GOOD MORNING FROM LONDON

MEDIATION  – #324

EPISODE #2 – ADVOCATES AT WAR

Episode 1 concluded;-

“Dispute Resolution has changed since the days when set piece confrontations were the norm. There is a reason and it lies in the improved and focused training of arbitrators and, in particular, of the Chair. Chairmen and Chairwomen are not now so naive or timid or cowed by the sometimes superior ways of the advocates.”

Episode 2 commences;-

Trouble in an Arbitration can be a long burning fuse or can come out of nowhere. The Chair needs to be prepared. His/Her concentration needs to be 100%. Never be lulled into a false sense of security by an atmosphere of calm and co-operation. Proceedings are in the main co-operative and not confrontational. Manners and civility are usually maintained. But the Chair can never assume that a discordant note will never arise. Hearings are a tussle. They are a fight – albeit often conducted with good manners but still a contest.

A misplaced word or a long sigh can be a prelude to an outbreak of hostilities – sometimes planned and intended and sometimes quite accidental. Either way, you the Chair, have to be alert, aware, with 100% concentration. You can never relax or lower your guard or move off centre. Your mind can never be allowed to wander. It does and you have to take a hold of yourself and return to total focus. You may have left home with instructions to send flowers to a distant relative or be very aware that one of your children is going to a big interview or be enjoying your football’s team big win at the weekend. Life is full of distractions and you would not be human if your mind did not wander – occasionally.

A Chair needs discipline, focus and commitment. You are a professional and you are being paid a good fee for your skills and abilities. Don’t let yourself down. You will – sometimes. It happens and your skill is to recover your mental composure without giving any impression that your mind has gone AWOL – Absence Without Leave.

Now to the task in hand. You sense that relations between the advocates are not the best. There is a little tension. Body language is very revealing so you do watch and observe and reflect. And you know that all is not well but when you come to act timing is everything. Intervene too quickly is “jumping the gun” and very much to be avoided because you will make matters worse. By the same token being slow to react is also an error because words will have been exchanged and the atmosphere will have dipped.

The focus is on you. Are you up to the task?

Here, you need instinct – awareness – and good choice. You pick up the vibes, listen to the words, look out for body language and the rustling of papers. As an advocate I knew things were going well when my opponent began to rustle his/her papers in an attempt to disrupt my focus. He/She trying to deflect the Tribunal away from the argument I was making. I would say nothing. Just slow down my presentation and, if necessary, come to a halt. It usually worked.

As a Chair your responsibility is different. You are there to ensure fair play with the minimum of disruption. If you sense a tactic is at work, allow it to go just a little too far and then step in with a kindly word. “We will pause to allow Mr/Ms X to put his/her papers in order”. Pleasant, aware, alert and effective. On with the show. A light touch is always preferred

But there are occasions when a more forthright approach is required. Firmness, clarity and most important of all – a sense of power. You are the Boss. You have to be in control. Sometimes a light touch works and the advocates get the message. But advocates can go too far and that is when you – the Chair – have to be clear and uncomplicated. Sometimes a reference to yellow and red cards can do the trick. Just letting the advocates know – with a touch of humour – who is in charge.

EPISODE 3. “WORDS THAT WORK AND WORDS THAT FAIL”