Agatha Christie, borrowed from Omar Khayyam for the title, The Moving Finger.  In his famous Rubiayat, Khayyam ponders the truth that time moves on and we cannot call it back or erase what has happened (Verse 51).  In her book, Christie explores the impact of a poison pen writer in a small village.  Needless to say the letters are not the only subject matter of Miss Marple's investigation. In fact, the letters are a diversion to attract attention away from the real crimes. Miss Marple sees beyond the words.

In conflict, and in the heat of anger, words can be weapons.  We have all done it.  The red mist descends and before we realise it, we have said something hurtful and cruel.  We have made a threat, the closer to a real fear the better.  If we are lucky then these words are forgiven or forgotten and our relationship continues.  However, if we are in an ongoing conflict or in a separation then these words can come back to haunt us.

I can recall many mediations where the angry words spoken by one party are used to justify the fears or positions of the other party.  It may have taken a microsecond for the words to come out of our mouths, but the tail is long. 

The reality is that we are all capable of saying terrible things when we are angry.  As humans we need to acknowledge that whilst words are important, we are all capable of speaking without thinking. 

As Miss Marple and Omar Khayyam know we cannot go back in time to change them, we can only change things going forward.  We cannot ask people to trust us, we can only show them through our actions that trust can be rebuilt. 

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The human brain is a wonder.  One of the downsides of our human brains is that we are hard wired to focus on the negative and to focus on loss.  It is understandable.  In the days when we had to fight for survival, we needed to focus on things that were dangerous or worrying.  You might enjoy the warmth of the sun after a long winter but it wasn’t going to mean the difference between life and death.
 
This inherent bias now serves us poorly when we are in conflict. We focus on the losses to the exclusion of gains. In MRIs, our brains light up like Vegas when we feel that we have lost something, even if that loss is illusory. We struggle to let things go and recite endlessly the wrongs we have suffered. While this may be justified, it makes for a poor negotiation strategy.
 
I have seen people in mediation argue passionately for a specific outcome and then when the other side agrees, they move to the next outcome they desire.  We need to take a moment and enjoy the win.  We need to pause and express gratitude for the agreement.  
 
People often say, “why should I say thank you, this is what I am entitled to”. The reason is simple, because you are in a negotiation. In negotiation, you need to give to get.  If you want to get something, this is easier if you can acknowledge the other person.  The chances are that they do not want to give up this outcome, but they are willing to do so for another more important outcome to them. Or, the mediator in me believes they may have listened to the underlying interests and be trying to meet them. Either way, whether this is a strategic move or a genuine intention, acknowledgement of the win, leads to better outcomes.

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: 
 

• what has been gained, 
• to list the items which meet their self-identified needs
• to highlight what the alternative to a negotiated agreement will look like e.g. next steps / process

 
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?

• a mediated settlement agreement ("MSA") is presented to the court of a signatory country then the court is required to recognise and enforce the MSA
• the MSA must be the result of a mediation - although the wording is broad and inclusive
• the dispute must be international e.g. each party has their place of business in a different country
• the dispute must be commercial 
• the MSA should be in writing; signed by the parties; mediation confirmation and meet documentary requirements of the Convention.

Arguably this is the biggest thing to happen to commercial mediation since whiteboards were invented. 

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.