In life we can be faced with what seems like an impossible task, however, our brains reveal that we do such impossible things as a matter of course. When in conflict, people can feel that working with “the other side” in future is an impossibility. “How can I forget ‘X’?” However, we have evolved to hold two contradictory ideas in our head at the same time.
When we see an optical illusion our visual processing behaves as it is designed to and believes the trick (the Müller-Lyer Illusion). Our eyes tell us that the parallel lines are of different lengths.
When the basis of the illusion is explained to us, our conscious, rational mind can comprehend the underlying reason for our eyes being deceived. We interpret the visual information on the basis of our previous experience. With the rational understanding that the lines are of equal length we can look again at the illusion.
However, when we return to the illusion, we experience the dissonance of experiencing the illusion again and at the same time we know that we are being tricked. We are able to hold the contradiction between the illusion and the reality in our mind simultaneously.
In the same way, parties locked in a dispute may struggle with their ability to:
The truth is our brains are equipped to hold such contradictory ideas in place at the same time. Doing so enables us to move forward with people even when we feel this should be impossible. Whether this requires us to try and co-parent or run a business together, the challenge is real, however, the feeling of impossibility is an illusion.
The International Survey of Family Law 2018 is about to launch. I was honoured to contribute the Hong Kong chapter. The Hong Kong chapter looks at challenges for families and practitioners arising from the lack of innovation in our legislation. This has necessitated invention by judges, lawyers and mediators.
The Survey is the annual review of the International Society of Family Law. This year's survey contains chapters covering topical issues ranging from legislation to customary law to reproductive technology.
Copies are available for purchase from Intersentia.
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.