I am delighted to have been appointed as a member to the newly launched HKIAC's Panel of Arbitrators for Financial Services Disputes. The creation of the Panel is a clear indicator of the importance of financial services in Hong Kong and the increasing use of ADR to resolve financial services disputes.
With increased attention on ADR mechanisms following the GFC, financial firms who are unable to resolve disputes through negotiation have been able to consider other options, including PRIME Finance or for consumer disputes the FDRC in Hong Kong. Consideration of ADR for derivatives has been greatly assisted by ISDA's 2013 Arbitration Guide which highlighted the particular benefits of arbitration for financial services disputes which are often cross-border and can be assisted by subject matter expertise.
I have been reading and enjoying “Healing from Infidelity” by Michele Weiner-Davis. Whilst not everyone will experience infidelity in their marriage, Weiner Davis provides valuable tools which anyone can use to address adversity. Over the next few weeks, I will reflect on some of the lessons anyone facing difficulties can use to improve their situation.
Let your hopes, not your hurts shape your future
This quote is from Robert Schuller. When disappointment, loss or betrayal occur, we can focus on what has happened. Excessive rumination on negative emotions associated with the event can prevent healing and responsibility. Instead, we replay the hurts and blame. Whilst it is necessary to process negative events; it is also necessary to move on from them. As Schuller suggests we should not define ourselves by the wrongs we have suffered, instead we should allow our dreams to define our lives. How can this be done practically? Weiner-Davis suggests we can help ourselves by being specific. How does this work?
Moving from the vague to the specific helps to chart a course. Making positive statements to feel better is helpful as a general direction, and this needs to be supported with specific actions that we design and take responsibility for to create improvements.
Last night I attended a seminar on med-arb, a relatively esoteric topic unless you are in the ADR field. Although unusual in HK and Western ADR jurisdictions, the combined use of mediation and arbitration with the same neutrals is not unusual across the border in China. In med-arb, the neutral will commence the arbitration and then break to conduct mediation with the parties seeking a settlement. If this does not result in full settlement, then the remaining issues will be resolved through the determinations of the arbitral panel.
The resistance in HK and Western jurisdictions relates to concerns about how one person can conduct dual processes. If the neutral learns information during the mediation which would not be produced or discoverable in the arbitration how can the neutral ignore this information and make a determination based only on the evidence / arguments made during the arbitral proceedings?
One of the reasons to move to this hybrid is an apparent interest from parties and the Government in supporting mediation where the mediator will advise parties of their "view" on what the outcome would be if the dispute was arbitrated / adjudicated. There may be some issues of semantics as even the most facilitative mediator will create doubt and reality test. However, modern mediators do not typically make a determination. There are reasons for this - the most important of which is the philosophical basis for modern mediation i.e. party self-determination.
From my perspective there are other issues which need to be considered:
Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict -- alternatives to passive or aggressive responses, alternatives to violence.
Dorothy Thompson (1893-1961) American journalist and broadcaster
When will we start telling the truth about negotiation? For many years, much negotiation training has been focused on seeking win-win results. This concept was popularized by Fisher and Ury’s extremely influential Getting to Yes.
The search for a win-win outcome differentiates “Getting to Yes” principled negotiation from distributive negotiation which is usually a zero-sum game i.e. if I win, you will lose. In a principled negotiation, the parties will seek to understand each other’s interests and expand the pie i.e. invent new options for mutual gain.
I recently attended a talk by Professor Michelle LeBarron from the University of British Columbia. She suggested that we need to stop telling parties that they can achieve win-win outcomes. The reason? Even if the parties manage to negotiate a resolution, it is usually more a case of “mostly ok – mostly ok”.
In most negotiations, no party will get 100% of what they want – if they do get 100% the process is probably not a negotiation. Most parties in mediation (which is a facilitated negotiation) will end up achieving some of their own goals and allowing the other party to meet some of their goals. This is why the ‘mostly ok’ description makes sense to me from what I have seen in practice.
But is it true for the parties? We know from developments in neuroscience that we are programmed to experience losses more intensely than gains. It is not uncommon for both parties in mediation to feel taht they have made all the concessions, whilst ignoring any gains.
I think that for many parties the most significant gains are those that will only reveal themselves as they live the agreement. At the point of finalizing the deal, parties are often unable to appreciate the benefits that will accrue over time:
One party said to me some months after he had signed his mediation agreement, that he had not realized “the amount of space in [his] mind that was being used up” by his dispute. That space had become free for his family, his health and his business.
Imagining the future can seem like an impossible task. The hurts and pain of the past and present can make thinking about how things might look in one year, five years or ten years can be a struggle. At a time when parents are working through their separation, their children are not only managing their own response to this family transition, but are still growing and developing. The work of parenting and child development does not pause whilst parents recover their own equilibrium.
In these challenging circumstances, it can help parents to use a parallel parenting structure to manage their ongoing responsibilities to their children. Although agreeing rules is not the same as complying with rules, having an agreed structure in place is a significant benefit. Without structure, it can be impossible for people to imagine how they might move on. The old patterns of their relationship did not work but how can they construct a new pattern?
One of the issues for most separating parents is that for now they are surrounded by uncertainty:
In the midst of the separation process, children still need to be fed, watered and get to school. Parallel parenting can provide a strong basis for parents to manage their parental responsibilities. If parents are able to agree a new paradigm and meet their obligations, parents may even be able to rebuild trust, communication skills and the ability to problem solve. Choosing to try and build a new structure is the first step to moving on. The reality is that the children will continue to need help with homework, will get into scrapes, will have medical issues, etc. etc. Having a structure in place as to how to deal with the realities of parenting can help both parents to parent without having to re-litigate the past.
There are multiple variations in the way that parents can design how their co-parental team will operate. Separating parents need to be supported to develop rules which will work for their children and their new separated family.
One of the key principles of parallel parenting is that instead of having unspoken rules, the co-parents put in place explicit and clear rules to manage their relationship. For whatever reason, the old patterns of behaviour did not work for the family and helping co-parents create new patterns of behaviour is a critical part of setting up effective parallel parenting.
Rules may include:
The list goes on. Each family needs to consider their circumstances and what rules are needed for them. For some families, the flashpoint for conflict is communication (e.g. texts), for other families the flashpoint will be attendance at school events. A family mediator will work with the parents to tailor rules which work for their family circumstances.
It can seem very strange and awkward to put in place ground rules when people have been in relationship for a long time, however, moving forward requires parents to change to new patterns for interacting which can form the basis for parallel co-parenting. Research would indicate that a third of separated parents can work co-operatively and that a third remain conflicted. For the other third of parents, parallel can provide a space for mutual respect and appropriate behavior.
Respect is a key principle for parallel parenting. Whilst parents may have different approaches or different rules, a key component of parallel parenting is that one parent does not undermine the other parent. For example, if Parent A believes bed-time winding down begins with a story and Parent B believes that it should start with a bath, neither parent should criticize the other.
Each parent is responsible for doing the best they can with the children when they are in their care. It is not unusual for parents to agree some common rules for younger children (e.g. bedtime) and for older children (e.g. electronic usage). This can assist each parent to present to the children as a co-parental team. However, there will also be differences between each parent’s home rules. This is the essence of the work by Isolina Ricci (Mom’s House Dad’s House).
Next post, putting it all together and using parallel parenting as means of moving forward.
Why do many separated parents use parallel parenting? Because at a time when the adult relationship is ending, parallel parenting can provide a foundation for the co-parental team to continue functioning for the benefit of the children. Because parallel parenting provides a space for parents to acknowledge the difficulties and challenges inherent in their transition through separation and yet to be available to co-parent without open warfare.
What are the basic principles that can guide co-parents to set up parallel co-parenting?
How do parents disengage from the battle?
In Hong Kong, family mediators try and help parents to focus on their children when making decisions about their children’s arrangements. By sharing research about how to enhance protective factors for children in separating families, family mediators can help to redirect the parents away from focusing on their adult relationship and towards their co-parental responsibilities.
Another casualty of separation is often whatever ability there was to problem solve or communicate. Separating parents may find it difficult to communicate and to problem solve together. However, constructive separation requires both good problem solving and clear communication.
In addition, whatever trust may have bound a couple together is usually gone. Understanding that a lack of trust and respect is often a part of this process can help parents to refocus on how to make things work for their children as opposed to winning a battle.
The patterns of behaviour which have led to the separation need to be replaced, but consciously deciding to disengage from conflict is the first step. Next post what new patterns can help separating parents to form a new co-parental team?