MEDIATION – ANGER MANAGEMENT – EPISODE 3

by Graham Perry | Jul 29, 2022

MEDIATION #267

ANGER MANAGEMENT EPISODE 3 – “BE PREPARED” AS TOM LEHRER ALWAYS ADVISED”

The difficulty with a mediation is that you can only prepare so far. You see papers; you may see position statements; you begin to piece together items of information about the parties; you have a feel for the position adopted by lawyers – (not always involved) and you form some preliminary observations – not judgments, that is far too early but a picture begins to emerge.

And then you meet the parties – flesh on the bones at last. Actual people whose appearance and behaviour supplements significantly the initial thoughts you have had based upon the papers. You ask questions, you probe here and there, you make notes of points to return to and you listen and watch intently.

Body language matters

It is important to watch. Body language does matter – it is part and parcel of the whole picture. And you do not just watch the speaker who happens to hold the floor, you let your gaze wander to catch the reactions of other participants. A raised eyebrow, a shrug of the shoulders, a turning away in frustration – all go toward the whole picture.

Whilst you are observing, you are also thinking – maybe making notes, maybe committing to memory – but always alert. Remember the parties are thinking of Positions – you are thinking of Solutions. You are never working harder than when you appear to be quietly listening. Remember Joan Hickson’s Miss Marple – so beautifully acted and with the emphasis always on her observation rather than on her words.

Mediation is a most exciting intellectual challenge. Getting your brain into gear and identify the tension points and the possible explosions. Your skill is in getting to such points before the parties and keeping control of the process by having your own agenda.

A BREAK NOW UNTIL MONDAY 8 AUGUST WHEN I WILL PICK UP MORE ON MEDIATION AND ANGER. SPECIFIC EXAMPLES. HAVE A GOOD BREAK YOURSELVES AND THANKS FOR READING – GRAHAM PERRY

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Episode

Graham Perry On Dispute Resolution

This website serves a number of purposes.

First, it enables me to bring my skills and experience to a wider audience. I remain active as an arbitrator, a mediator, a party advacate and this website tells you about me.

Second, it fulfils a long-held desire to promote a forum for discussion of dispute resolution issues. I have for 20 years been the Chair of the Arbitration Lunch Club together with the Hon Secretary, David Barnett. Pre-Covid we would meet three times a year for a Lunch sponsored by a City of London Law Firm and at the Lunches we would hold a discussion of two topical dispute resolution issues sometimes with the participation of Judges Woolf, Rix, Coleman and Sumption. Covid has triggered the Club to go Zoom-wide with participants drawn from around the world.

Third, there is a current need for a lively inter-active website that, on a daily basis, enables dispute resolvers from around the world to participate in discussion, debate, and disagreement on issues affecting the conduct and development of arbitration and mediation. Contributions can be academic as well as practical; studious as well as flippant; argumentative as well as collegiate.

Why not read my articles on dispute resolution.?

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Goals

My goal is to make the website lively and encouraging to arbitrators and mediators; to put restraint and self-consciousness to one side and play their part in making dispute resolution lively, informative and progressive. We are always moving forward. Elsewhere on this site, you will find a page which tells you how to become involved.

SOMETHING UNUSUAL

Here’s an interesting situation.

You are a party-appointed arbitrator in a Tribunal of 3. The parties are buying and selling soya beans. They have a falling out over the terms of a Trade Agreement.

Sellers sues Buyer. The dispute is commercial and relates to the minimum quantities in monthly shipments over a 12 month period. A normal commercial dispute.

But then fireworks and Buyers send strongly worded letters to public bodies alleging that Sellers have committed fraud. Sellers argue that they have been libelled and add a claim for damages for libel to the claim about minimum quantities.

Does the Tribunal have to address the libel claim? Two arguments;-

1. The arbitrators are commercial people appointed for their commercial knowledge. They know nothing about libel. They refuse to adjudge the libel claim.

2. They have to handle the libel claim. It is a dispute. The parties want the arbitrators to decide the claim. The arbitrators have no choice. Deal with it.

This issue went to the courts and the Commercial Court made a judgment. But let me throw this open for comment. How do you think the arbitrators should act. Let me hear from you and then I will let you know what the Court said.

Graham Perry.

A Family Mediation

You are a family mediator. You are approached jointly by a husband and wife for assistance in a matrimonial break up. There are two children of the marriage – a boy aged 12 and a girl aged 14. They are both represented by separate solicitors.

The mediation proceeds. A mediation agreement is signed. Letters are exchanged. Meetings take place. You become aware that there are personal issues between the parents concerning their relationship. They do not concern you as such because the divorce is proceeding and these personal issues do not impinge upon the issues in dispute which are to do with financial arrangements, holiday arrangements and involvement with schools. In due course, these matters are agreed and recorded in the Final Agreement which is signed by the husband, the wife and yourself. Your fee is paid.

Three years later your wife has passed away through illness and you are alone without children. In a social setting, you happen to meet up with the wife and a relationship commences. Out of the blue, you receive a letter from the former husband’s solicitors alleging non-disclosure by you of the relationship which, on their information, was current at the time of the mediation. Further, the letter refers to a lack of impartiality on your part and material non-disclosure of the relationship and indicates a claim for damages will follow.

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About Me

Graham Perry qualified as a solicitor in 1973 after graduating from Churchill College, Cambridge where he studied History and Economics. He practised for nine years and then made a major career change to become Managing Director, of London Export, a UK company formed in 1953 to concentrate on trade and business with the Peoples’ Republic of China. Since 1990 Graham has been an international dispute resolver of commercial problems resolving commercial disputes.

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Experienced Dispute Resolver

Commenced my career as a dispute resolver combining my legal skills and commercial experience. I am an active arbitrator and trade representative in London with the Grain and Feed Trade Association (GAFTA), the Federation of Oils, Seeds and Fats (FOSFA), the London Metal Exchange (LME) and, occasionally, with the Sugar Association. I have a growing practice in shipping disputes and sit on the arbitration committee of the LME and FOSFA. I am a frequent lecturer and writer on commodity arbitration and mediation, giving lectures in China, India, Ivory Coast, Bhutan and the United Kingdom. I am an accredited CEDR mediator.