A more holistic approach to disputes emphasises value of negotiation and settlement.

 

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I did something recently that I have not done for well over two years. I addressed a large conference audience – in person. Prior to arriving at the venue, I had flashbacks to early days as a law apprentice (yes, one of those!) making an appearance in the Summary Cause Court in Edinburgh Sheriff Court. Much anxiety. However, stepping onto the stage, I felt a surge of energy which I realised I had missed for a long time. Maybe, I reflected, this is why ageing rock stars can’t give up touring even well into their seventies.

The event was the London International Disputes Week (LIDW) two-day conference in Westminster. The theme was “Dispute Resolution – Global, Sustainable, Ethical?”

and my topic was the Mediators’ Green Pledge which now has over 600 signatories from over 50 countries around the world, with 15 translations. My contribution was part of an opening three-person keynote address, in which I was preceded by the promoters of the Arbitrators’ and Litigators’ Green Pledges.

We had much in common as we encouraged delegates to reduce their carbon footprints and I was able to add the dimension that mediation, of itself, offers a distinctive way to reduce carbon emissions in many disputes and will often provide a greener form of dispute resolution. Among the questions I posed were these: “If we assume that the facts and the science – indeed the urgency – are now clear – and they are (as a later session with experts made abundantly clear) – what changes must we make to really address this? What would be the implications – really – for you, your clients and your practice?”

The keynote contributions were well received and yet we have to acknowledge that this is not at all easy, especially when many people crave a return to the way things were before the pandemic, however unsustainable that might be. It was good to hear of corporate support for the Green Pledges.

Indeed, in what seemed to be a largely litigation-focused audience, there was much discussion about the adverse impact of aggressive behaviour generally, including in letter writing. “If you wouldn’t like your letter to be read out in court, don’t write it” was one piece of advice. One senior member of the judiciary reported that judges look at the correspondence files first. Letters which are personally insulting were criticised not just from a tactical viewpoint but because of the harmful impact they can have, especially on junior lawyers. Put yourself in the shoes of the letter’s recipient was the message – what would it be like to receive this?

The awareness of mental health issues was striking. In 2021, we learned, LawCare revealed in its “Life in the Law” survey that 42% of lawyers in the UK identified as being at a high risk of burn out, with 69% reporting that they had experienced mental ill-health in the previous twelve months. We were asked: “While our raison d’etre is the resolution of disputes, are the practices and procedures we use and deploy fit for purpose in today’s environment?”

This led to a full discussion by both lawyers and clients about the need for a more holistic approach to disputes, emphasising the value of negotiation and settlement, enhancing training in these skills, broadening thinking from legal aspects to commercial interests, and emphasising early assessment of risks and likely outcomes.

The topic of negotiation was the theme taken up by another keynote speaker, Tony Blair’s former Chief of Staff and the architect of the Good Friday Agreement, Jonathan Powell. In a mini-master class, he emphasised the importance of building trust, showing respect, listening, sharing risks, curiosity, imagination, patience, and being optimistic over the long term, however hard things may seem now. Very few people are irrational, he said, but you need to understand where they are coming from. In discussion, he recognised that negotiation is often misunderstood as either a reason to be aggressive or a sign of being weak.

Applying these ideas to the current Ukraine situation, Powell expressed concerns about the approach taken by some Western leaders. Unnecessary escalation should be avoided; we need to keep trying to build bridges for the negotiations which inevitably will come. Powell emphasised the importance of having a process, to avoid a vacuum. If there is to be light at the end of the tunnel, he reminded us, you need to build the tunnel.

John Sturrock, The Scotsman, Monday 23rd May 2022

 

 

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