, fiercely debate the issues that matter and demonstrate their first interest is public service. Only then can we can hope to maintain our independence and look after our citizens in order to be a strong member of the European Community. The price of not being a strong member is to lose the right to make independent choices, as Greece has recently discovered, and makes a mockery of any voting system if it comes down to ‘he who pays the piper, calls the tune.’

To that end this new government could do worse than have the assistance of experienced mediators working alongside keeping the communication and momentum going and marshaling options and choices.

The third eye, perspective, call it what you will, could make all the difference in helping the coalition build strength and trust. The most important of those being trust.

The benefits could be far reaching. Such a lead from the top would give encouragement to companies and organisations to follow and start a new era of agreement.

It is easy to disagree. The act of disagreeing can be addictive. It can also be confused with winning.

Added link: Law Gazette

Hong Kong by Steve Webel

I picked up this announcement in the Standard (HK) about the launch of a Mediation Information Office in Hong Kong. There will be no Court mediators and the parties will choose their own mediator. I feel that this is a real improvement on schemes where the court appoints mediators. It would be great to see schemes like this take root in England and Wales. What do you think?

Judiciary makes case for mediation

Monday, January 04, 2010

Mediation, a process that aims to resolve disputes and keep them out of the courts, takes another step forward today with the Judiciary opening an information office on the practice.
The Mediation Information Office has been established under the Judiciary’s Practice Direction 31 on Mediation, which came into operation last Friday.

The practice direction covers relevant civil cases in the Court of First Instance and District Court. It contains the procedure to be followed by disputing or litigating parties to engage in mediation after the commencement of a court action by writ.

The office provides litigants with information to help them consider whether they should attempt mediation to resolve their disputes, and to enable them to seek it from professional bodies.

“The target users are parties who have commenced or are about to commence civil proceedings in the High Court or District Court, including unrepresented litigants,” a spokesman for the Judiciary said yesterday.

The office, which is in the High Court Building in Queensway, will serve as a focal point of inquiries for all court-related mediation.

“As the Judiciary has to maintain its independent and impartial position, mediation will not be provided by its staff but by accredited mediators to be appointed by the parties themselves,” the spokesman said. [Emphasis added]

Secretary for Justice Wong Yan-lung is leading a cross-sector working group to promote mediation. A report is to be released for public consultation early this year.

If anyone likes the idea of a quick trip to Florence then this seminar might be just the reason to go.

Click image to download programme.

An article in The Scientist today has got me thinking. It is about a new discovery about the part of the brain that operates to achieve “goal-directed” actions. It says

“Exposure to chronic stress causes alterations in brain anatomy that may compel rats to rely too much on routine, even when a change in circumstances calls for a change in behavior.”

This development really interests me because it has significant implications for our understanding the behavior of parties at mediation and for understanding why mediators may become more evaluative or “expert” when stressed. I.e. default to expertise, techniques and approaches from a previous life in order to achieve “the goal” of settlement.

People typically had been thinking about chronic stress affecting circuits in the frontal cortex and circuits in the hippocampus. To look at the striatum, which controls a lot of our moment-by-moment behavior, is a really new direction.

and

Chronic stress can also result in other behavioral symptoms, such as deficits in memory or spatial navigation. These changes are believed to be triggered by the release of corticosteroids, causing neuronal reorganization, primarily in the hippocampus and medial prefrontal cortex (mPFC). When the researchers measured the volume and density of various brains structures in stressed and unstressed rats, they found several differences. Most notably, the prelimbic cortex (PL) of the mPFC and the dorsomedial striatum (DMS) — both implicated in goal-directed actions — were reduced in size in stressed rats, while the dorsolateral striatum (DLS) — necessary for habit formation — was enlarged, suggesting a neurological mechanism for how stress affected their behavior.

Have you ever forgotten what you were going to say at the end of a long mediation or lost your way to the bathroom?

The mediator adds considerable value to negotiations by encouraging and supporting the parties not to do what they might do on automatic pilot.  We can’t be stressed if we are to going to help them do something differently because we are for the most part in the moment-by-moment behavior mode managing the process appropriately for the benefit of the parties.

As far as mediators are concerned the research findings go some way to explaining why mediators can often default to language, approaches and interventions that they know better than the ones they learned on their mediator training course.

I am looking forward to hearing more about his development.

For those who would like to learn how to get out of a stressed state I can recommend emWave by HeartMath. The software and hardware allow you to see the effects of stress and provide immediate feedback so you can develop quick techniques to restore “coherence”. It is now available for Mac  as well as PC.

heart rhythm - stressed

heart rhythm - not stressed

software provides immediate feedback on techniques for developing coherence