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06 Nov 2016

This Week In Mediation – Episode 1

By Nadja Alexander & Associates

twim

A new Mediation broadcast, presented by Professor Nadja Alexander and Aled Davies, has been launched by Mediator Academy airing on every Monday.

In the first broadcast of This Week In Mediation, we look at a round up of events that took place during Mediation Awareness Week in the UK and Ireland. We talk to the President of the MII to get the inside track on the draft Mediation Bill as well as the new German Mediation Accreditation Regulation.

Also on the show we examine a case from the Indian High Court on whether criminal cases are suitable for mediation. As the conflict in Syria continues to escalate we look at the role of mediation and negotiation in reaching peace agreements and what mediators can learn from these processes to improve their own mediation practice. All this and more coming up in this week’s show.

Please click here to watch the show.

15 Sep 2016

The Regulatory Robustness Rating in Practice: Part 3

By Nadja Alexander & Associates

Yes, here it is. The final part of the Regulatory Robustness Rating (RRR) trilogy. For those of you who are just picking up the RRR topic for the first time, you might like to check out Part 1 andPart 2 first.

Three-gold-stars

You will recall that the aim of the Rating System is to offer an indication of the regulatory robustness of a jurisdiction in relation to cross-border mediation. It is not an indicator of the popularity of mediation or the amount of practice in a jurisdiction. The RRR takes the perspective of mediation users, i.e. what is likely to be important for parties and their legal advisers in assessing the how mediation is regulated in a given country.

In this post, Part 3, I will focus on apply the RRR System with the help of fellow blogger, Sabine Walsh. We will apply the System to Ireland. In other words, we will examine the regulatory robustness of cross-border mediation in Ireland.

You will recall from Part 2, that there are 12 criteria to consider. For each criterion in awarded a star rating of up to five stars. However because not all criteria are equal from a user’s perspective, they are weighted. Each criterion has a weighting of either one, two or three with three indicating that the criterion usually holds greater importance from a user perspective.

Before we get to the actual Regulatory Robustness Rating, let’s start with a few comments about cross-border mediation in Ireland.

Ireland is an excellent example of a jurisdiction where regulation of mediation is having to catch up with practice. A variety of factors including the impact of the economic crisis and a gradual but fundamental change in dispute resolution culture have contributed to the increased use of mediation in a range of different forms of disputes. The courts, in particular, have played a significant role in this development, enthusiastically using what few regulatory powers they have to divert cases into mediation and generally creating an environment conducive to mediation.

These developments have all taken place in the absence of a coherent comprehensive regulatory framework for mediation, or perhaps in the shadow of the promised reforms which have been pending for a number of years now. The RRR highlights the strength of areas such as mediation infrastructure and services, the relationship of the courts with mediation services and the court’s positive attitude to mediation. Regulatory areas desiring high levels of flexibility such as insider-insider confidentiality also score highly on the star scores. However in terms of transparency and clarity of content of mediation laws, we see a different story. The laws on insider-outsider and insider court confidentiality suffer from a lack of certainty and predictability. While the long awaited Mediation Bill, if it is enacted, will certainly increase the regulatory robustness rating of Ireland’s framework, it will be interesting to see whether it has the same impact on boosting the use of mediation as the change in culture, and the tireless efforts of numerous bodies and institutions to raise awareness of mediation have.

The RRR for Ireland is set out in the table below. You will notice that there are four columns. The first column identifies the criterion. The second column describes the application of the criterion in the given jurisdiction. This is a very brief and basic description that enables the RRR to be presented in a tabular form so that readers can benefit from an overview of the jurisdiction’s regulatory framework. The third column shows the star rating (from 1 to 5) and also indicates the weighting given to the criterion. The fourth and final column multiplies the star score and the weighting to come up with the RRR for that criterion. This way readers can see how the various calculations have been made. Should the situation arise where users place particular importance on a certain criterion and less on others, they are able to adjust the weighting to suit their needs and this will give them an ultimate rating that better reflects their needs and interests.

You will note that there is no single final score. There is a good reason for this. If you conducted the RRR analysis with say four countries and gave each an ultimate rating, then less attention would be paid to the individual criteria. Further, the RRR would turn into a competition and countries would be ranked by their overall score only. The RRR is not a competition. It’s a tool for analysis and it’s important to look at the individual criteria and the star scores and weightings allocated to each one. Then if you are still interested in finding out more about that country, you have a framework for doing so, and you know what to look for.

So let’s take a look at Ireland.

RRR

Remember the RRR System offers an indication not a comprehensive analysis. It gives users a helpful starting point for finding and analysing the law applicable to cross-border mediation in any jurisdiction.

For example, if you are a lawyer looking to identify suitable laws for your mediation clause, you might use the RRR System to identify three jurisdictions with high regulatory robustness ratings. The RRR System should not be the only indicator in making an informed choice about the governing law and jurisdiction. But it might provide a starting point for you to do some further research to look more closely at these jurisdictions for the purposes of identifying governing law and jurisdiction for your mediation clause.

29 Aug 2016

Michelin II or the Regulatory Robustness Rating: Part 2

By Nadja Alexander & Associates

What makes good mediation law?

Three-gold-stars

For those of you who have been following the plot, you will recognise this as the second in a series of three posts introducing what is now called the RRR — Regulatory Robustness Rating for mediation jurisdictions. You may also notice the name change. Yes, what originated as the Mediation Friendly Star System has transformed into the Regulatory Robustness Rating. Why? Simply because it’s more accurate. I have amended my previous post to reflect this new language and there is also a more detailed explanation of the reasons to be found there.

Now, to Part 2 of the Triology.

Previously, I introduced the 12 criteria upon which the RRR System is based. Together they form the foundations of the RRR System and inform the ratings given to each jurisdiction. The purpose of this post is to explain the thinking, assumptions and value judgments underpinning each criterion. After all, the rating indicates the extent to which a given jurisdiction offers a robust regulatory regime for cross-border mediation, or not.

Each criterion is given a rating of up to five stars, five being the highest score possible and one being the lowest. In addition, the criteria are weighted according to their importance from a user perspective. The weighting scale is one to three, with the higher number providing a higher weight. So if the ranking of each category is one to five, then a ranking of five:
• on weighting of three would result in 15 points;
• on a weighting of two would result in 10 points;
• on a weighting of one would result in five points.

I have set out the RRR criteria, weightings and underlying principles in tabular form for ease of reference. So when you click on the link below you will get a pdf with the RRR in tabular form.

Regulatory Robustness Rating for Mediation

The next and final post in the RRR triology will deal with how to apply the Regulatory Robustness Rating to any legal jurisdiction. Watch out for this next week.

15 Jan 2016

Negotiation and Memory – Kluwer Mediation Blog

By Nadja Alexander & Associates

Is it true that as we get older, we tend to forget things more easily? Or is it that some things are just less important?

As negotiators and mediators, we often deal with complex layers of information that appear all too much for any one person to recall. So we enter the negotiation room burdened with our big folders or sporting our slim iPads laden with mega data containing all the information that we might possibly need. I wonder though, if we sometimes rely too much on the documents when we could be structuring and presenting information and issues in ways that would maximise the negotiation experience — for everyone.

Let’s start with an overview of memory. From my reading there seem to be three types of memory: immediate, short term and long term. Immediate memory can take in a massive amount of information, but only for a couple of seconds. Some of this information passes into short-term memory, which works as a kind of central processor for the brain. We can think of it as our working memory. Certain information from our short-term memory will eventually establish itself in our long-term memory.

Of course some male readers might be brave enough to suggest that much conflict would be prevented if information destined for a woman’s immediate memory remained there rather than finding its way into her long-term memory – but let’s not go there today. I want to focus on the short term memory and how we can make the most use of it in negotiation.

The capacity of our Short Term Memory has been the subject of significant neurological and psychological research over the last 60 years.

The first seminal study on Short Term Memory capacity was conducted by Millar (1956). He famously argued that our Short Term Memory can only hold 7 (+/– 2) pieces or ‘chunks’ of information at any given time, and so was coined the “Magical number 7” for Short Term Memory. While Millar’s was an early seminal study in the field, more recent research has expanded on these early findings. Recent studies continue to show that our Short Term Memories do have a limited capacity, and that ‘chunking’ is critical to the amount of information we can hold in in our Short Term Memory. So this means that information needs to be presented in chunks both verbally and visually with the aim that negotiators at the table will be able to recall the chunks, rather than the detail. (You can look up your suitably-chunked iPad for detail).
At the same time, these studies show a lot of individual difference in the amount and type of information that we can retain.

magic number 7

For example, some researchers posit that Short Term Memory is more likely to be the ‘Magical number 4’ than 7, and that other processes are important in influencing our Short Term Memory limits. Factors that can affect our Short Term Memory abilities may include:
• our level of rehearsal of the information in our Short Term Memory (e.g. practising in front of the mirror before going into a negotiation),
• our level of attention,
• the amount of time elapsed before we must recall the information,
• the amount of interference we encounter, and
• our memories’ overall ability to recall information when needed.
Further, certain types of information may be easier than others to ‘chunk’ and so seemingly increase their Short Term Memory capacity.

From a negotiation standpoint, the capacity of our Short Term Memory is important as this information is used by our executive functions for decision making. So if we are unable to take in enough, or the right kinds of, information, this will have a direct impact on the quality of decisions that we make.

A negotiator’s initial psychological state is important as certain negative states can reduce the amount of information we are able to hold in our Short Term Memory. For example, anxious individuals absorb and recall less information in our Short Term Memory then non-anxious individuals. This means if negotiators are anxious at the commencement of the negotiation process, they will be more likely to miss key information or more regularly need information to be repeated (particularly following breaks) as they may have trouble holding and recalling multiple pieces of information at any given time. Essentially, the calmer participants feel during negotiation, the more likely they are to absorb the required information. If you notice that some parties seem to be mis-recalling or missing key information, it could be related to their Short Term Memory and the way in which they process information.

The good news is that neuroscientific research suggests that we can influence how our Short Term Memory serves us as negotiators. Through pre-negotiation stress-reducing and focus-building mindfulness activities, we can reduce sources of interference and raise our magic number. Here it’s important to pay attention to how much information we can hold at any given time and whether we have a preference for how we like to receive information.

For example, when someone reads a news story aloud to you, do you find yourself asking to read it afterwards? If so, you may prefer to ‘chunk’ visual information. How do you cope with ‘interference’ during an actual negotiation such as interruptions, breaks, managing the process while also retaining and using key information? Recently I attended a negotiation with my 14 month old daughter in tow. although she was well-behaved (by baby standards, that is) one of the lawyers at the table was completely thrown. (And, no it wasn’t a tactic, just an unavoidable situation.) So, depending upon your Short Term Memory strengths and weaknesses, you may need to adjust aspects the negotiation process. For example, you may choose to use checklists, note-taking, visualisations or you may ask to sit far away from the baby.

Consider taking steps to accommodate different communication preferences in your negotiations. Think about using multi-modal methods of communication such as visual and verbal summaries and physically walking around the proposed site of your join venture development. This will help all negotiators to better absorb, process and understand information. Also keep breaks relatively short so as not to ‘interfere’ with the effective communication of key information from the session.

For original article, please click here.

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