The 6 things you need to settle a dispute – and something else I do as a mediator *

Most people find it harder to listen to people they are arguing with or don’t like. It requires effort and discipline. The challenge is not getting people to talk but getting them to listen.

While no disputes are the same, when it comes to settling them the methods used are often strikingly similar. Six principles apply. George Mitchell, the US Senator who chaired the Northern Ireland peace talks referred to them in the context of brokering peace settlements but they are as pertinent, irrespective of whether you are looking to settle a commercial dispute with another business, a professional negligence claim, a probate case or a partnership fall-out. Here they are:

1 Preparation: People need to understand the history and be properly informed. To this, I would add two things. They need to understand the people and what would sway them. And they need to be able to move on from ‘How we got to this’ to ‘Where do we go from here?’

* As a mediator, where a case warrants it, I also like to meet the protagonists and their team individually for a confidential chat a few days before a mediation. I find this improves the chances of the dispute settling. It also accelerates the process and I know how many lawyers are fed up with mediations that only seem to get going at 3pm. It can be invaluable where feelings are running high or where a party hasn’t mediated before or doesn’t appear to understand someone else’s business.

2 Ownership: The protagonists need to take ownership of the issues. Because they are going to have to live with the consequences.

3 Know your objectives and your bottom line: And theirs too.

4 Perseverance: Keep focused on what you want to achieve. Keep moving forward.

5 Patience: You need a reservoir of it. There will be setbacks. As Mike Tyson said ‘Everyone has a plan until they get punched in the mouth’.

6 Be prepared to take a risk & lead by example:  Sometimes you need a spark to drive the wheel of change – especially if you are operating against a backdrop of mistrust or a disintegrating relationship.

In my next blog, I will be writing about what you can learn from talking to terrorists and about being prepared to take a risk.

Coming soon to a court near you: Fixed Litigation Costs

If Lord Justice Jackson has his way, fixed recoverable litigation costs will be introduced this year – across the whole of the fast track, for multi-track cases up to £250,000 and, longer term possibly for bigger ticket litigation too. He has published a 4 band grid for claims up to £250,000 with fixed costs at different litigation stages and judicial discretion to award percentage uplifts for particularly complex or work heavy cases. There’s even a 15% ‘London weighting’.

It is now up to the government to take soundings. Strong resistance is expected from the legal profession but financially, it could be an inexpensive coup. The government could claim a huge stride forward for SME’s and individuals in obtaining access to justice, added to which eliminating the need for costs budgeting and  assessment should also substantially reduce demands made on the courts.

It would give clients certainty over cost, especially over the other side’s legal costs, while ensuring that recoverable costs are proportionate to a litigation. Arguably, there could be upsides for litigators. Removing that risk at the outset might lead more clients to pursuing litigation – and there’s nothing to stop a client agreeing to pay whatever their lawyers wish to charge.

Jackson delivered his thoughts during this year’s IPA lecture*. He made particular reference to the German and New Zealand systems and their introduction of meaningful price bands to address potential shortcomings on particularly complex or task-heavy cases.

It may not seem fair for litigators to have to adjust their business models to cope with the new fee regime but it is symptomatic of other industries that have been disrupted to meet consumer interest. Even if that disruption has usually been due to technological advances, not government intervention.

Clients don’t want to be charged depending on how fat a file is – and even if the profession can resist the current onslaught, it is hard to see this going away. But maybe the model can also be adjusted to suit litigators. What about if a client has a dispute and you get them the solution they want – but really quickly? Shouldn’t that warrant a premium, a la Amazon prime?

What do you think?




Don’t under-estimate the power of an apology – especially when you want to resolve a dispute

Good, practical article by the Medical Defence Union’s head of professional standards about how to get an apology right.
Written against the background of the recently introduced ‘duty of candour’ that has been developed for hospitals and healthcare bodies – but his advice is relevant to most commercial disputes, or let’s face it, most arguments.

How to get the truth out of anyone

Last month I explained how to spot when someone is telling a lie. This week, based on the book ‘Get the Truth: Former CIA Officers Teach You How to Persuade Anyone To Tell All’, are the CIA’s nine tried and tested methods for making someone tell the truth. Odd to stop at nine, no? Makes you wonder what the tenth method might be.
1. Be engaged, calm, empathetic and sincere
A ‘guilty’ person may be seeking to be ‘understood’. Being ‘understood’ may make them feel they are being ‘forgiven’. Slow down your speech. Lower your voice
2. Help the person rationalise their actions
Get them to focus on the reasons you are giving them to see telling the truth as a viable option. Normalise their actions. It may help weaken their resolve to withhold the truth
3. Minimize the seriousness of the situation
The more you can downplay the consequences of the situation, the more comfortable they will be in sharing the information you are looking for and the less they will see you as an adversary
4. Socialise the situation
The more someone feels that they did something bad and that people may think ill of them, the more reluctant they will be to admit it. Normalise the behaviour and they shouldn’t feel so alone
5. Reassure the individual
A person is more likely to ‘fess up’ if they feel that the finger isn’t being pointed solely at them
6. Don’t allow the person to voice a lie or a denial
If someone is lying ‘you don’t want their lips moving’. The greater the opportunity someone is given to articulate a lie, the more psychologically entrenched they become and the less disposed to reversing the position and telling you the truth
7. Keep repeating things
The more frequently we hear something, the likelier we are to believe it. If they are in denial, you do the talking. Keep rationalising, minimising, socialising and projecting the blame to help the person, even if only temporarily, see things your way
8. Use implicit language
The more implicit your language is, the likelier they may buy in to what you are saying, e.g. tell the person that you want to work with them to help get the matter ‘resolved’ and let their mind take it where they will. To you, “resolved” might mean a conviction. To them, it might mean something they can live with. Avoid language associated with negative consequences: i.e. you ‘took’, rather than ‘stole’, the jewellery
9. Don’t judge
Your goal is to get the truth. That will be much harder to do if the person feels you are judging or reprimanding them. You want them to see you as a confidant, not an arbiter of their fate

How to tell when someone is lying: Tips from former CIA officers

Why do people lie?

Well, according to three former CIA officers, Philip Houston, Michael Floyd, and Susan Carnicero, co-authors of ‘Get the Truth: Former CIA Officers Teach You How to Persuade Anyone To Tell All’, the three biggest reasons are:

1 Fearing the negative consequences of disclosing the truthi.e. concealing information out of a fear of what will happen if that information is revealed. This type of lie often involves an act of wrongdoing that the person wants to hide

2 Wanting others to believe something about you that isn’t truei.e as a way of enhancing a positive image that others may have of them

3 Wanting to avoid hurting someone’s feelings

So, how do you spot a lie? The five tell-tale signs (according to Kathy Caprino, who interviewed them for Forbes magazine,, look out for:

Evasion: i.e. ‘linguistic concealment’, like failing to answer a question

2 Persuasion: i.e. where someone tries to convince you of something else, instead of conveying the information that you are asking for

Manipulation: i.e. where they try to disrupt your game plan, say by failing to answer a simple question

4 Aggression: This type of behaviour is typically exhibited by someone who feels cornered. Maybe by attacking your credibility or lashing out to get you to back off

5 Reaction: Here the behaviour, such as hand-to-face activity, is automatically triggered by someone’s nervous system. Like when a question creates a spike in anxiety.

So what’s key?

Look out for a cluster, i.e. a combination of at least two of these tell-tale signs. The signs can be verbal or non-verbal.

If the first tell-tale sign occurs within five seconds of the stimulus (i.e. your question), ‘you can reliably conclude that the behaviour was triggered by it’. So now you know.

Next week: The CIA’s nine ‘tried and tested’ methods for getting the truth out of anyone. Happily, none require a ‘Don’t try this at home’ warning.

Separately, I am giving a series of training workshops, starting on 21st May with ‘Settling Intractable Disputes Successfully & Getting Clients What They Want’ For further details or if you would like me to come in and organise a bespoke session, just let me know.

Our next prime minister will almost certainly have gone to school with Boris. Isn’t that a bit weird?

Ten days to go and, as Jeremy Paxman pointed out in the Financial Times, our choice is between a man who went to primary school with Boris Johnson, and one who went to secondary school with him.

It is quite possible that whoever ‘wins’ will fail to secure enough votes to form a majority government. Apparently there are as many as 11 different possible outcomes. Faced with a similar possibility in 2010 civil servants prepared by simulating different scenarios but gave up after being unable to strike any deals. According to the then cabinet secretary, Gus O’Donnell, in a Financial Times article earlier this year, they concluded that ‘if politicians were to make progress, they would need to be more flexible than our teams’. This ought to be cause for concern but, if mediations are anything to go by, I suspect that any obstacles will be overcome.

As a mediator, dealing with parties who feel that they are miles apart and are experiencing difficulties trying to bridge the gaps is all too familiar. Yet given a genuine desire to find a solution and someone to help guide them safely over the bumps, they invariably get there. ‘Principles’ standing in the way soon dissolve, especially when the situation is put in perspective. Here, sadly, it will be less about whatever policies a newly formed government would like to implement and more about managing a country that is ‘near-bankruptcy’, with options limited unless taxes rise significantly or, as Paxman suggests ‘great swathes of public spending cease to exist’. For all the talk about possible tax cuts, these will probably deliver less for most families than the recent petrol price fall.

The real reason why the parties will probably forge a workable solution though is because, unlike Gus O’Donnell’s civil servants, their need will be borne out of self-interest. Ultimately, it will be less about ‘do we/don’t we?’ than ‘how can we’? If the choice is between governing and oblivion, you can bet on politicians to reach what at first might seem surprising ‘accommodations’. Possibly with unlikely partners too. There have been frequent speculations about possible collaborations with the SNP and of a prime minister having to run things past Holyrood, culminating in last week’s Daily Mail front page story branding Nicola Sturgeon as ‘the most dangerous woman in Britain’. Whoever becomes prime minister might have to face the consequences – media and opposition attacks and possibly challenges from alienated party supporters let down by commitments that were ‘negotiated away’ – but at least he would be there to do so.

Plus ca change it seems, except that whoever wins this election, it is quite possible that the next one will be fought not by someone who went to school with Boris but by the man who once proclaimed that ‘my chances of being PM are about as good as the chances of finding Elvis on Mars, or my being reincarnated as an olive’.

Next week – and I promise this wasn’t brought on by the election – I will be writing about why people lie and offering advice from 3 former CIA officers on the 9 ways to get the truth out of anyone. In the meantime, I will leave you with a (possibly mythical) story involving Peter Mandelson. Buying supper at a chippie in his former Hartlepool constituency, he asked for haddock, chips and ‘some of that guacamole’ – mistaking the mushy peas for avocado dip.

See you in court? Court fee hikes coming Monday

You may have heard me explain this before but, below a certain level, bringing a claim through the courts is unlikely to be cost-effective. Where that level is depends on the client and the circumstances but I have heard anything from £50,000 to £300,000.
Well from Monday, that ‘level’ gets nudged a little higher as the cost of issuing a claim at court is being hiked up (see below). The Law Society campaigned against the increases but they were sanctioned last night in the House of Lords.
It makes financial sense for the government – the hope is that the levy will bring in £120m a year to fund the court service – but for businesses, mediation may well be the smarter option. And from Monday, in most cases, mediation fees will also cost less than paying the court fee to file the claim.
Value of claim £ Fee now £ (paper) New fee £ Increase in fee £ % increase
20,000 610 1,000 390 64%
40,000 610 2,000 1,390 228%
90,000 910 4,500 3,590 395%
150,000 1,315 7,500 6,185 470%
190,000 1,315 9,500 8,185 622%
200,000 1,515 10,000 8,725 576%
250,000 1,720 10,000 8,280 481%

When it comes to resolving disputes, are we giving business users what they want?

What are the real drivers for business users? If the results of last month’s international dispute resolution convention* are anything to go on, by far the biggest reasons are risk reduction and cost reduction. Are these findings surprising? Not particularly but some of the other findings are. They suggest that, while we think we know best, we aren’t quite giving business users what they really want. When I say ‘we’, I mean litigators, arbitrators, mediators and mediation providers.
Over 75% of business ‘users’ said that mediation should be used:
a) as early as possible in a dispute’s life cycle
b) as part of the deal-making process – whether or not a dispute had arisen.
Over 66% of ‘users’ favoured the use of both mandatory mediation and contractual clauses requiring parties to mediate prior to litigating or arbitrating.
The results reveal a stark disparity between what users say they want and what dispute resolution professionals (i.e. ‘suppliers’) think clients need. For suppliers, the most important factor in dispute resolution is ‘focusing on the key issues’, with features like risk reduction and cost reduction being considered rather less important (13% and 15% respectively) and responses to the other above propositions being at best only half as enthusiastic as users.
These may be freak results, time will tell, but they suggest that suppliers and users are misaligned.
I sometimes see a similar disconnect when business users are looking for a solution to a dispute. A vacuum, if you like, between the sorts of answers that their commercial and legal teams feel they can achieve with their counterparts and the results that litigation may offer. In part that is down to our legal education but often the solution can be as simple as bringing in someone one step removed early enough in a dispute’s life cycle to cut through obstacles and help people find a new way forward. It is generally much easier for that person to open a fresh line of dialogue and change the dynamics while scratching under the surface to uncover the real obstacles to settlement. Effectively, he or she can then act on behalf of ‘the deal’ and help the protagonists either close the deal, or if they prefer, separate sensibly, while managing the transition sensitively and productively. As so often with mediation, the main challenge in implementing this more widely is less to do with its effectiveness – and more that people are simply unfamiliar with it as an option.

How to get what you want from a meeting

In my last blog, I offered some tips on working out how best to resolve a dispute with a business partner head on. So, once you have arranged to meet, how do you go about changing the dynamics between you so that you are more likely to have a productive conversation and come away from the meeting getting what you want?

1 Focus on your endgame and prepare for the meeting. 

As in marriage, arguing about who’s right and who’s wrong won’t provide the answers you need to move forward. You are in quicksand. What matters is where you go from here and how.
How do you want to look back on this in three months’ time?
What do you want?
What would you give up if you had to?
Put yourself in their shoes and ask the same questions.
What do you think is motivating them?
How you are going to persuade them?
What can you say to make them more receptive?
How will you say it?
Prepare what you want to say at the meeting. It will help you keep your eyes on the prize and give you a sense of being in control.
 2 Think about hiring a facilitator 
If you are concerned that things could get heated or go off-kilter, much better to have someone with no skin in the game to manage the process and keep everyone focused on what they want to achieve – and away from what is separating them.
A facilitator or neutral chair can clear the air, unlock impasses and help you have awkward conversations safely and constructively.
It doesn’t matter how good a negotiator you are, you can’t referee it too if someone else won’t let you. Or remove the sting if they perceive you as part of the problem.
3 Fight the problem. Not the person
State your case clearly and factually. Reiterate what you have in common. Identify joint obstacles that need to be overcome. Generate and explore options. Make sure everyone understands what they have to lose – and I don’t just mean financially.
If you can’t agree a point, push to see how just close you can get. Even if you don’t settle everything you will have a much better sense of what it will take to do so and what the real hurdles are, both from what people say and – only 5 per cent of communication comes from the spoken word – from their tone and body language.
4 Bite your tongue. Remember how powerful not reacting can be. Avoid being confrontational. It makes people more defensive, not more collaborative. Instead, explain how their actions and behaviour make you feel. No one can disagree with how you feel. Not really.
Be calm and open. Don’t be defensive. You don’t have to agree with what someone says but empathising can make a real difference. As can asking someone for suggestions and showing that you are considering them constructively. Don’t underestimate the power of apology. Done properly, saying sorry can have a disproportionate effect. Just don’t admit liability.
5 Sign it. Assuming you settle, get a binding agreement drawn up and signed before you leave.