The art of making progress

by Nick Pearson

Manage difficult discussions

First published on 28 Mar 2017

I was talking recently to a group of lawyers, mediators and mediation users. We were discussing current trends in the field of dispute resolution. I mentioned the number and variety of matters I had been involved in acting as a neutral chairman, which, for me at least, has been a recent new trend. All of the cases where I have acted as the neutral chairman positively assisted the parties to move forward the problems they were struggling to deal with, and identify courses of action to help to deal with these.

The group I was talking with were not all familiar with this process. There may be others amongst you who would like to know more so let me provide a brief description of the process and examples of where it may produce successful outcomes.

The Centre for Effective Dispute Resolution (CEDR) provides within its vast library of helpful information on dispute resolution services and processes a description of neutral chairing as follows:

Neutral chairing is the involvement of an impartial third party to facilitate negotiations, discussions, consensus-building, problem-solving, relationship-building or to manage existing or potential difficulties in a wide variety of situations.

The benefits of having a neutral chairman include the ability to reduce the risk of overt confrontation, to provide a moderating influence and to provide summaries of points made and positions reached. CEDR has unparalleled experience in facilitating dialogue in a diverse range of demanding situations. Our consultants have a unique skill-set combining extensive mediator practice, professional background and industry knowledge.

Neutral chairing processes are designed to fit the needs of their users.

The aim of neutral chairing may be to:

  • Enable finality – a decision, action plan or agreement
  • Deliberately plan for open-ended dialogue, where the process allows voices to be heard and issues raised, enables the next steps to be taken or devises a framework for future action
  • Be the sole process used or to combine with other dispute resolution techniques such as mediation, early neutral evaluation or adjudication.

Processes are tailored to the needs of the users, but can draw on a range of models:

  • Assisted stakeholder dialogue
  • Brokered talks
  • Independent chairing
  • Independent review
  • Facilitated visioning and planning
  • Relationship building
  • Scheme design

From my observations, there are a number of interesting and distinct points to be made concerning problem-solving using a neutral chair:

  1. The process is aimed at problem-solving, not necessarily dispute resolution. Indeed, there may not be, and often there is not, any dispute in the sense of litigation/arbitration pending at all. This is different from mediation where the subject of the dispute can develop its own life, often bringing with it ancillary issues concerning legal costs and procedural wrangling.
  2. The process can be a step- usually the first step- in dispute resolution and may develop into another form of dispute resolution, eg mediation. If this does follow it is likely that the subsequent form of dispute resolution will be in a more advanced state of preparation than otherwise.
  3. Sometimes as important as the neutral third party chair is the need for the process to take place in a safe place-i.e. on neutral ground, in a confidential and off the record-setting, in the presence of and assisted by a neutral, independent, person (chairman).
  4. The process is generally much less adversarial than mediation where tensions and point scoring can dominate.
  5. Legal argument and position-taking are less common and, with the help of the chairman, the parties seem more receptive to each other’s ideas, and are less tied to a mediation format.
  6. The process is highly flexible and bespoke- more so than traditional mediation. For example, a formal chaired meeting involving all parties may take place following a series of separate meetings with individual parties over a period.

EXAMPLES

Scenario 1—Partnership restructuring

Assisting a small group of partners in a professional practice where the future direction and management of the firm was under discussion. All of the partners recognised the need to restructure but there was no agreement as to the way forward. They all wanted to be able to express their views and this was made much easier with a neutral chairman managing the process.

Individual meetings with each partner were followed by an offsite plenary session involving all.

Scenario 2—Joint venture breakdown

In this case the CEOs and senior management in two joint venture partners had fallen out. They had lost trust and confidence in each other and the joint venture’s future was at risk. There was a real break down in relations at a senior level and day to day operations were adversely impacted.

At a meeting away from the office and attended only by the key personnel and without lawyers I chaired discussions between the individuals involved and helped them to find a modus operandi to enable their joint initiative to proceed.

Both sides had the opportunity to let off steam, to speak openly in a safe setting and to respond to questions and ideas raised from the chair.

In this case there was no question of pending litigation. What was needed was a rekindling of the collaborative drive of each side.

Scenario 3—Future planning for association of professionals

An umbrella organisation under which groups of professionals were conducting their business needed to change its structure. Different members had different ideas as to its future direction.
After spending several days meeting individually with each of the members, I helped work up and agenda of items for discussion, and chaired a meeting of the organisation at which it future role and direction were debated.

Scenario 4—Corporate settlement planning

Two large FTSE100 companies, whose businesses were closely connected at many different levels, were heading for a major dispute likely to be resolved by arbitration, if not otherwise resolved.

Neither side wanted to escalate the dispute to a formal process – e.g. mediation or the commencement of an arbitration.
I chaired a meeting between the two senior members of management responsible for the issues aimed at avoiding or planning for the potential dispute. Both sides recognised that a formal dispute would be harmful to both, and wanted to plan for and discuss means by which that might be avoided.

It was important that this take place quickly and cost-effectively on neutral ground and in private and under the control of a neutral chairman.

In circumstances where, for whatever reason, mediation, or another form of more formal dispute resolution, may not fit the bill I hope that these comments and examples will encourage consideration to be given to the use of a neutral chairperson who may be able to help parties seeking to resolve a problem, to do so in what can be a very direct and efficient way.

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