You do not stumble over a mountain but you do over a stone
There is a point in some negotiations when a party will decide that this is the hill on which they will fight the final battle. They may have reached agreement on a myriad of issues but this one is “a principle” or “so unjust” that they are willing to walk away from the whole agreement if they do not get what they want on this one issue.
Often these parties have worked extremely hard and are at the end of their energy and endurance. It is critical at this stage for parties to take a moment and consider the entirety of the negotiation. It is helpful for parties to remember:
For me, this proverb rings true when I see parties who have overcome significant challenges and have climbed the mountain, only to trip over a stone in the path. Staying focused at this stage can help parties to keep sight of their goals and to side step that last stone.
On 7 August 54 countries will meet in Singapore to sign the UNCITRAL Singapore Convention on International Agreements resulting from Mediation. Once three countries have signed the Convention it will be available for ratification.
At the National Mediation Conference in Canberra earlier this year, I suggested that this could be a Big Bang for mediation in the same way that the New York Convention changed the landscape for arbitration.
Many practitioners argue that the credibility given to mediation by the Convention should encourage parties to mediate their commercial disputes.
What are the key points?
For further analysis of the potential impact, please refer to my upcoming article in the Australasian Dispute Resolution Journal on the Singapore Convention based on my NMC paper.
Whether, people are in family mediation or employment mediation or commercial mediation, they have probably seen trust erode. All the reassuring words in the world cannot rebuild trust. Maybe you don't need to. Maybe the relationship is over and you are able to walk away from that particular burning bridge.
However, if you have an ongoing relationship (co-parenting / employment / commercial arrangements, etc.) then you will need to address the loss or deterioration of trust. If we accept that words are not enough to rebuild that bridge - how do you even start?
Rebuilding trust is a process and it may take months or years. The first steps to rebuilding trust can be taken in the mediation itself. A key way for people to address the loss of trust in mediation is through transparency. Disclosure of information relevant to the mediation can create the conditions in which trust can start to be rebuilt. This can start to challenge the narrative that the untrustworthy other side is hiding something. Transparency is a beginning but it can be a powerful first step.