- Speaker #0
Humankind Bridging Dialogue, the podcast that gives a voice to those around the world who make a difference in the mediation field. I am Faiza Alec Dodive, lawyer at the Paris Bar and certified mediator. Each month, I break down practical aspects of this field with an expert. Far more than just a tool for negotiated justice, mediation is primarily a process of conflict transformation through the emergence of constructive dialogue in all the challenging landscapes of our lives, whether they are economic, social, environmental, or simply human. Humankind is a space for exchanging and understanding the mechanisms and teachings of mediation. with those who bring it to life on the ground. And for those listening who are still wondering about what mediation can do, here is my invitation. Be creative. Change your perspective. Explore. Be bold. Be brave. Be vulnerable. Define your intentions. Project the future. Bring change. be the change. Now, welcome to the table. In this episode of Humankind, I wanted to dive with my guest in some very practical dimensions about the mediation process, in particular when it comes to managing multicultural parties in dispute, and the importance of what we call the opening statement in mediation. To achieve this, I am honored to welcome Joe Tirado, who is a highly experienced dispute resolution practitioner, coming from the United Kingdom, but bringing a little bit of a Spanish vibe and U.S. perspective in his suitcase. Welcome to Humankind Podcast, Joe.
- Speaker #1
Thank you, Faiza. It's a pleasure to be here. Thank you for inviting me.
- Speaker #0
Joe, you're a lawyer in England and Wales and a certified mediator from various associations. You have very recently made a main change in your career path. Can you tell us more about it?
- Speaker #1
Well, I've spent the last 34 years as counsel with different firms, most recently with a Spanish law firm called Garrigues. The bottom line is I was very happy at that firm, but we have a mandatory retirement age, so it hits us all. But I had been thinking obviously at some stage transitioning over to becoming a full-time arbitrator and mediator. So that was obviously an incentive to think whether or I start now or perhaps a little later. And it seems a good opportunity now to move. Many of my contemporaries have already made that move over to full independent status and I'm lucky I've been quite busy, have a number of appointments already and it seemed like now was a good opportunity to really make that jump.
- Speaker #0
Well that's right, I think for those who don't necessarily know the legal environment, you're really moving from a structured law firm environment to working alone with different types of mandates. You have a number of different hats including lawyer, counsel, mediator, arbitrator, adjudicator, conciliator and expert determiner. That's a lot. of character, right? So it sounds like you're taking different postures, obviously, in all those different settings. So can you tell us a little bit more about your tendency of duplicity?
- Speaker #1
Let me say, just to clarify, I only have one head. Maybe lots of hats, but one head. Well, the reality is that I think over the years, you acquired that experience to see things from a holistic point of view. And I think all too often, it's very easy to get pigeonholed and just practice one particular type of law, one process, say litigation, and not see the wider picture. So the reality is there are many different ways of resolving a dispute. The traditional one, of course, is going to court, but we have seen the development of alternative dispute resolution, and by alternative generally, I think is understood to mean anything except court. The main method other than litigation is arbitration, where you have a determination. Somebody makes a decision, but there are a whole host of other variations that parties can explore, where you have somebody either making a decision or at the far end where you have the parties themselves reaching a negotiated settlement. So the simplest form is the parties themselves doing that, exactly that, in negotiating. Or you have effectively different levels of assisted negotiation, which in a way is what mediation is, where you have a third party neutral who is not deciding anything, but is there primarily to help the parties bridge the gulf that's between them. So knowing the terminology and being comfortable with the variations, I think, is important. Now, as counsel, I've been very fortunate that I've represented clients before all of these different types of dispute fora. And so there is that perspective, but it's also really helpful if you've actually sat as one of these individuals, because you see it from the other side of the table. And I think that can be practically a very useful addition as counsel to make you better counsel, but in terms of how you present your case.
- Speaker #0
So you're saying that all these tools form different approaches. to dispute resolution and they are maybe complementary or each of them are playing a different purpose.
- Speaker #1
There's a real subtlety to each of them and I think what hopefully makes a difference between a good counsel and a great counsel is somebody who can appreciate those differences and exploit them. There are different skills involved. There are a lot of the kind of skill set, the analysis that's required, the discipline in terms of reviewing documents and preparation is very similar perhaps for all of them. But in terms, your audience is different. In the States, they would have juries, whereas in the UK, we don't have those except for very exceptional matters such as defamation or in a crime scenario. But that's a completely different audience to when you have just no jury or your mediator is there. It's not somebody you're using to persuade in terms of your arguments, but you're using to bring on board to help you negotiate. the issues that need to be resolved by the parties and bring them together. And so you see them more as an extension of the team in the mediation. They're all different ways of resolving a dispute. But I think having an appreciation, certainly, of the differences is very helpful and adds value and hopefully, therefore, gets you closer to the result that your client wants, which ultimately is what you're representing. And people will have different strategic aims. and your aim is to... It may not be to resolve it, actually. There are times that there's a strategic reason somebody wants to stretch something out. But ultimately, I think what most parties want at least is to have their issue resolved as quickly and importantly, as cheaply as possible. When you hear that time and time again, no matter how big they are, and sometimes the bigger ones they are, the more they're driven by that bottom line and want to get things resolved. And equally, you'll find perhaps if you're involved with governments, they will go on and on and on, notwithstanding the fact that they have limited public resources. But the reality of it is, because they are backed by the taxpayer at the end of the day, they perhaps pursue cases that they shouldn't be pursuing, or certainly cases for much longer than they should be.
- Speaker #0
So you've been involved in law firms in the US, in Spain, in the UK. You were briefly touching on this earlier. How did this multi-jurisdictional perspective help you in terms of Using those tools and in particular the mediation or transactional alternative dispute resolution approach?
- Speaker #1
It's a great question. I think appreciating the multicultural element helps you realize there isn't just one way of doing things. And I've been fortunate, just to clarify, I'm an English solicitor advocate, so I'm only qualified to practice in the UK. I have, as you rightly pointed out, worked with two US law firms. and most recently Spanish law firms. So seeing the kind of different cultural perspectives, because even though the US you may not have the same language difference with the UK, even within the US, the south of the states is very different. Texas, which is where I was a partner with a firm down there, is very different from the north, northwest in Chicago and of course east-west states. So there are always different perspectives, and I think you just need to respect the fact that there are different perspectives of how to approach things and be able to adapt to that. But I've always wanted a career that was truly international. Litigation tends to be, by definition, you're focused in your jurisdiction, even though you may have international parties coming into your jurisdiction. But the beauty of particularly arbitration, but mediation as well, is that it's truly international. And I think as you have experience of dealing with different clients from different parts of the world, and as I say, hopefully understand the sensitivity, then you can come up with solutions that may well fit the particular model that wouldn't fit a normal scenario that one might face in one's own jurisdiction. So I think I consider myself very fortunate to have seen things from many different angles. But as I say, I think the conclusion I would say from all of that is there is more than one way of doing things.
- Speaker #0
And you're a Spanish speaker.
- Speaker #1
I am.
- Speaker #0
Maybe with Spanish origin.
- Speaker #1
Yes, my parents are Spanish and I'm a dual national.
- Speaker #0
So you're very connected also to the Latin American world. So I guess that also helps navigate the cross-cultural approach.
- Speaker #1
Well, yes, I think language certainly helps. Inevitably, we all face barriers when you're meeting people you've not met before. In a dispute situation, when there's a lot of tension as well, anything that can help bridge those gaps. that make people feel more comfortable, where you can have clearer communication, even if they're on the other side, in terms of their client's perspective, helps. And so I think that is a huge advantage. While English has become obviously the predominant international language, it's not the only one. And I think seeing hybrid arbitration, certainly in mediations, I've seen a lot now help having another language. But it's not just the language, it's having that cultural sensitivity as well. And again, you can be caught out by that. To illustrate, I remember being involved in one mediation a few years back. At that time, it was one of the top three mediators in the UK. I was genuinely really looking forward to the experience because I knew them. I was representing, as it happened, a US client who had agreed to mediate in England. So they were extremely familiar with the mediation process in the US. Very sophisticated, very large, but for some reason... They began to panic as the day of mediation came along, and they felt that they needed an English lawyer with them with an English accent, just to kind of balance it out and make them feel a little bit more comfortable. But they were really genuinely nervous about coming to England. I said, not to worry, we have one of the best mediators in town coming along, really excited. This is all going to be good. No need to worry at all. It's all going to be even-handed. And as we came out, it was a he. In those days, it was generally all he's. And he was not very sociable in terms of, it was almost, the message was, you're very lucky to have me. You know, normally it's, don't get out of bed for less than whatever amount, I'm paraphrasing, but that was the attitude. And the client was thinking, this is a little bit strange. And then we get into the main session. And one of the first things he did was make some kind of cultural joke about where my client happened to be from Texas. And so he thought that it was funny to kick off with a joke that went down. It wasn't very funny anyway. But it was aimed at my client, not the other side. So, of course, it immediately kind of put my client even more nervous. And it's a lesson about being careful about using humor, which can be an incredibly powerful and useful tool. But understanding the cultural sensitivity, and I think he got caught out because they were American, you know, English-American, it's not that different, is it? And, of course, it was. And, unfortunately... I like a story with a happy ending. They did settle, but nothing to do with the mediator in that particular case. The parties themselves were able to.
- Speaker #0
Well, I think we absolutely have to get back on the use of humor in the mediation. But before that, I really want to understand how your mediation path kind of started since you have those different. expertise and you've chosen mediation. Yes. And you do advocate for mediation today. I do. In an international environment, how did the tool become for you so obvious that you're proposing it in your cases?
- Speaker #1
Number one, I think we have a professional duty, certainly in the UK, to advise our clients about more opportunities. In the case of mediation specifically, a tool we have available to us to help us resolve the dispute. It seems to be a bit of a no-brainer. I can't understand why it's not used wider. And we're talking in the beginning of the 90s when I was getting involved with this. It was not taught at university. It wasn't taught at law school. And I found it actually relatively early in my career as a junior associate. And I was really taken aback by how powerful it was. In fact, that case didn't settle, if I remember rightly. But it was still very illuminating to me. So that was the introduction, if you like, and I was very keen to learn more about it. And at that stage, the partner was very nice, but very politely said, you need a few more gray hairs. And that raises another issue about what your mediator should look like. It just seemed to me obvious that if this is something that can help move things along to help resolve the issue for the client, that is something I'm obliged to be looking at and should be looking at. And it always staggered me. that was not the case and continues to a large extent. I should just recognise in the 25 years I've been specialised in mediation there has been significant movement but there is still resistance and I find that quite surprising if not outrageous in some cases.
- Speaker #0
There's one comment that we hear from mediators is to realize that there's very little training. Law schools do not necessarily teach mediation or the skills of negotiation. So this is very much still, despite our work in promoting the tools, left aside of the university.
- Speaker #1
Yes, but you know what? I think we're all guilty, if I'm honest. Counsel, clients. I have a real, I'm going to say something controversial at the moment, about clients, but everybody, the teaching, what you do see is there are more courses, there are components in them, but I'm not sure how much they are promoted internally, if you like, there's a smaller element. So I think the knowledge level is definitely higher, but there's definitely also a willful desire to ignore that and not use that knowledge. Now, you can question as to why that might be the case. I'll just get back to my rude comment about clients. I always say they're schizophrenic, I mean, because almost every client will say, well, this is outrageous, it's too expensive, it takes too long. And then if you suggest an alternative way of doing it that may be cheaper, quicker, you have to be really careful, A, if you say it at all, and B, when you say it, because you need to have that relationship with the client in the first place that they're not then going to think. Maybe they picked the wrong counsel because you don't believe in my case, and that clearly isn't the case. You may have a wonderful case in terms of the merits, but you're still always the lottery of whether you're going to win, even though you think you've got the best case in the world. But even if you do get your award or judgment, you've got to enforce it. Having a nice piece of paper and having followed an almost ideal process is one thing, and maybe intellectually satisfying. In reality, most people say that there are exceptions to every rule. want is to get that matter resolved. It's not always money, it's mainly money, but there may be other ways. And I think that's what's wonderful about something like mediation that has a real advantage over any of the other kind of adjudicative processes, is that you can be really creative. Subjects, of course, stay within the law and not going completely crazy. And you can avoid a lot of issues actually that are coming down, some that may be already in the wings that haven't really fully matured, and somehow bring those into the main dispute. And indeed, if you're really creative, you may be avoiding disputes completely going forward. So I think it's an incredibly powerful tool. My issue with mediation, if I may pursue the line a little bit, is that I think it's got a perception issue. It's also a massively broad church. And to say mediation in the same breath as family mediation, employment mediation, world peace mediation, gets confused. My world is commercial. And the perception is that, well, frankly, if you have a quote-unquote serious case, something complex, a lot of money, mediation isn't the way to go. It's maybe for the smaller type things, the things that aren't so serious. and I would really strongly push back in that, both in commercial and increasingly. What is yet to be truly explored, understood is in the investor state space where I'm doing increasingly more work. And I think mediation has a wonderful flexibility to allow parties to be creative. So I think it's incredibly powerful. And I think rather than feeling almost a little bit embarrassed or defensive about mediation. And I think there's a case to be much more assertive and much more proactive about the benefits of mediation because I think there is all too often this perception issue.
- Speaker #0
Don't you think that there's also a question about how to use or when to use mediation? How does it insert into a broader dispute resolution strategy? And I think this is something that we need to work around with the parties, with the counsel and say Even if as mediator we are prepared to take the case, it may just be on one aspect of the issue and the rest needs to settle in court. Or the enforcement that you were talking about, this is also part of the threat.
- Speaker #1
Yeah, and I think you're absolutely right. Part of the problem is sometimes it's been oversold as a panacea for everything, which it isn't. I mean, there are some things that just are not appropriate for mediation. And I think in the enthusiasm to sell mediation, sometimes people seem radical. evangelical even, which is admirable on one level but actually can be quite off-putting and give the wrong message in a different context. So I think context is important. The great thing about mediation is not you open the can and you've got to use it now, otherwise it's going to go... it's always there, it's around you. Timing is important. You may have an opportunity, because it's already in your claws to try it sooner. Generally, I think there is a perception that sometimes parties need a little bit of pain. They go through the process of an arbitration, the frustration, despite all the beginning being very upbeat. People get worn down a bit and think there's got to be a better way of doing this. And so they might explore something else. And so you can perhaps introduce mediation at that point. But I've always been an advocate that I don't think there's any such thing as a failed mediation, if nothing else, at the bare minimum. Parties understand their own case better. As an informality to the process, there is a process, so there's an element of formality and preparation was best required. And I've had personal experience of this where things will come out in a mediation that the client has not said to me, notwithstanding all the hours I've been with them preparing beforehand, because they didn't think it was relevant at the time. But somehow or other, the formality of the process made them refresh their memories, see things are slightly differently and things will come out. So that's fantastically powerful for understanding, as I say, one's own case better. But invariably, it's a listening exercise or a hearing exercise. You want to hear what the other side have to say to understand better their case, so the strengths and weaknesses of their case. But invariably, if you can start knocking the issues off one at a time, then that should have both a time and cost benefit further down the line. So yes, I think it's a tool that's available to us. And it's there right from the beginning. to the very end. And even after, as bizarre as it might sound, but I have heard, after you've had an award issued, and sometimes I've heard of one interesting one where the award was issued and kept in the envelope to really put pressure on the parties and say, do you want to open the envelope to see whether you've won or lost, or do you want to have another go at mediation? And in that particular case, the parties decided they would have yet another go, and they were able to settle. And then the question was, do we open the envelope anyway? But they never did. But I think there's scope there for clients to be a little bit more, rather than abdicating your responsibility all too often. I think in-house counsel probably do do that and say, well, pass it off to the external lawyers and then they kind of leave it and then complain, why is it taking so long and cost so much?
- Speaker #0
I think you're right. It's about how much the client is paying interest to resolving the issue and staying involved in the claim itself and and making sure that they I engaged in the resolution and whenever the client trusts the lawyer to handle the case on its behalf, then there's a disconnect here and you need a lawyer who will trust a mediator to say, that's the type of skills that we need right now to progress. So there's a lot of trust in engaging an external mediator. Very often we see successful mediators having built the right network with lawyers.
- Speaker #1
Yeah, well, I mean, of course, in real estate, they have the expression. It's all about location, location, location. I always say mediation. It's all about the mediator, mediator, mediator. And having the right mediator for the right case with the right parties is crucial. Absolutely crucial, I think. I mean, there's no guarantee in anything. There's no one mediator on this planet, I don't think. I mean, we know some very good ones that will always. reach a settlement. And I'm not sure that's always the best outcome in any event. So one has to recognize there's only so far you can push parties.
- Speaker #0
I think you were talking about what is perceived as failed mediation. You're mentioning the outcome. So what is the expected outcome? Is the settlement by all means, or is this likely to bring something else that was not expected initially? So the creativity and the tool allow for this to emerge in an unexpected way.
- Speaker #1
No, absolutely. And I think that's the fundamental superpower of mediation. It is that, because I think it is, you're going to a dispute and looking to resolve a dispute, and you're really focused on that dispute. But then somehow or other, when you've anticipated other ones and prevented others from even beginning, that's a pretty powerful outcome. And one of the interesting things, even the most sophisticated parties who think they've been around the block and they've been there, done that, they think they know it all, maybe. And then they perhaps convince that it's never going to settle. You get somebody who's utterly cynical about the whole process, saying, well, I'll go through this through the motions, and nobody can accuse me of not trying, although they're not really trying. And then they get, once they're in, sucked into the process, it's amazing to see that metamorphosis of them and how they change and how they engage. They hear something, and they can't bite their lips anymore. They want to engage. And once you have that discussion going, and sometimes it can be... extremely heated. I think that's another issue with mediation. We talk about consensual, amicable, and again, all of which are great virtues, and great if you can do that. I have to say in the commercial disputes I see, they're often a huge tension. There's a lot of problems being before, there's a lot of emotional problems. They're actually very hostile. So consensual, amicable, for me, doesn't work. I think it's all about collaboration and constructive dialogue. You can still have very opposing approaches. Again, it's a subtle difference, and maybe I'm making more of it than I should do, but I do think that's one of the barriers to acceptance. If I may, just coming back to the clients, I think that's, if not the key, it's got to be one of the top things that will really change. the dial on acceptance of mediation because it will force counsel, those that don't know already what the powers are, other forms of dispute resolution, but particularly mediation, to learn. If the client themselves are saying, why aren't you talking to me about these other forms? Or those that do know very well because they're an sophisticated, smart bunch, but are not employing it, to think twice because they don't want to look like they're falling behind the curve than somebody else, because there are a lot of competitors who are more than happy to point that out. And it's all, at the end of the day, I think it's in counsel's self-interest, because it's all about building confidence and trust with your client, particularly a new one. And I think if you're able to present a possibility of resolving a dispute that hadn't been in the client's contemplation, that results in a much quicker, cheaper, and better result than the actual dispute. I mean, what's there not to like, frankly?
- Speaker #0
Exactly. That has to be seen as an opportunity. You were touching earlier about the choice of the mediator. You also touched about the gender question. You said that earlier, you may not have seen such a great level of diversity in the mediation world. Has this changed today?
- Speaker #1
It is, but it's got a long way to go. I mean, certainly, again, there was always those kind of stereotypical view that women were good for family law, type disputes for employment, and maybe dip. the real corporate world was more for the male. You're smiling as I'm saying it, because it sounds ridiculous as I say it like that. I mean, inevitably, I am very much for diversity in the wider sense. So it's not just a gender thing. I think ethnicity is important because I think you get a better view of things. It's rare for one person who's able to kind of cover all the bases. I'm a great fan of co-mediation when it's... appropriate. I think there are a lot of cases when it is appropriate. I mean, of course, inevitably, there's an additional cost. It's an extra person. But I think certainly in the invested state space, it's a no-brainer because it's so complex and so many parties involved. But I think co-mediation works really well. I remember being utterly enlightened when I was first getting my accreditation. It was a financial... A dispute about some, I think it was provision of water services, but it was highly accounting-based, so the principal mediator was an accountant. I always thought it was a really smart thing to do that the accounting questions, she basically fed me the lines, and there were legal issues that I fed her the lines. Parties, I'm pleased to say, did reach a resolution, but I think that, again, it's being creative.
- Speaker #0
I agree with you, it's a co-mediation, or working as a team of negotiators with different sets of skills that will be complementary. and really provide a different angle, a model that as a mediator we can dream of and maybe is going to emerge, although it's been rather a solo activity, it might change.
- Speaker #1
It is, but I think one point, you used the word, I think, team, was the not forgetting that council themselves, it may seem, I mean, you're obviously neutral, but there is an element there, it's all about working together. I always say they can be your best friends or your worst enemy and often be both in the same scenario. You start off together and sometimes, even though they've said a particular point to their client a hundred times, hearing it come from a third party can really help. And suddenly the client will, oh, OK. You're working together, I think, to reach the gap between the parties to get that resolution. But it is a lonely existence. Also, I think, again, unless you do it, people don't appreciate how physically and psychologically exhausting it is, because you are often the only one actively doing something all of the time. Everybody should be doing something, even if you're not in the same room with them. And that's tough. And that's why I think co-mediation really helps in terms of just having the psychological support. But the physical aspect and the practicality, it may well be that you can divide. the matters that need to be covered between you in a way that makes sense to save time.
- Speaker #0
So talking again on something that you've mentioned, the state investors dispute, it seems to be an area that you have been willing to develop. You've been involved in some of the very prestigious Exceed and World Bank panels. Is this something that is different from your usual commercial mediation work?
- Speaker #1
It is, but it's kind of mediation on steroids, I suppose, in the sense that the basic proponent is the same. What I think is interesting exit as an organization was originally conceived when they have these investment disputes between states to be resolved by, they call it conciliation, which is a form of mediation. But that was originally back in 1968, so it's nearly 60 years ago. That was how they wanted parties to resolve their disputes between them. Arbitration was a bit of an afterthought to have it there. And what actually did happen, first 20 years, nothing happened. The conciliation or arbitration. Then there were a few conciliations and it's particularly African states were actually the biggest proponents, but there have only been 14 conciliations since 1968. I did the last two, one as a commissioner, but I mean it puts it in context. There's whole mechanisms that's not really being used. In the meantime, there has been an explosion of arbitration since the end of the 90s, particularly the beginning of the 2000s. But then when you started to see around about the 2010, the backlash, partly driven by the NGOs around the world and slightly picking up on the anti-capitalism generally, but I think a sense that this was a bit of a rigged secret court. And so there's a backlash to the extent that you saw 100,000 people in Germany protesting against them. I mean, the whole narrative was anti-capitalism. the investor state mechanism, it's still there. There are proposals to have a kind of standalone court, and that's still up there for debate. And things have changed a little bit. But inevitably, I think what parties are seeing is that there are huge awards. There are often tens, if not hundreds of millions, and often billions, doing awards against states. The reality is, I think if people look at the statistics, is that the states generally win more than they lose. So the perception that it's all one-way traffic is not right. but they cost millions. Roundabout, I think the last statistics I saw, the average is something between $13 and $15 million. It takes twice as long as a commercial arbitration, and they often take long enough anyway. So again, five years is not unusual for an investment case to be perceived. And then on top of all of that, there's a real issue now, increasingly, of states not complying with the awards. So when you take that into consideration, the cost, the time, and then you may not be able to enforce, there's got to be a better way of doing things. I would say, arguably, yes, there is. I think you need to engage in whatever it is from a position of strength. But investor-state mediation really has an opportunity, I think, to pick up that slack. Most people, in my experience, take on a state very reluctantly. The optics of it doesn't look good. If you want to work in that country again, chances are not very likely. But I think there's real incentive for everybody, the investors, to invest and for the country to attract foreign direct investment, for things to be resolved in a much better way that can benefit. It may not be just financial. It may be for other benefits in terms of employment opportunities, social services that can be provided as a result of these projects that may form part of the settlement solution. And again, the other thing about an investor stake case, imagine if you're building a pipeline through sensitive area, the amount of stakeholders that may be involved, different communities, somehow to pull them in. So you may have resolved the issue with the investor, but actually the community that's been impacted may need some kind of redress. So I think if you're able to proactively go out, identify them, it's not looking for claims because these claims are going to be coming your way anyway, but you're able to then kind of control it in a way, resolve it in a way. To me, again, it seems to be self-evident in terms of the benefits. I'm not saying it's easy, but these are issues that are surmountable. And there has been huge work by organizations such as ICSID, UNSATRAL, the Energy Charter Treaty. A few are looking to that to have rules. The ICSID introduced new rules in 2022, focusing on mediation. It's still relatively early days, but take-up is still very low. And in fact, I think knowledge is still quite low. there's an opportunity, I think, for us to spread the word more.
- Speaker #0
I really like how you talk about building better outcomes through mediation in this context of complex investor states, especially in the current moment of promoting environmental protection, climate change, future generations, human rights issues that have to come into the dialogue and be promoted by stakeholders and parties and states in a constructive way, in a way that allows for those issues to rise with some agreement that can be enforced in a pragmatic and practical way. I really agree with what you say in terms of the need to see that development in constructive dialogue.
- Speaker #1
If I may pick up one other word that you buttoned, you've just pressed, it's the enforcement issue. As opposed to arbitration or litigation where you have a decision imposed on you, a negotiated settlement tends to be complied with. An important obstacle is being removed in the sense that we have the Singapore Convention about enforcement to make it even easier, but in practice. Most settlement agreements are complied with. And in some ways, it makes perfect sense because this is the creature of the parties themselves. It's not because it's been imposed on them by a court or a tribunal.
- Speaker #0
So it also gives me an idea that we will do a masterclass on investment aggregation in a separate Humankind podcast. I'm sure we should totally focus and grow. knowledge and communication around the tools and how they work and make sure that this is well communicated and understood. In this podcast, we want to hear some mediator story and I think you've shared a number of tips and perspective. We also want to hear about humor and mediation because that's an important thing that you've wrote up, but you had to do a little bit of homework. You've been thinking about a particular story in your career that had an impact either on the mediator you became. Or the practice of mediation itself? So what is your story, Joe?
- Speaker #1
We've touched on a number of these already. What I think is important to emphasize is that the mediation belongs to the party. You cannot force them. That's where consensus truly exists. They need to consent to be there. But I'm very keen to point out to parties that the person who's in charge of the process is the mediator. And you have to have that kind of confidence. Some may call it arrogance, but I think certainly confidence to keep in control, because you can get some pretty hostile pushback. It happened to me just a couple of weeks ago, I was in a mediation. One of the very few good things that came from COVID was the kind of, I think, rediscovery of mediation. It was forced to go online, but mediation suddenly seemed to be a little bit more in fashion again. It's only in the UK. And it's interesting because those that are now discovering it for the first time or rediscovering it are raising questions and issues that were raised 10 years ago. And so like, here we go again. But in a way, while I might groan at it, it makes me smile, but it proves positive that at least people are engaging in the process. And so you will find people being really opinionated about. Most recently was the point about having an opening caucus with everybody together. I remember this. 10, 15 years ago, being the subject of, you know, is that a good thing? You've got a sophisticated party. Who needs this? We all know each other. I can honestly say, in all the ones I've been involved with, I have never seen one where I felt I didn't need that. And certainly as mediator, I think it's a great opportunity to break the ice and set the ground rules down, because you really don't know what each side has said to their parties. And that takes 10 minutes. And then let's see where we go. And as far as my general philosophy is, there's no magic solution to this. It's parties engaging, we want them to engage constructively. There comes a point. And so you try and prep them beforehand to say, don't just repeat what you've said in your pleadings. Really, what are you looking for, truly? And we see sometimes that might be very short, or it might go on for a while. But I was really frustrated because having said so, prepare for the mediation, there was one partner on one side who was never engaged in any of the calls. He turned up literally 10 minutes to go, no apology or anything to everybody waiting for this guy. So I went in as a matter of courtesy, saying, well, I'm sorry we've not spoken before, but I've spoken to your colleague, this is what we're doing. And he immediately went in my face and said, why are we doing this call, Kirsten? I said, why? As I explained to your colleague a couple of weeks ago, and the other side, this is how we're going. And he was really questioning the, I think it's a waste of time, I don't know what's the point. I was like, whoa, hang on a minute. So the whole point of all of that was, ultimately, I had to say, look, this is what we're doing. I think it's a good idea. You have to trust me. I've only just met you, but I think it's a good idea we do this. But I can't force you. You don't want to come in? Fine. I'll just say you turned up. You don't want to come. Notwithstanding, that was what we agreed. The point of the story was, we went in, we did the opening, the usual thing. It was actually quite a long opening session. And he came out and his client was so relieved because he was very hesitant about going in. And he basically said, I thought he was going to punch me. Because when we went in the room, the guy at the other side moved towards him, but he was putting his hands out in friendship to shake hands. And it turned out, the opposite of all of this was, they had been very good business partners, very close. COVID, unfortunately, they were both seriously ill. They lost contact and I think it was a sense that... The other didn't really care about what happened to the other one. But there was a huge amount of personal issues that needed to be resolved that this lawyer hadn't spent the time and issue to understand from his own client. We came back out. It obviously managed to release a lot of tension. And the first thing the lawyer said, oh, that went quite well, didn't it? And my point was, yes, you've appointed me for a reason. And you need to have confidence that you're in the process. And some think a lot of this, you just go by your gut. You cut something short, you let it go, and being in control of that process is very important. And the other point that was alluding to the cultural element was the story of two Latin American parties, strangers from the same countries, but they had a very contentious dispute that they had agreed to mediate. And it was going to arbitration in the States, and they both had armies of lawyers on either side. They had spent millions on this case. It It was coming up for arbitration in a couple of months. I was asked to come in. Everything's in English. It's English law even. And they'd already had two mediations that had failed, and they were still something like 35 million apart. So a huge gap still between them. And they sent me this enormous file to read at the weekend before. And I thought, this is hopeless. And it was scheduled for two days. And again, I made it very clear at the beginning, it said, I reserve the right to speak to whoever I want to, whether that's the client, the lawyers, whoever I needed to, that that's my prerogative, if you like. And they would say yes. Anyway, after day one, we get down to 5 million. Don't ask me how, but we got down to 5. Suddenly, the pressure was off me. And it was really on them, because how on earth were they going to go back to their respective bases and explain that they got so close and not able? One party threatened not to come back the next day, and we just didn't know. They didn't walk out, but it wasn't clear they were coming back in. We turned up at the appointed time, the other side turned up, so that's a good sign. So we get down and we sliced down to about 3 million, but it was hard work. And it just got to the point where I said, I'd like to speak to the principals. And everything had been done in English until that point. The principals were socialized together. They were in the same industry, so they went to the same clubs and knew the same people. But the lawyers were super resistant. I mean, they were attacking their clients to say, kind of like, don't go for this. They didn't want to let go of them. And it kind of almost Questioned me as well and I said, no, no, we'll give it a go. We went in. I really didn't need to say anything. We switched to Spanish. By this stage, it'd all gone out. Half an hour later, we all came out. They're shaking hands. The deal's done. But again, it was a really... dangerous moment because I think both sets of lawyers is different when you've got at least one that might say we're aggressively resisting and putting a lot of pressure to not accept. It was a real interesting insight I think and knowing when to call that if I did it too early day one it probably would have resulted in nothing but it's just being alive and I think being prepared to be brave. There's always an element of giving up something. So at the end of the day, if you want to blame the mediator then fine, but they then thank you later when they realize they have been spared the cost. the expense, the emotional toil. And I think that's one of the interesting things in the commercial context that is often underestimated is the emotional toil. At the end of the day, they are human beings.
- Speaker #0
So Joe, you're saying that, no, it's not just about money. Well, thank you for sharing those stories and illustrate the level of tension. That can happen in a mediation, especially in commercial, but not only commercial, actually. There's a number of different fields for mediation where it's hard. Like, you know, mediation is not just a softy thing where parties will get together and be friends at the end of the day. It's really experiencing the difficult conversation, building trust with all the parties, including lawyers, and, you know, how this works around better outcomes. in the interest of the client. But where this interest lies, I think in your story we can see that sometimes it's hard to see the same thing. So thank you so much. That's really interesting to hear about your experience. As we're kind of nicely coming to the end of our episode, we have a tradition here to wrap up. And I would like you to think about a couple of last questions as a closing ritual. So, the first question is one essential mediator skill. I think you've answered that, but we'll see if you say the same.
- Speaker #1
Well, clearly listening with all your senses in a way, being sensitive, and again, in a pragmatic, practical way, not just in the emotional maturity, I think is also emotional intelligence, which men often get accused of not really having as much of. is really important. And so I think as well as the technical ability and the practical aspect, it's not forgetting that. So that's quite a few things. It's very hard and clearly having staying power, being prepared to endure, it can be quite lonely. But it's also a fantastically privileged position. And I pinch myself. There are times when I think, why have I accept this? Because I think to be that proverbial fly on the wall, which is counsel, you're all you may speculate to the cows come home as to what's going on in another room. you never know, but you are actually in that privileged position. And especially if you win trust, you hear things that you would never hear as an arbitrator, as a counsel. And so I think that it's truly a privilege and an honor, I think, when people are appointed because it has a huge responsibility. Everybody I know that have a real passion for mediation because they want to help the parties at the end of the day. What was next, Dee?
- Speaker #0
Dee Dixie A movie, a book, or an event? Dee Dixie
- Speaker #1
Well, in terms of mediation, I can put it down to that first experience that I mentioned before. It was that hands-on moment where you're thinking, wow, what is this? How do I not know any of this? And of course, the reality of mediation is we do it all the time. We do it at home. We do it with our friends, with our family. Again, it's kind of there in front of our faces. I mean, it makes me slightly embarrassed because I felt a little stupid not realizing that. But it surprised I wasn't aware of it. And when I saw the power in the It was quite a complicated insurance dispute, I remember. But it was the ability to bring in all these other component parts. That's what really inspired me. And ultimately, you want to make a difference and you want to... I like the title dispute. It's to resolve the dispute. I mean, I enjoy, don't get me wrong, I enjoy the intellectual cut and thrust of a trial or a hearing. Inevitable, but that's about me. At the end of the day, it's about parties. They want you to get them out of the hole they're in, even if they're the ones that are with the upper hand or the merits all on their side. They just want this to go away. Invariably, as I say, not always. So that's what kind of motivates me to do it and get up and do it and accept it. And as I say, after you feel a bit bruised and having sat in a mediation all day thinking, these parties are never going to... It's a real emotional rollercoaster. And I'm sure you would have seen Those ones you look at the papers beforehand and think, well, this is where it's going to go, and it goes nowhere near what you thought it was going to happen.
- Speaker #0
Yeah, that's very true. So a book in particular that you would recommend to a mediator?
- Speaker #1
Ooh, comes from mediation. Well, I thought the SIDA handbook is my little Bible.
- Speaker #0
SIDA being the Center for Effective Dispute Resolution, and we very much enjoy. the CEDAW community. So, you know, a big hello to them all for preparing such a good book to understand the mediation process in the UK and internationally. And lastly, your advice for a happy life in mediation?
- Speaker #1
Oh, that I think that's hard to get. For me personally, it's family. And having a family can be crazy. It's stressful. But it's ultimately, they keep you sane. I think, and you come back and keep your feet on the ground. I think we all can get a carry away with our own marketing and believe things that we are. And it's nice just to come back and be.
- Speaker #0
Thank you so much, Joel, for your participation to this Humankind podcast. It's been a real pleasure to... navigate and travel the world with you and dive into your experiences of multicultural mediation and gaining trust. So a lot of good tips to take on board, right, in our mediation practice.
- Speaker #1
Thank you very much. I really enjoyed it.
- Speaker #0
This episode of Humankind Bridging Dialogue is over. If you enjoyed this podcast, don't forget to rate it or share it with your social media. If you'd like to continue the conversation. find me on LinkedIn page, Faisa Alec d'Olivier. And I would like to thank Espace F360 Independent Library in Paris for welcoming us today for this podcast.
