Letter from America

“When you go will you send back, A letter from America?” The title lyrics to the hit Proclaimers song captures how my career and work in Europe and the UK has drawn on experience and lessons from the USA; something I reflected on recently while in Boston.

With 2017 marking the bicentennial of Harvard Law School, it was a great time to visit Boston and I was privileged, alongside Dr Karl Mackie to talk to students about our role in the breakthrough of Mediation in Europe, CEDR’s international activity and the evolution of leadership and negotiation. Chairing our session was Professor Eric Green, a world leading ADR expert with whom we have had the pleasure to work with over the years in pioneering mediation programmes.

It was apt that I should be back in the US talking about my mediation journey as it began here in the 1980s. In 1989, the International Financial Law Review published an article of mine entitled ‘Are We Ready for ADR in Europe?’ inspired by working in San Francisco and experiencing mediation first hand. From the outset I was impressed by how Mediation offered clients, compared with litigation, a more suitable platform and opportunity to take a more strategic approach to the exploration and resolution of complex commercial disputes and deadlocked negotiations. As a young lawyer, acting for international clients I realised their interests could be better served by embracing what I saw to be the Four Cs of mediation: Control, Creativity, Commerciality and Confidentiality. This view was strengthened by my increasing exposure to mediation in the courts of both Northen California and New York and how, if American lawyers, who were conditioned to be adversarial, could embrace an alternative to litigation, Europe should follow suit.

On the day Karl talked about CEDR in 2017 and the breadth of its work both domestically and abroad, consulting with governments and ministries of justice on improving their dispute resolution infrastructure and access to and quality of Alternative Dispute Resolution processes. This has been achieved through encouraging the implementation of mediation into commercial dispute resolution contract clauses in addition to guidance and information about how and when to best use ADR. Karl also spoke of how structural reform within the courts has been integral to the proliferation of ADR; ensuring mediation is firmly established in the legal landscape. He also stressed that high standards of accreditation underpin the success of the profession and something that has been at the heart of CEDR’s approach to training, leading the industry in professional standards.

The overriding focus of our talk was leadership, a topic close to mine and Karl’s heart. We focused on young pioneers and leaders and the qualities needed to change the culture and mind-set of an industry and indeed country; Communication, Confidence, Purpose and Patience. Reflecting on my own journey in ADR, I recalled facing near overwhelming scepticism and barriers from leading lawyers who did not think my energy and enthusiasm would be enough to change the status quo. However, many years later these people, some of them judges, had the grace to admit they were wrong about ADR and became its staunchest advocates. I thus invited the audience to think about how they, as young leaders might play a part in innovation and change. On that note I am delighted with the current focus of the CEDR Foundation, the charitable arm of the company, in developing conflict management, leadership and negotiation skills among emerging business and community leaders through our New Dialogues programme.

The States influenced me greatly in bringing ADR to my home jurisdiction and speaking at Harvard prompted me to re-visit Getting to Yes by Fisher and Ury. Reading it for the fourth time, I was struck by the freshness and relevance it maintains today, particularly the overarching message: everyone wants to participate in decisions that impact them and few accept decisions dictated by others. The seminal work of Fisher and Ury, carried forward and developed by the Harvard School of Negotiation has inspired me in my work and I have always strived in my negotiation and mediation practice to provide a dynamic environment and structure whereby parties can engage with their disputes to move past entrenchment and resolve deadlock.

Our seminar ended with a lively and engaging debate with the students over the future of ADR and the kind of cultural and structural changes needed to develop confidence in the mediation processes, not just in commercial disputes but in a wider social and political context. The hosts from the Programme on Negotiation were curious about Brexit and they were of the view that the negotiating teams need to avail themselves of low profile support from negotiating specialists which received widespread support. To read more about Brexit and mediation, read Karl’s blog.

ADR, conflict management and negotiation have come a long way since I entered the field and with our foot firmly in the door, we are facing a new set of challenges. Integral to meeting these is ensuring we train, educate and inspire the current and next generation of legal, business, academic and community leaders. In pursuit of this, I hope we will maintain and strengthen our partnership with the US and Harvard which has been so beneficial over the years.

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