May
11

Addressing The Houses of Oireachtas, Dublin

Categories:

By Gregory Hunt, Director of CEDR Ireland and CEDR Disputes Group

On 9th May I had the real honour of representing CEDR in Ireland in front of The Joint Committee on Justice, Defence and Equality at The Houses of Oireachtas in Dublin, on the subject of the proposed Mediation Bill.  With no idea of what was to come, I was, and this is not usually the case, a little nervous (to say the least).

After lunch at Cafe En Seine on nearby Dawson Street, I arrived at Leinster House with my colleague, Nicola White, CEDR Ireland’s Practice Manager.  With time to spare, we were lucky enough to bump in to a few friendly faces from the mediation community which helped settled the nerves – but lead to more coffee – making the caffeine levels dangerously high by kick off time!

When we were called to the room we still didn’t have much detail, so imagine my horror to hear we were on first!  Luckily, Nicola had prepared an excellent opening statement and once you get started you forget about the TV cameras and the people in the public gallery, and just crack on with business.  I was aware of the rogue Scouse accent in the room, but it was as warmly received as it always is in Ireland*.

Following my spot were lots of familiar faces from the likes of the Family Mediation Ireland, Dublin Bar Solicitors Association and the Irish Commercial Mediation Association (of which I am proudly a Council member), including CEDR Ireland Mediator Practice Group Members like Austin Kenny and William Aylmer, and Mediator List members like Helen Kilroy.

Once the opening statements were completed, which ran over time with some lasting nearer to 20 minutes than the allocated five minutes (that’s the last time I stick to the limit!), we each faced questions from our own Senator.  Our questions were fielded excellently by Nicola, who authored the Law Reform Commission Report on ADR, a fact not lost on several of those present, and it was commented on a number of occasions what a pleasure it was to have Nicola there.

Our questions were mainly related to confidentiality at mediation and we were asked to comment on what happens if a party wishes to make a complaint about the mediation provider itself.  Following further questioning from other Senators and Deputies to the other speakers, we suggested that with such a range of interested parties present we should collaborate on how to promote the use of mediation in Ireland, for mutual benefit.  This was well received with four different bodies approaching us afterwards asking to be involved.

To read our various submissions on the Mediation Bill including our opening statement, click here.  Further information, including a record playback of the event will be available in due course.

*For those who don’t know, Scouse is actually food!  It was originally a stew eaten by sailors in “the old days” and is very similar to Irish Stew.  Blind Scouse is for really poor people or vegetarians – it is Scouse with no meat.  The distinctive Scouse accent is a mish mash of Lancastrian and Irish accents (plus others from across the world), and some Scousers (like my Uncle Mikey) sound like they could have originally started life on the streets of Dublin rather than across the water in Liverpool.  For a great Scouse recipe click here.

Tags: , , , , , , ,

Leave comment

May
11

Shopping for a fair deal

Categories:

By Justine Mensa-Bonsu, Adjudicator, IDRS Ltd, part of CEDR

The Groceries Code Adjudicator Bill

In February 2010 the Groceries Supply Code of Practice was introduced to regulate the relationships of supermarkets and their suppliers. This Code applies to major grocery retailers, being those with a turnover exceeding 1 billion pounds. The Code obliges retailers to “deal fairly and lawfully with their suppliers”; “not vary supply agreements retrospectively, except in circumstances beyond the retailer’s control which are clearly set out in the supply agreement”; and “pay suppliers within a reasonable time”. The Code also limits the power of retailers in a number of respects.

To date a body has not been established to police the Code and ensure compliance however, in the Queen’s speech this week, it was announced that the Government is planning to establish a Groceries Code Adjudicator to enforce the Code. The adjudicator will resolve disputes between retailers and their direct suppliers; investigate possible breaches of the Code and; provide recommendations on changes to the Code.

A senior Government source is reported to have said:  “This is about redressing the balance between David and Goliath. We want to give the Davids more powers to ensure they are getting a fair deal.”

ACS (Association of Convenience Stores) chief executive James Lowman said: “We welcome this important step towards a fairer market. When big stores bully suppliers everyone suffers.”

“In the case of small retailers the effect can be the supplier transferring the costs of unsustainable agreements with big customers onto smaller ones. This could be through increased prices, reduced promotional support or simply worsening service standards.”

“In 2008 the Competition Commission recognised that unfair practices in the Grocery market ultimately harmed the consumer. Bringing in this law is well overdue.”

The redressing of the imbalance of power between two parties, as outlined above, is one of many positive attributes of adjudication.

Adjudication has recently been incorporated into CEDR’s services by way of its relationship with IDRS Ltd. IDRS Ltd provides a consumer redress service which very often sees a sole trader or single consumer mount a claim against a large national or multi-national company or organisation. Such a claim would be timely and costly if pursued through the courts but adjudication allows the dispute to be resolved quickly and at low cost. The adjudicator will also seek to redress the balance of power between the parties by ensuring they are on an equal footing and are given the same opportunity to present evidence.

The Government is clearly in support of the adjudication process and clearly retailers and suppliers will be hoping that the Groceries Code Adjudicator is a success.

Tags: , , , ,

Leave comment

Apr
24

Negotiation Competition 2012 – with help from CEDR

Categories:

By Andrew Fiddy, Project Coordinator, Skills Solutions, CEDR

In the 2012 finals of the CEDR sponsored University Negotiation Competition (held this year at last year’s winner’s homeground – Manchester Metropolitan), twelve teams went head-to-head negotiating three Olympic themed scenarios which could see the LOCOG stumbling at the first hurdle this Summer.

At the sound of the starting pistol the first negotiation began and saw the delegates playing representatives of the management of three blocks within the Olympic village.  The task was to divide up international teams. The issue:  a fixed security budget.  This negotiation challenged teams to divide a fixed pie and the teams had justifying why they team should receive a greater share of the budget.  Taking on more disruptive teams would warrant more money, but alternatively housing the more wealthy teams is another way of making money irrespective of budget share.

In good-humour, negotiators went about dividing up national squads from around the world.  The teams avoided awkward neighbour combinations (North and South Korea, the U.S. and Iran, Britain and France..!) The dynamics and strategies of each team differed greatly, but the gold medal went to the team who facilitated the discussions using humour to both diffuse and claim national teams.  Within this team, each negotiator had distinct roles; one personable and cajoling, while the other the matter of fact.    By claiming the riskier teams, not only allowed the negotiators to claim a larger share of the security budget but also capitalising on the charging money for media access to three-time Olympic Gold medallist Usain Bolt.

Round two concerned open-air concerts in Hyde Park to entertain music-lovers during the Olympics.  The teams were divided into the local Residents Association and the Royal Parks Agency / concert organisers.  The dispute had three distinct issues; setting precedent, the role of the Royal Parks Agency and the control of events in terms of decibel levels and numbers.  This negotiation really encouraged creative solutions and judges were all impressed at how all teams thought around the issue (silent discos to name but one example), prepared thoroughly and anticipated questions.  The winning teams argued through interests, created value and managed both their and others emotions by ceding concessions on hotly fought over issues.

In an especially topical fashion, the third negotiation focused on public sector strikes during the Games.  One set of teams played the union representatives of a group of key workers who were planning to strike potentially causing havoc for Olympic organisers.  The other set represented the interests of the exasperated London boroughs who are keen not to upset any threat to the smooth running of London 2012.  Replicating an end-game of a settlement process this negotiation challenged teams to energetically engage in bargaining and agreeing a comprehensive settlement.  With legal issues surrounding employment rights, a long list of commercial demands the negotiation fell to how the teams built trust between one another.

In the true spirit of the Olympics 2012 and with not a touch of the BBC drama twentytwelve, the slogan ‘Inspire a Generation’ held fast for all participants.

For those interested in negotiation CEDR’s Advanced Certificate (running over seven days in June, July and September) has only a few places left. http://www.cedr.com/negotiation

For more details on the Negotiation Competition please visit http://www.cedr.com/skills/competition.

 

Tags: , , , ,

Leave comment

Mar
30

Economic growth – Could ADR hold the solution?

Categories:

By Justine Mensa-Bonsu, Adjudicator, IDRS LTD, part of CEDR

At the end of March 2012 the Office of National Statistics published data showing that the economy contracted by 0.3% in the last quarter of 2011. However, the UK is likely to avoid a technical recession as the Office for Budget Responsibility expects positive growth in the first quarter of this year; not exactly good news.  Since mid 2010 the economy has been alternating between growth and contraction, each quarter technically avoiding a recession whilst also avoiding any sustained growth. No doubt everyone is hoping that the targets for economic growth in 2012 will be met or even exceeded, but what measures can be taken to drive growth forward? The Government’s plans were outlined in the latest Budget but measures to drive growth are also being considered in Europe. These could have a significant impact on UK consumers.

European Commission and access to ADR

On 29 November 2011 the European Commission (“EC”) published a Communication on Alternative Dispute Resolution for consumer disputes in the Single Market alongside legislative proposals. The EC proposed that all EU consumers should have access to ADR no matter what product or service is purchased or where in Europe it is purchased from. The Department for Business Innovation and Skills consulted with UK stakeholders on the proposals earlier this year.

The EC asserts that by giving consumers greater confidence in their purchases they are more likely to do business with unfamiliar traders which in turn should drive competition and growth. Currently, when someone purchases goods or services, they are likely to choose a familiar or local trader. Consumers are naturally wary that if they purchase from an unknown source and something goes wrong, it may be difficult to rectify the problem without undertaking a long and costly court process.

Managing the cost of consumer dispute resolution through the Communications and Internet Services Adjudication Scheme (CISAS)

ADR is a cheaper and quicker means to settle a dispute compared to court action and it is already widely used in consumer disputes. The issue identified by the EC is that ADR is currently not available in all sectors. CISAS, for instance, is a scheme run by IDRS Ltd which is used to settle disputes between consumers and telecommunication providers, however, CISAS will not deal with disputes surrounding equipment faults. The EC is aiming to fill such gaps so that every dispute is covered.

ADR may involve mediation or adjudication and both are well suited to consumer disputes. Mediation allows both parties to engage in the process themselves and undertake a collaborative approach to reach a solution which satisfies both sides. Adjudication allows an independent third party to assess the evidence and decide upon a fair and reasonable outcome for the parties. Both methods are more cost effective than court proceedings yet achieve a solution that is both fair and in line with the law.

If the EC proposals are effected, the hope is that the growth in ADR will translate to a commensurate growth in the UK economy.

Tags: , , , , , , , , , , ,

Leave comment

Feb
06

Consult Max: What path for the UK when it comes to devolution?

Categories:

 By Daniel Kershen, CEDR Foundation project Co-ordinator

Whilst political debate has its place in the decision making process, an issue this important to the British public, with this much historical relevance may need to be discussed more expansively than just through a written consultation.  Having the solution to an issue that will affect such a large number of people should only come from open collaborative consultation with the stakeholders, where there is room for the breadth of expression necessary to be a true exposé about how the issue is understood, rather than through box ticking which acts to narrow perspectives.

A political debate

Alex Salmond, Scottish First Minister, has submitted his consultation document for the 2014 referendum on Scottish independence.  Having taken the opportunity to talk to Mr Clegg at the start of a British Irish summit earlier this month, the Scottish premier reported that discussions had been “adult and mature”.  These discussions and other rumblings from Holyrood have prompted number 10 to set a meeting between Mr Salmond and Mr Cameron to discuss the prospective referendum and it is clear that they both have different ideas of what the solution to this situation should look like.  Both leaders try to represent their respective nations, however at a time when politicians need to keep close ties with the communities that support them, it could be suggested that they could do more to build consensus.

Ed Miliband on the other hand has pledged to fight Mr Salmond over what the Labour party sees as the best interests for Scotland in the current climate; “Labour is going to show in the campaign that we will go toe to toe with Alex Salmond on the issues of who can create a fairer Scotland, who can create a Scotland that is better for the working people of Scotland”

It appears that the leaders of the national political institutions of Great Britain may have become caught up in their own political agendas, raising concerns that this debate on what referendum to ask, needs to involve the people who will be affected by any change.  In saying this CEDR recognises the value of the consultation that the Scottish Government has submitted, yet the question still needs to be asked; is this enough?  Involving the public in such a process does garner their perspective in part but it also serves to limit the options and can pigeon-hole people into responding to one side or the other, building an “us or them” mentality.

What process?

In a situation like this, where there are multi-party disagreements arise on how to proceed and people present their positions as fixed, CEDR’s years of experience and learning from managing difficult situations would suggest that some form of facilitated collaborative process might help to open out the issues and restart at an exploration stage, rather than going straight into bargaining.

Rather than taking the adversarial approach so often played out by the political elite, working collaboratively to understand firstly all the issues that are active and secondly find a way through them by which everyone’s needs are considered could be more effective and leave everyone feeling heard and involved.  Compared to a process that often leaves stakeholders feeling outside of the sphere of influence and limited in their ideas, options and responses, collaborating in such a way could allow for relationships to be improved rather than degraded, understanding gained and whatever the solutions may end up looking like, for those affected to walk away satisfied and dedicated to the decision that was made.

Reports last week on the BBC have indicated that such a process may be underway as interest groups from churches, business communities, trade unions and the voluntary sector have come together to explore the issues.  They want to shift the focus of the debate away from the politicized dueling and back towards the needs of ordinary people.  Having found that the “us or them” mentality of the political landscape has prevented significant development in the past, this group aims to look at the common interests without a “fixed view about the outcome of the referendum.  We want to open up everyone’s minds to consider all options”, said Alison Elliot, convener of the Scottish Council for Voluntary Organisations.

She continues: “So far, we have only heard from those who have a fixed idea of the result they want in the referendum and who seek to narrow the debate. This coalition will build a wide-reaching, transparent discussion about the future of our country that considers people’s aspirations and the challenges they face.”

There are many questions still remaining to be answered:  Do the Scottish people want devolution?  What does the rest of the UK think and does that matter?  How can changes be successfully made?  etc.  Therefore there will need to be more discussion, exploration and understanding built in the coming months.

Tags: , , , , , , , , , , ,

Leave comment

Nov
30

The Autumn Budget – where next for the consumer?

Categories:

By Justine Mensa-Bonsu, Adjudicator, IDRS Ltd, part of CEDR

George Osborne used his autumn statement to give an update and response on the state of the economy. The latest economic forecasts paint a gloomy picture and there is still high risk of a “double dip” recession. Many will be hoping that the Chancellor’s newly introduced measures eases the pressure on consumers in order to increase spending and boost growth.

In the current economic climate consumers are faced with rising inflation figures in the wake of welfare cuts, lower relative incomes and high unemployment. Consumer spending is at an all time low, and it is no wonder that people are demanding value for money. According to the Office of Fair Trading, unsatisfactory goods and services cost British consumers more than £8bn per year. But consumers seeking to enforce their rights have greater protection than ever and redress  is no longer limited to the court system.

Increasingly consumers are avoiding a lengthy and costly court hearing and turning to alternative forms of dispute resolution. At the forefront in this area is adjudication. The first point of contact for a consumer with a complaint will  always be the product or service provider, however, once any complaints process  has been completed, if the consumer remains unhappy, then adjudication can be  considered as the next course of action.

Sorting out disputes of consumers (and businesses) under financial pressure

Adjudication is a process by which a claim is considered by an independent third party. It  is private, low cost, quick and effective. The process is usually document based and there is no need to attend a hearing. The adjudicator will consider the evidence provided and make a decision in line with the relevant law and in consideration of what is fair and reasonable. The decision is only legally binding once the consumer accepts it. If the consumer is unhappy with the outcome at adjudication, they will still have the option of pursuing a claim in court.

At a time when consumers are watching the pennies, adjudication assists people in enforcing their rights while offering real value for money. When disputes occur, in the current ecomony, it is essential to be able to respond in an appropriate, cost-effective way.

Tags: , , , , , , ,

Leave comment

Nov
17

Missing the bigger picture: Might there be a problem with the Leveson Inquiry’s construction?

Categories:

By Daniel Kershen, CEDR Foundation Project Coordinator

Yesterday saw the end of the first week of evidence at the Royal Courts of Justice in the Leveson Inquiry.  This third and final day for this week heard evidence from Michelle Stanisbrook, general secretary of the NUJ and Michael Rusbridger, editor of the Guardian Newspaper.  Next week the Inquiry is anticipating to host a red carpets’ worth of stars, with Hugh Grant, JK Rowling, Charlotte Church and Sienna Miller all expected to take the stand.

Addressing the issues

The Inquiry process got under-way on the 14th November 2011, after the Prime Minister announced the investigation into the role of the press and police in the phone hacking scandal, on 13th July 2011, under the Inquiries Act 2005.  The highly respected Lord Justice Leveson was appointed as chair of the Inquiry shortly after this announcement and has been working between then and now to set down the “Terms of Reference” for the Inquiry.

Terms of Reference 

His “Terms of Reference” set out the aims and objectives of an Inquiry and generally they direct its investigation to; establish the facts, decipher learning from these events, reconcile and find resolution for those affected, rebuild public confidence in institutions, elucidate on accountability, lay blame and attribute retribution and serve the broad political agenda.

It should be recognised that consciously or not the “Terms of Reference” will be influenced by his perspective and knowledge, his peers, colleagues, social groups, and culture.  It is normal procedure that an individual would lead the process, and it is understandable that the government would want a firm leader heading up the investigation into such a sensitive and perilous subject.  However in determining the flight path of this Inquiry, could it have been done differently?  Were stakeholders involved at this design stage of the process or were their interests represented?

Getting a wider view from the outset or is there a missing piece to the puzzle?

As experts in dialogue and facilitating difficult conversations, CEDR has been looking at the Public Inquiries process to see how they would function with more of a focus on collaborative dialogue.  This research leads to questioning the traditional methodology used in the design of an Inquiry.  Was this process the most effective to deliver the most appropriate Terms of Reference?  Was there consideration of any other processes?  Will these Terms of Reference lead to the most appropriate outcomes for the Inquiry?  Who are the outcomes aimed towards and why?

In the “Applying Neurobiology to Mediation and Negotiation” course here at CEDR, delegates were asked to consider how early stakeholder involvement in the decision making process can affect their engagement, trust and sense of value of the process.  Similarly to a mediators perspective, it is frequently those who have been greatly affected by events that know the pathways to resolution, although their judgment and focus is often clouded by emotions.  Their involvement, specifically at the design stage, in determining the direction of the Inquiry, would act to build public confidence and will often find the most appropriate route to resolution.  In a case of such breadth of impact, with potentially over 6000 individuals hacked, it would seem prudent to involve those stakeholders somehow in determining the tracks on which to run the Inquiry.

Tags: , , , , , , , , , , , ,

Leave comment

Oct
11

Blindingly Optimistic

Categories:

By Daniel Kershen, CEDR Foundation Project Co-ordinator

Research this weekend has revealed the reason behind the human proclivity of remaining positive, even in the face of grave adversity reports the BBC.  It turns out that “laughing in the face of danger” is not necessarily down to bravery or courage, but rather a propensity for the human brain to virtually ignore any information that dissolves their rose-tinted world-view.  Not laughing anymore!

The study, published in Nature Neuroscience this week, identifies a ‘faulty’ process in our frontal lobe that leads people to happily accept news that allows them to reduce their perception of risk in any given situation, whilst they broadly dismiss anything that indicates that the risks are actually higher than previously thought.  (This research relates closely to Margaret Heffernan’s insightful work in “wilful blindness”, which you can read about on the CEDR Blog here.)  This “optimism phenomenon” is something that mediators, working with parties in conflict, often encounter and have to manage effectively.

Participants in the study, whilst being monitored in a MRI scan, were faced with a series of possible negative life events such as developing cancer or being in a car accident.  They were asked to rate the risk of this event happening to them, and having given their evaluation, were presented with the actual statistical evidence.  If the evidence was lower than their expected risk, participants were keen to downgrade their risk significantly to align with the evidence.  Conversely if the participants evaluation of risk was lower than the evidence presented, the participants were loath to accept this and maintained the underestimation of some catastrophe occurring to them.

The MRI results revealed that when given negative information, those of a sanguine disposition presented the least frontal lobe activity, whereas the morose few showed the most activity.  Since frontal lobe activity is linked with processing errors, scientists have deciphered that those who are more inclined to predict positive outcomes are not swayed by evidence that goes against their optimistic outlook.

The world of science has debated why optimism is such a powerful driver in behaviour, even when faced with information that goes completely against our rosy prediction.  It appears now that there exists an observable filtering process occurring in the human brain to manage this momentary dissonance, letting optimism consistently win out.

This is something that can be observed in conflict quite clearly.  Often individuals in conflict will find it especially hard to recognise and take on board the implications of information that contradicts what they believe to be true or fair.  Conflicting parties often find that their deep seeded feelings of righteousness, and subsequent expectations for success can hinder them from seeing all the possible ramifications of their actions in a conflict.

A CEDR mediator is specifically trained to manage the testing of realities, and as such the negation of potential risks and pitfalls that lie on the road to resolution.  Through mediation the parties are encouraged to look at the whole picture, to stand back from the situation and develop a more rounded view of what’s going on.  Optimism is naturally illustrated in exploring the parties “best alternative to a negotiated agreement” (BATNA).  Part of the mediators role is to facilitate the development of a more holistic understanding of the dispute, and so should also address what the parties see as their “worst possible alternative to a negotiated agreement” (WATNA).

Optimism is key to the human condition, driving us to reach for our goals and strive to achieve.  However as this study reveals, sometimes that same optimism can prevent us from being able to see the risk that we may be taking in pursuing those goals.  In conflict the risks are often great, and in many cases greater than parties let themselves believe, however the mediation provides an opportunity for the parties to sit down and recognise these for themselves and realistically evaluate how dangerous they are.

Our experience, contrary to this research, is that in disputes this recognition of realities, both positive and negative, does have a mitigating effect on how the parties perceive the conflict to play out.

Tags: , , , , , , , , , ,

1 comment

Sep
08

Business complaints about public sector contracts at their highest rate ever

Categories:

By Andy Grossman, CEDR Foundation Director

On Monday, the Guardian reported on a survey by law firm McGrigors, that businesses complaints to the Office of Government Commerce regarding public sector contracts had reached its highest level since the recession.  It states that there has been a 55% increase in complaints from last year, an amount quadrupled from 2007/8.  Of these cases, 89%, as opposed to 45% last year, were investigated.

Stuart Cairns, director at McGrigors, gives some reason to this increase: “The recession has meant that public sector contracts are at a premium. There are fewer contracts to go round, so disputes over how contracts are awarded have become more frequent and bitterly fought.”

Cairns also says that the government are coming under increasing pressure to investigate these complaints as organisations are becoming more conscious of their rights under procurement law and as such increasingly likely to take the matter to court.

In these matters, it would appear that in order to reduce this year on year rise in complaints regarding the procurement of public sector contracts, a change of practice is needed.  Moving away from throwing dwindling resources into court cases and investigations and moving towards more collaborative problem solving might facilitate the formation of a more appropriate and achievable contract, whilst reducing the overall spend dramatically.  However before this step can be taken, a change in attitude is necessary, away from win-lose culture in business towards a win-win.  Essentially many of these businesses could benefit from working together to adapt a contract, rather than setting themselves opposed to the government and fighting it out.

‘The pie’ may be smaller due to reduced resources in all areas, however this could mean there is more opportunity to collaborate and work closely with the other parties to attempt to realize shared goals.  There will inevitably be disagreements of some form in business, especially in times of low resources, yet how this is defined is by how these disagreements are managed.  Working collaboratively gives the opportunity for a disagreement to become the positive point of change.

CEDR has been looking at the practice of relational contracting (or alliance contracting) of which one facet is that a contract is not just one long term agreement, but works from the basis of building in many shorter term contracts to allow for review and reflection, giving those involved the chance to tackle any substantive issues before the need for any possible complaints.  In order to carry this forward effectively a change in attitude is necessary.  Perhaps strengthening this through the inclusion of a clause within the procurement process, stating that in the expected event of a disagreement, parties will seek a collaborative solution prior to starting an action, could help change their approach.

Whilst the government looks  at getting it right the first time, another area of  examination could be the contract itself and perhaps attempting to build in more collaborative working processes to manage the inevitable disputes that arise.  At least this way they may not only achieve the adaption of the contract to make it more “winable”, but also find out more about the driving values and needs behind its formation.

Tags: , , , , , , , , ,

Leave comment

Sep
05

“A Little More Conversation, A Little Less Action”

Categories:

By Daniel Kershen, CEDR Foundation Project Coordinator

Whether its nursing a tall Pepsi Cola in a shady bar in the backstreets of Memphis, eating what looks distinctly like a fried peanut butter and banana sandwich in a cafe off the High Street or sifting through the various badges and pins in the local bric-a-brack store, Mr Elvis Presley continues to be seen the world over.

Indeed one could be forgiven for believing that the King is still alive after the recent news, reported in The Lawyer and BBC, that, in December, Elvis’s estate has brought a claim, supported by litigation funder, Calunius Capital, against Arista Music, the record company that owns the rights to all his songs recorded pre-1973.

The matter in dispute rests on the royalties received from downloads and other new media.  The original agreement meant that Elvis and his manager, ‘Colonel’ Tom  Parker, who had sold the rights to his pre-1973 songs for $5.4million, received an on-going flat fee of around $10 per song each year.  This figure, Elvis’s estate claim, is “conspicuously disproportionate” to the amount that Arista have earned with the emergence of downloads, ringtones and apps featuring the King’s music produced prior to 1973.  Elvis’s estate are claiming approximately €12million from 2002 to present, including  prospective earnings up to 2023.

This case bears the hallmarks of one that could be saved resources, time and energy through mediation; commercially it is just good business  Being able to say “don’t be cruel”, “I got stung” or tell your counterpart that their demands are “too much” or that a party has been “hurt” could have a dramatic effect  dissolving enemy images of the other party having a “wooden heart”.  Being able to “surrender” ones claims without losing face maintains an organisations public profile and value.  Inevitably in conflict one assigns reason to actions, often creating long term business rifts through assumed intentions.  Necessarily to growing business is dealing with the “suspicious minds” developed in conflict, instilling trust in your stakeholders and helping them say “I believe”.

Clearing the “Moody blue” by opening a face to face dialogue between the parties in a facilitated process can reduce the emotional resistance to negotiations “way down” and bring about a resolution that both parties can accept.  If the two parties are continuing their business relationship, good practice would suggest that having an open dialogue can facilitate a mutually acceptable resolution.  Not only this but having the opportunity to build clarity on each-others needs and values may help develop a more accurate and appropriate understanding between the two parties leading to a more productive working relationship; yes a dispute can lead to a relationship being “all shook up”, but the fact that they are in dispute means that a “change of habit” was needed to continue.

Litigation deals much more readily in ultimate statements, in winners and losers.  However mediations are in part a facilitated negotiation, there’s no need for the parties to concede and say “Alright, ok, you win” as there is no judgement handed down, it is their choice what the agreement looks like.  This means they can address their specific business and emotional needs through the resolution, tailoring it to their position.

It doesn’t need to be “now or never”, the mediation process can be applied at any stage if requested to the court.  A key element of mediation is that it relies on “the wonder of you”, the parties themselves, to find a resolution that doesn’t leave them feeling “lonesome tonight”.  An effectively run mediation has the potential to holistically resolve the issues, meaning the dispute doesn’t stay “always on my mind”.

Not only does mediation offer all these options, in essence it models the proper way to do business.  As mediators, we understand that conflict does happen, especially where two or more parties or organisations are working towards a goal.  If someone were to step on your brand new “blue suede shoes”, a demand that they repay you the money spent on them might not get you as far as working with them to find out how best to restore them to their former glory.  Mediation makes sense in commercial disputes such as Elvis’s estate versus Arista by modelling best practice and giving the parties the opportunity to explore and negotiate their particular wants and needs before designing a settlement that won’t leave them “crying in the chapel”. Uh-huh.

Tags: , , , , , , , , , ,

Leave comment

Older posts «