In my last blog I wrote about Jonathan Powell’s book ‘Talking to Terrorists’. This week, continuing the theme, 10 ‘Do’s and Don’ts’ on the day.

1 Agree something, even something minor, early to build confidence. Or put a proposal on the table so attractive that the other party simply cannot afford to walk away

2 Listen for nuances. For what people are, and aren’t, saying including ‘the gaps that indicate what they aren’t ruling out’

3 Ask ‘why’. To ascertain what their real position is or why symbolic issues are important to them. Especially as these tend to be more significant than substantial

4 Cut to the chase. Get to your bottom line quickly. If you are clear and consistent they will understand your signals and be more willing to settle quickly

5 Don’t play tricks. Outwitting someone rarely lasts. It just undermines your trustworthiness. Or as Henry Kissinger revealingly said ‘It is essential to cultivate the appearance of reliability in negotiations’

6 Be patient and phlegmatic. Mediation is like jazz. It is not linear. Sometimes, when things ‘look like they are surging ahead they are in fact about to collapse’. Or when they seem at their bleakest, there’s about to be a breakthrough. Focus on your ultimate goal. But be flexible on tactics

7 Know when to stop haggling. There’s often a critical point at which marginal gains aren’t worth the loss of confidence. The deal will either rapidly come together then or stagnate.

8 Beware of spoilers… They can bring negotiations crashing down. Whether they do or not depends on how you react. Stay calm. Maybe even offer a sweetener so that they feel they have won something late on. Better they sign with a smile than a grimace.

9 … or an outbreak of ‘buyers remorse’

10 Win control of the pen. If you can’t, think about counter-proposals that sound the same but work in your favour.

In a couple of weeks, tactics worth considering but that can sometimes backfire. Like ‘finding an ambiguous form of words on which everyone can agree while they wait for something to change’, a skill that Robert Cooper characterised as being essential for diplomats.

Eighteen years ago last Friday the Northern Ireland peace process was signed.  Jonathan Powell, Britain’s chief negotiator, has written ‘Talking to Terrorists’, an invaluable read for anyone interested, or caught up, in conflict.  Packed with fascinating stories about various peace processes, leaders and negotiators it contains a war chest of insightful nuggets, many of which are as relevant for commercial mediation.  This week, I concentrate on starting the process.

1 Should one sit down and talk with the other side?

‘In the end, you have to… It is a question of when and how, not whether’ and the same principle applies to commercial mediation, given that over 60% of High Court cases end up being mediated.  ‘It may not always be the right moment… but it is always right to talk, because ‘negotiating is not a question of forgiving or forgetting the past, but holding a pragmatic position about the future’

2 When’s the right time?

JFK said ‘It is never too early to try: and it’s never too late to talk’.  The trick is in determining how best to ‘ripen the conflict’

3 Why is a ceasefire important?

Because ‘the longer it goes on, the harder it is to go back’

4 What about setting pre-conditions to a mediation?

Beyond insisting on a ceasefire, ‘almost always a bad idea’

5 But isn’t mediation about compromising?

No, not if you mean ‘giving away your position’. Compromising is  about ‘working out what the other side’s interests are and seeing if you can meet them without sacrificing your own’.  Powell talks about Mandela’s ‘willingness to make concessions, but not about what was important to him.  With respect to his key principles, he was unmovable’ and would deflect unwelcome proposals with the words ‘But something else could be considered’

6 Why is sitting face to face important?

Because otherwise you can’t be certain how far the parties really agree.  ‘You need to meet to see their body language… The debates may be more emotional as a result, but they can have a cathartic effect that makes a lasting agreement possible.

‘The very act of negotiating can build trust’.  This can be particularly important where there is also a relationship involved.    Finally, my favourite quotation, which captures the essence of what mediation is about:-

‘The good news is there is light at the end of tunnel. The bad news? There is no tunnel.’ 

That’s the challenge. Constructing the tunnel. 

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.

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?

*https://www.judiciary.gov.uk/wp-content/uploads/2016/01/fixedcostslecture-1.pdf

Great-Private-Eye-cartoon.pdf
10th July

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 truth, i.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 true, i.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, onforb.es/1GMC3C3, look out for:

1 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

3 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’ http://goo.gl/1rnV56. For further details or if you would like me to come in and organise a bespoke session, just let me know.

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.