Stephen Twist's Blog

Stephen Twist's Blog

Barrister, mediator, arbitrator, restorative justice facilitator

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E-Mediation: Arms length negotiation

Law & MediationPosted by Stephen Twist 20 Oct, 2014 06:32PM

Knowing that I have been involved in e-mediation for over ten years, mediators and clients ask me about the virtual mediation process, and I am always happy to share.

For e-mediaton, I am sure that there are as many different styles and approaches as there are mediators who practice it, but I have found a way which works for me, and for which clients have expressed their confidence.

The first consideration in mediating at distance, is to develop a really robust process. So different from face-to-face meetings, where mediators and the parties have extended communication channels, e-mediation loses of all of the non-verbal 'cues and tells' that make the mediation process so immediate. What you are left with is largely words on a page. And with that comes a sizeable problem. Words do not always mean what you intend them to mean.

Without the softening inflection of speech, the written word can appear quite harsh. Those familiar with social media, such as Facebook and Twitter will immediately recognise the problem... "I never intended it to sound like that, or to be taken that way"....but it was.

Even in the most hard-nosed commercial e-facilitations, Chief Executives, their directors and legal teams can get uptight about something that was fairly innocently written, but has appeared more challenging when read.

So, before embarking on the process, parties need careful direction about what to commit to writing, how they will be expected to express themselves, and the implications of not following the rules.

I achieve this by using a tight staircase of steps, leading to set platforms. Clients need to understand that the process is fairly rigid, to ensure safe management. "You cannot leap to step three, before you have completed steps one and two". And every so often, we pause on the landing or mezzanine so that we can evaluate how we are getting on.

My 'Step 1' comprises an introduction letter addressed and sent to all parties simultaneously, to inform them about the process and method, and set out 'Do you....." questions - recording their agreement to the process and ground rules. This is a shared document, and commences the 'annotated' process, so that all parties can see that the agreement has been formed, and the process set.

Once shared, I summarise the options that they have elected and agreed, covering their expectations of the process, such as whether they wish to speak on line, how any confidential messages are to be handled, and what to do should impasse be reached.

'Step 2' is generally directed to obtaining positions, which are set out by the parties or their lawyers in pithy written summaries. These are key documents and require great care. The last thing the parties need is for an issue to be raised later in the process that has escaped their summary.

'Step 3' is the first platform:

A. Your summaries show that the following points are agreed between you:

B. Your positions reveal the following matters are not agreed:

C. Your positions are not clear as to the following matters:

D. Some ideas/options for discussion

E. Points of guidance for approach

"May I propose a target date of .... for your replies to Step 3 and your revised proposals. If you have any issues with this step, please notify me immediately".

Following this, subsequent steps become more specific to the issues yet to be agreed.

It is essential to record what has been agreed and what remains to be agreed from the previous step, and to secure the parties' written confirmation. This provides a 'stop' behind which they are not permitted to return.

For the disputed issues I set out 'Reality Check' questions for each rival proposition from each party, and invite them to consider or advance proposals. Yes - accompanying each step, the parties are provided with 'sample options', making the process more directive than a face-to-face meeting. Some mediators may be uncomfortable with this, but my experience suggests that client satisfaction leaps when reasonable possibilities are proposed, even if they choose not to adopt any of them.

The parties are expected to use the 'Step document' to record their answers and comments (annotating with individual colour-coded replies). This avoids the risk of producing inadvertently, unshared documents.

By adhering to a process that steps them from one agreed position to the next, parties tend to make their own progress towards a final agreement. Needless to say, some parties still need a degree of 'hand-holding' - by Skype or private message - but generally they quickly learn the way in which progress can be made and, in the rare event of a failure to agree all issues, they do have the written framework to hand to their legal teams should they wish to broker final solutions, or litigate narrow issues.

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