I consider myself a lucky man – I had the great pleasure to know and learn from the late David Richbell, one of IPOS’ best-known mediators. David was among the brave few who led the first mediation revolution which championed mediation as an alternative to litigation. David’s experience included conducting over 1000 mediations and working to address some of the most intractable problems in British society, such as the near schism in the Church of England over the introduction of women priests.
David and I shared a view in more recent times that a second revolution was required, where commercial mediation could learn from other areas of mediation, such as workplace and community, about how they achieve breakthroughs by focusing much more on the RELATIONSHIPS between parties and how they FEEL. This focus on what many business leaders and lawyers regard as “pink and fluffy” and “not for me” is actually really hardcore stuff. As a result, David, myself and the other DRP consultants wrote Volcano Insurance as the proactive guide to help leaders avoid, manage and resolve disputes.
One thing that always strikes me in all my workplace mediations is how utterly convinced each party are that they are 100% right and the other party 100% wrong. Yet both typically have credible explanations for their view, given their interpretation of events. I often think it would be incredibly useful to enable one party to hear the other briefing the mediator. We would hear much more of, and much earlier, the comments I hear halfway through the mediation of “I didn’t realise I made you feel that way” or “I didn’t realise it had caused such an impact on you”.
I typically get to this point of enlightenment by walking the parties separately, and then together, through various paths in the ‘forest of empathy’. Practising empathy – “walking in the shoes of the other” – involves encouraging each party to think hard about the needs of the other – this is challenging. It often causes tears and anxiety. But it helps produce the conditions for parties to find a way through. Questions each party works through such as, “how is the other party feeling?”, “why are they feeling that way?”, and “what can I do to address the issues that are causing that stress?” tend to then lead on to “are you (the Mediator) working with the other party to get them to understand my issues, and where I’m coming from? – Oh, you are! That’s good to know. In that case, I’ll make sure I really tell you what I need for me, and then I will have a think about what I can do about the other party’s needs”.
The interesting link back to commercial mediation is that this type of approach could lead to more solutions where the parties agree to resolve their dispute by agreeing to a different way forward, maybe a win-win achieved by changing the parameters and continuing to work together, as opposed to parting and splitting the difference. Commercial mediation often focuses on the issues in claim and counterclaim, rather than the issues behind them. Arguably, spending more time looking at the relationships between the parties and asking each party to stand in the shoes of the other will create better dialogue and faster resolution.
Enlightened business leaders agree to mediation during a commercial dispute before they are forced to do so. Really enlightened leaders push for mediation as early as possible in the process.
Brave and really enlightened leaders will now be implementing many of the tips set out in this guide, such as:
- training their staff on how to have difficult conversations and how to negotiate, so that business problems are resolved without a dispute arising
- finding all sorts of ways to encourage their people to deploy empathy in all their business dealings – with the colleague, the supplier and the customer
Volcano Insurance is published as an eBook by Urbane Publications (May 2020) and is available from Amazon