Blogoir

The International Bar Association's Annual Conference is this year in Vancouver in early October.

And I am honoured to be included on their speaker's list.

Here in the latest Standpoint magazine is an article by Joshua Rozenberg about Mediation and the new, excellent strategic dispute resolution service offered by ADRg Ambassadors.

Alas the most interesting sections of the article about ADRg Ambassadors are not included in the online version.

So to read them you'll have to buy the magazine .

Well worth it.

Just to say that those readers who have not yet had a quick look at ADRg Ambassadors - a bespoke new senior mediation, consultancy and training panel comprising various former Ambassadors - should do so.

Since our launch in January we have attracted some healthy interest, including from quite unexpected places. It turns out that there is a lively demand for the regional skills, languages and professional wisdom which this panel might bring to bear in dealings with foreign governments and organisations, especially in unusual or pioneering areas of activity.

Plus the training aspects show early promise. There are a number of different 'diplomatic' training options out there, but very few if any combine high-level operational experience with professional mediation training.

So if you are a business doing creative things in a brand new commercial area and you want to discuss quietly how best to set about tackling foreign governments (or foreign problems which do not fit into neat categories), look no further.

Get in touch with the experts.

The tumultuous launch of ADRg Ambassadors gives way to a requirement to write an article for DIPLOMAT magazine about Diplomats and Mediation.

One interesting theme is 'neutrality'. Is it possible for any international mediator in a dispute or problem to be truly impartial, and does it matter if that is not achieved or achievable?

It is probably possible for diplomats to be adequately neutral for most practical purposes if they have no evident axe to grind in the dispute concerned. Hence small smart countries geographically removed from a problem can have an impressive impact - a classic modern example being the way Norway used diplomatic nimbleness to broker the Oslo Accords.

On the other hand, one of the hardest tasks facing a mediator is not to get personally 'involved'. Hence mediators who are seen as impartial (enough) on the substance themselves usually have reputations to win or lose, so they might end up over-pressing one or other of the parties to reach a settlement - itself a form of non-neutrality.

Is this a bad thing? Maybe not, when issues of war or peace are at stake. On the other hand, a party which feels that it has been coerced or bamboozled into a settlement against its better judgement or instincts may just not try to implement that settlement, so the much-praised deal falters anyway.

Then there are mediations where divisions between the mediators themselves start to affect the outcome. See this fascinating account of how a German, American and Russian team of senior diplomats tried to broker a deal between Kosovo and Serbia. The Kosovo/Serbia problem in effect became a new place for their other rivalries playing themselves out.

Another option is to outsource mediation efforts to non-diplomats, people who are skilled, modest and anonymous - people who derive their authority as mediators from really being detached from the politics of it all, and who look rather at the emotional and even spiritual factors at play.

Such as the Quakers, who have had a long and usually creditable record in trying to find common ground in some of the world's toughest hot-spots, relying on sophisticated 'impartial listening'.

One important part of their method lies in denying to themselves as far as possible any sense of satisfaction, one reason why career diplomats tend to have no understanding whatsoever of this sort of work - diplomats are impressed by their own cleverness, or at least are told to bring home some glory for their Minister:

If a conciliator believes in confidentiality, he or she must deny themself `many elements of ego satisfaction', maintains Mike Yarrow in his book, Quaker Experiences in International Conciliation. `It takes a certain amount of courage to intervene in a complicated, dangerous situation,' he continues. `To keep it up the conciliator needs some sense of satisfaction. All this can readily build up to a feeling that the individual is essential to the resolution of the conflict, and even that he or she has the solution. Such feelings are fatal to this kind of unofficial effort.'

Conclusion?

None, other than to point to the array of examples of mediating interventions which have made a difference, and the many more where despite heroic efforts by well meaning mediators to help the parties identify sensible outcomes, the problem just keeps dragging on. And all concerned lose out.

Perhaps this happens because, as we all know, issues are like Shrek the Ogre. They have layers:

Shrek:     Ogres are like onions.
Donkey:   They stink?
Shrek:      Yes. No.
Donkey:   Oh, they make you cry...
Shrek:      NO. Layers. Onions have layers. Ogres have layers. You get it? We both have layers.

And you have to be a superhuman mediator to be able to identify all those stinky tear-inducing layers, and then help the parties to deal with them simultaneously.

A group of former senior British diplomats (self included) have come together to set up a new top-end international strategic advice and dispute resolution/dispute management service: ADRg Ambassadors.

Here is the website, just launched.

Check it out, including the excellent and impressive list of policy areas and languages the team covers.

The idea is to bring to bear the unusual specialist skills of senior diplomats - all trained by leading UK mediation experts ADR Group in professional mediation techniques - on high-level disputes and problems.

Mediation training (as we have all found out the hard way) gives diplomats very different professional skills to those normally found in diplomacy - you have to step back from busily trying to solve other people's problems, and instead engage on a 'deeper' level to help the parties themselves explore their own options.

That said, combining world-calls diplomatic skills with world-class mediation training produces a team of uniquely qualified people raring to take on new challenges. As far as we know, this is the first such team of its kind 'in history' 

So if you have a significant problem or a dispute (real or looming) needing some subtle discreet specialist attention, or if you are looking for creative ways to break a deadlock and reach a deal, you now know what to do.

Get in touch with the experts.  

I have been back on the mediation trail, this time leading a successful two-hour negotiation between two people who had fallen out over a private business deal.

Flushed from that triumph I headed for the ADR Group conference in Oxford where many leading UK mediators gathered to mull over trends in the sector.

One issue of course is Regulation and the heavy clammy hand of government. It falls on the mediation world because some public money is available for parties in dispute and so the government wants 'quality control', which means all sorts of mechanisms such as the Civil Mediation Council - and extra costs/hassle for everyone.

There was one poignant exchange between the conference participants. One said that the best way to keep up standards was to be found in delivering high private professional reputations. Someone else retorted that that was "some sort of nineteenth century laissez-faire anachronism - the way forward lies in Regulation".

This is a Back to the Future issue. Remember the Guilds - and their downfall?

What we are seeing now is a doomed pseudo-professionalisation and formalisation of all human activity driven by government 'control' instincts which in effect create new collectivist guilds - those unfairly blessed and privileged by the state, lording it over private associations which are not. This phase will end, but only after appalling damage has been done.

One other effect of professionalising this area is that it is tending to become inflexible: there are all sorts of rival theories and techniques being taught and argued about, as if they were mutually exclusive.

One result of this is that mediations tend to be rather formulaic.

In the US/UK model a day is set. The parties gather. A 'joint session' is held at which they lay out their core concerns (preferably in a civilised way). Then the parties separate, and the mediator engages in deft shuttle diplomacy between them to help identify areas of common ground and so construct a possible deal.

This formula works pretty well in many cases. But it has disadvantages. There is no real negotiation over the process itself, which perhaps the parties would appreciate and value. It also has at its core a hard-nosed pragmatism - cut a deal - rather than prioritising any attempt to achieve reconciliation.

That said, such 'disadvantages' may well be valued by many disputing parties who after months or years of expensive and draining warfare simply want to get it Sorted.

Their lawyers too may be hoping the mediator will be tough and help get some unpleasant messages across to clients which they are loath to convey themselves. See this lively article on Heavy Metal Mediation.

My problem with the very word 'mediation' is that (to me) it sounds soppy and tree-huggingish and somehow limp. I much prefer the idea of problem-solving or dispute management. Which after all is what it is.

We all know that it is far better to face up to issues than pretend that they'll go away - to nip problems in the bud before they escalate and create unmanageable bad feeling and waste time and money.

And if you smart readers have issues within your organisation or between your organisation and another which are just getting stuck and bad-tempered, you know what to do. 

Back from training EU officials in Mediation techniques, with an eye on the role of mediation at the international level.

One of our role-play examples featured an attempt by an imaginary Head of Mission in an imaginary country trying to mediate between his Deputy and a younger Political Officer over how best (if at all) to report back to HQ rumours of unrest in that country on the eve of an important visit from said HQ.

It was loosely based on my own experience in post-Tito Yugoslavia in 1984. I as a youthful and truculent Political Officer thought that the Embassy in Belgrade needed to convey to London serious concern about the risk of decay and perhaps even dangerous collapse in the country.

The Embassy top brass disagreed - Yugoslavia would (they were convinced) Muddle Through Somehow. See one of my first ever blog posts on this seductive and misleading idea.

The ensuing bickering and rows in the Embassy all played out in the long-lost days far before email, when there were few ways to get Confidential analysis fed to London. That was annoying (for me) but it had the advantage of giving Authority (of sorts) to what the Embassy sent in. Now when myriad emails slosh around, there is far more freedom and information, but it is that much harder to extract solid ideas and unambiguous wisdom.

Yet we all did our jobs. Any system requires people up through the policy chain to weigh options and take decisions accordingly. The then Ambassador disagreed with my paper, but he gave it a fair hearing before taking a more conservative/cautious view and feeding that back to London for due consideration.

Later when I returned to London I was asked to submit to then junior Minister Malcolm Rifkind a short note explaining my concerns. Which I did.

It came back saying that the Minister had considered my arguments but concluded that "ultimately it was for the Yugoslavs, warts and all, to sort out their own affairs" (or words to that effect).

Several years later when things in Yugoslavia were evidently sizzling, the next Ambassador tried to alert London to what was happening by sending to the top policy official in London a personal letter warning about open conflict. He got a sneery reply to the effect that it just did not matter if the Yugoslavs started fighting - Brits would just have to go somewhere other than Dubrovnik for their holidays.

This it came to pass that London and the rest of the Western world completely failed to grasp the seriousness of ethnic tensions across Yugoslavia until it was too late to stop the place disintegrating.

Had I and some expert people in the UK system or other systems been believed, or allowed to press their case more authoritatively - or had they been determined and brave enough to force their concerns into more formal complaints procedures and force a change of policy - billions of pounds of UK/EU/US taxpayers' money might have been saved. 

Yet democracies don't work like that.

If the FCO yells at HM Treasury that there is a good chance that spending an extra billion now on squabbling foreigners may save several billions down the road, the case will not even be considered. Too many imponderables.

A fascinating case-study on many levels.

An eruption of peace, or something, in Honduras.

The issue will be how far 'President' Zelaya, if he is briefly restored to office, can manage to manoeuvre anything other than a polite handover to his successor after the forthcoming elections.

If these elections do pass off peacefully, Mr Micheletti can be congratulated on having headed off a very messy situation when Zelaya tried to thwart proper process.

This looks like an outcome where all concerned give something and get something, not as usual a result as it ought to be (see eg Kosovo).

Just a pity that a fraction of the US-led effort put into squeezing Honduras was not used to squeeze the Iranian regime during their farcical elections?

More on that self-proclaimed independent EU-sponsored Report on the 2008 Georgia conflict.

Points of interest from it, as they come:

The Mission had no access to intelligence reports: a serious setback, I'd say. Not least since the whole business was launched because of what Georgia + Washington 'really' thought Moscow was up to, and vice versa.

It has some oddly psychobabble-type passages:

After fighting has ended there is a sad record of killings and other losses, of intense suffering, of dreams and hopes that were shattered, in many cases forever.

... We will come to know that all sides involved in the conflict had their grievances, that their actions had origins in their experience and memory, and that most of those taking part thought that what they did had to be done. In a close look at the peoples´ motives we shall understand their aspirations, even when we are not able to accept the means.

Understanding the people will lead us to the facts.

Hmm. Or not.

As the world forgets about Honduras again, the former President's hopes of returning to power look to be ebbing. Soon the country will be looking to new elections. Hurrah.

Here is an interesting piece about how the Organisation of American States might have managed its diplomacy differently. By suspending Honduras so speedily after the so-called 'coup' took place (the argument goes), the OAS ruled options out and reduced its own freedom of manoeuvre:

The OAS Secretary-General was given 72 hours to find a solution to the Honduran situation. He might just as well have been asked to push a huge boulder up a steep mountain. There was no way it could have been achieved given the high emotion that existed on all sides.

In giving him such a mandate, the OAS General Assembly was clearly pressed into their decision by a group of countries led by Venezuela, Argentina, Nicaragua and Bolivia (the key members of ALBA) who wanted their man, Manuel Zelaya, immediately back in the Presidency whether or not he had been removed in accordance with the Honduran Constitution and law.

As an important aside, let me say in this connection that however legally correct the impeachment of Zelaya may have been, the interim regime wrong-footed itself by having the military remove him from the country.

OAS Deputy Secretary-General Albert Ramdin rightly reminded that Secretary General Insulza acted under the orders of the General Assembly which had defined his role including that he “did not have an order to talk with representatives" of the interim government. What sort of mediation could the OAS expect of its Secretary-General in that context, except to fail?

Diplomacy at its best is subtle and painstaking and maybe invisible, hence unpopular with the public at large who like to see things 'happening'. 

In a situation like this a heavy diplomatic lunge by the OAS aimed at achieving a certain result might work. But it also might not, and in fact both reduce the credibility of outside OAS-sponsored mediators and make the key people involved more stubborn.

Which is what happened.

Then, as more facts appear some capitals move back from getting too 'involved' in something which looks like a diplomatic mess they unwittingly have helped create.

Technique and all that.

Alert readers will notice that I have reorganised the site a little, to make the Search function better and to give greater emphasis to the various excellent services I offer - see the new buttons on the left.

This blogging business takes a lot of time, but generates zero revenue. So I hope that that will change. It must.

The one area I would like to develop is Mediation. I probably have done more top-end Mediation training than anyone else in the UK, building on years of diplomatic mediation-style work eg in the Balkans. But it is not easy to get started professionally as a mediator if one is not where disputes and disagreements and misunderstandings are unfolding (viz in a lawyer's office).

Just this week I have been involved in a business negotiation aimed at finding a better outcome rather than resorting to a litigation jungle. It was interesting to see how a friendly style looking to a positive future rather than dwelling on the rancorous past can keep difficult issues under better control.

The trick is not to try to solve everything, but to reshape the questions and make different parts of a complex problem more manageable. To move from Positions to Interests, as they say in the trade. 

So if anyone out there has a dispute/disagreement or even a problem needing a different look and approach, just press mail@charlescrawford.biz

Or, indeed, if you need your website rewriting, or a speech knocked out, or advice on a CV, or ideas for a PowerPoint presentation, or a draft article/thesis sharpened up. Or whatever.

Go on. Press.

You know you want to.

Another mediation for me looms. I am busy contacting the parties to get things ready for the mediation session itself.

In the UK it takes up to £20,000 to take a not especially complicated case to a final verdict in court.

Just say you are being sued for £50,000 over a business venture which went wrong. Your personal conscience is clear, but you do wonder if your employees might not have been a bit over-zealous and/or misleading in dealing with the customer who is now the plaintiff.

If you fight the case in court and you lose, you'll have to pay your own costs plus some two-thirds of the winner's costs. Not to mention any damages the judge awards.

So if you think that there is a reasonable chance that on the merits you are going to lose, it will pay you to offer at least £10,000 to cut your losses and avoid the costs/hassle of struggling on with the litigation.

On the other hand, a plaintiff too will not enjoy the stress and uncertainty of a protracted legal battle. Even if the odds of winning look overwhelming at 90%, would you go on a train if one in ten trains exploded?

A good mediator is paid by the parties to help them discreetly cut a deal they can both live with, and stop the process before the costs and worry escalate alarmingly for both sides. The earlier the parties accept mediation, the cheaper (and maybe more personally satisfactory) the outcome is likely to be for both of them.

Mediation is often called 'alternative dispute resolution'.

That's the wrong way round. The 'alternative' dispute resolution mechanism of last resort should be litigation, as it is just too expensive and unpredictable.

So, I am available to help you sort out those ghastly disputes, big or small. Hire me.

Even though this website vaunts my status as a qualified Mediator I have not had anything much to say on this subject up to now.

This in part because I am still developing my experience in this fascinating but little understood area. This week I took the CEDR qualifying assessments involving two carefully scrutinised role-play mediations.

The very word 'mediation' sounds just a bit ... soppy. Surely it is not a job for tough guys?

In fact, mediation requires steely discipline and concentration. It basically is all about helping feuding parties to look at the wider picture and stop feuding and cut a deal. This involves letting them blow off steam in a private environment, then cleverly coaxing them to move from Positions to Interests and finally Settlement.

Mediation is Cheap! If the dispute in question is already in the court system, the chances are that the parties are racking up heavy costs which far exceed the costs of any mediation and may not be recovered whatever the eventual expensive outcome.

I watched one mediation a few weeks ago in which the plaintiff and defendant had been arguing to and fro for almost eight years in a row over building works. The costs incurred over that period exceeded the sum needed to settle the matter. Jarndyce is alive and well. 

Parties in litigation tend to dwell slavishly on the headline sum they hope to receive if they win everything they want. They pay much less attention both to what achieving that knockout victory will cost them in financial and stress terms, or to their realistic chances of achieving it. As our ADR course tutor put it, "it sounds good if your lawyer tells you that you have a 90% chance of winning a case in court. But would you want to get on a bus if one in ten exploded?"

Mediation is part of what these days is called 'alternative dispute resolution'. In fact litigation should be the 'alternative' last resort phenomenon. Taking a case to court is little more than getting on a train without knowing where it is going, how long the journey will take, and what the ticket is going to cost.

So, oh world. I am qualified. And raring to go.

Some of you out there must be involved in fatuous disputes which are dragging on expensively.

End the misery. Hire me.