Dispute Avoidance John Burgess
President’s
Forum 17 September 2002.
reported by Martin Moorhead
Our new President, a relaxed
Tony Canham, gave an entertaining presentation when he made the traditional
annual Presidential visit to the South-East Branch. He opened by saying that, as President, he had no “plans” for the
Chartered Institute. He then followed
this with a wide-ranging talk on what he considered to be the immediate
problems facing the Institute. He said that it was vital that there was an
increase in the membership. He referred to the necessity for revising the
operation of the Professional Complaints Committee (the PCC), which at present
could expose the Institute to substantial costs. He spoke of the current
difficulties being experienced in dealing with revised requirements of the
Charity Commissioners. He said that his personal target in his year of office was
to try and reduce the numbers of people seeking pupillage. Finally, and most
emotive for the members, he talked of the possibility of changing the name of
the Chartered Institute to reflect more accurately its involvement in the
various other methods of dispute resolution.
Regarding the PCC he
proposed introducing an interim stage to the process which would be a peer
group review. Complaints would first go to the Institute’s legal department for
vetting. If the complaint was to proceed,
it would be passed on to the peer group for review and only after this review
would it possibly pass on to the PCC. Regarding any change of name he stressed
that the words Chartered and Arbitrator would have to be included in the new
name as this was the Institute’s essential raison d’être. He said that,
ultimately, the final choice of any new name would be put to the members
themselves for their vote.
In response to
questions from the floor, he said that the names of members who were Chartered
Arbitrators would be made available to the general public at the Institute’s
website. He said that the title of Chartered Arbitrator carried great status
around the world and was recognised as the gold standard of excellence. He was planning to visit the United States
later in his presidency and was going to assist in a course dedicated to
training people there up to this standard.
Also, in response to
questions regarding a new name for the Institute, he pointed out that by
broadening its appeal to include other dispute resolvers, the Institute could
provide a home for the members of the many disparate organisations that cater
for mediators, adjudicators etc. This would strengthen the Institute and give
it a more powerful voice when dealing with other bodies, both in the UK and
overseas.
Our own branch chairman
asked three pertinent questions, namely ‘When can we see the return of the
Director General who has been away for an operation?’ Answer – ‘At the end of the month.’ Next, and very pertinent, ‘Will the subs be increased this year?’
Answer – ‘No’. Finally, ‘Will there be
an Annual Conference?’? Answer – 'Yes,
in Holland during next May.’
Proposing the vote of
thanks, James Mumford said that, although at the start Tony had said that he
had no plans, he certainly had shown great breadth of vision. The members
showed by their applause that they clearly appreciated the visit from the
President, who had taken time from his extremely busy schedule to give them the
benefit of his thoughts.
The formal part of the
evening was concluded by our Chairman presenting Tony with a bottle of whiskey
on behalf of the Branch. Tony generously returned this as a prize for the first
Branch member to bring in two new members to the Institute. The meeting then
continued with informal chats over the excellent buffet.
Mock mediation 15 October 2002
reported by Harvey Mason
On 15 October the
branch put on a ―demonstration mediation. The chairman and ―architect of the
event was Rod O’Driscoll, with the mediator’s role taken by John Burgess, who
has considerable experience in this field. James Mumford and Peter Solari of
the branch committee played the parties in the dispute.
The audience was split
into two halves with each receiving summary notes relating to one party in the
dispute only. Due to time restrictions the demonstration was in an abridged
form, with Rod explaining and highlighting pertinent aspects along the way.
John Burgess had not received the papers in advance, and he later admitted that the enthusiasm with which James and
Peter played their parts had tested him as hard as most of the cases he had
dealt with in his whole experience.
The mediation started
with a meeting with the parties jointly, following telephone discussions the
mediator had had with them in advance. The parties were allowed to summarise
their case and comment on that of the other. During the course of this exchange
key issues were noted and confirmed back to the parties. They then left the
room and, by agreement, each was called back in turn for a private caucus
meeting with the mediator. John and Rod explained that the purpose of the
caucus meetings was to try to elicit from the parties the areas of potential
agreement and identify what information might be relayed to the other party at
the mediator’s discretion, but with the prior approval of the parties.
At the end the audience
was invited to raise questions and comment on the proceedings. Of those raising
questions and making comment Francis Miller highlighted points from his own
wide experience of disputes and said that he had always found that the parties
in construction mediations conducted themselves in a controlled manner,
especially where they retained lawyers to represent them. In response to a
point raised by Joseph Wan, Rod explained the difference between ‘Without
Prejudice’ and ‘?Confidential’ communications in the context of mediation. It
was Rod’s view that, as adjudication had significantly reduced the number of
arbitrations, mediation would eventually have the same effect on adjudication.
Despite the
restrictions on time this was by far the best mock mediation I have attended,
having been involved in live mediations in a professional capacity; and Rod,
John, James and Peter should be complimented for their efforts. This type of
event is proving increasingly popular with attendees, and it is the aim of the
branch to hold further similar events including an adjudication workshop where
people can attend and put questions or scenarios they are dealing with to an
experienced panel.
You might think that a
talk on dispute avoidance to a body that makes its living out of dispute resolution
is unlikely to be a great success. If you did, you would be wrong. John
Burgess’s enthusiasm for the subject is legendary and totally overwhelming. He
started by rearranging the furniture, to break down the barrier between the
speaker and the audience (all good negotiating stuff), and then proceeded to
rearrange our attitudes.
With an eight page
handout of topics to be covered (no doubt available from the Secretary if you
beg), John had to go fast, though this is rarely a problem for him. Firstly, the audience were invited to
comment on the causes of disputes and the reasons for avoidance (good
technique: get the other side to put forward suggestions). After discussion and
much use of the flip chart, it was agreed that people were usually the problem
and disputes are best avoided because they are expensive, distracting and
rarely achieve a satisfactory conclusion for either side. Restricting his comments to the avoidance of
commercial disputes, John ―emphasised that it was important to separate the
interests of the parties from those of the individuals.
With dispute avoidance
being largely a matter of negotiation, effective communication is essential. It
was emphasised that much of this communication is non- ―verbal so the whole
lay-out of your presentation or negotiations is important. This form of communication is fundamental to
humans; John said that he had been fascinated by the Robert Winston series on
TV, Basic Instincts, which set these principles in the context of basic human
nature.
Turning to the
construction industry, avoid disputes by making fair contracts, with risk
allocated in accordance with who can manage it best. Try to anticipate problems
before they arise and understand people’s real needs; they can often be met at
little real cost to the other party if the problem is properly understood.
Always negotiate and try to avoid ―“contractual”? letters; back them up with
face-to-face discussions if they can’t be avoided. Consider the use of a third
party neutral if communications are difficult but, whatever happens, keep
talking. All obvious stuff, you will be muttering under your breath, but how
often do we actually do it?
Finally, follow John’s
tip and put Getting to Yes by Fisher, Ury and Patton, or Difficult
Conversations by Stone, Patton and Heen, on your Christmas present
list; I will.