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Jane Cooksey

Hard Wired Prejudice

HARD WIRED PREJUDICE

Scientific research has shown that the human brain responds more strongly to information about groups of people portrayed unfavourably.  This suggests the negative depiction of ethnic or religious minorities in the media can add to prejudice.

Neuroscientist, Hugo Spiers of University College London, points out how negative stories stand out and how news is full of what we dislike.  If someone from a stereotyped bad group of people does something normally pleasant and normally favoured, they are assumed to be doing it for some other purpose as our brains cannot credit them.

Brain scans of people looking at pictures of groups of people deemed as good or bad, taking actions that the watcher thought “good” or “bad” showed that the negative snippets about the “bad” group became deemed as more and more negative.  More so than if the good group did similar “bad” things.

This is the functioning within the brain that shows implicit bias developing into prejudice.

See http://www.mitpressjournals.org/doi/pdf/10.1162/jocn_a_01056

What is the answer?  We believe it is necessary to actively check oneself and any other being to question assumptions about any other person and always make a humble enquiry.

No Fester Zone

We like the Academy of Chief Executives concept of No Fester Zone:

Conflict: Deal with it!

– By Andrew B Morris

  1. The Academy has a term called a ‘NO FESTER ZONE’meaning that as soon as a potential misunderstanding emerges, it is tackled immediately. If it’s allowed to fester it will just grow and become a bigger problem to deal with.
  2. AVOID JUDGEMENT: If you have an issue with someone, sit down in a quiet space and present the facts to them in a non-confrontational manner, starting with what’s working well and then moving onto what isn’t. It’s critical to remain non-judgemental, stating how you’re feeling first and then supporting this with the facts of what’s occurred as you see them. For example: “I’m feeling confused and frustrated… because I don’t understand the unusual behaviour you displayed at the sales meeting.”
  3. LISTEN AND EMPATHISE: Allow them to respond, without interruption, putting yourself in their shoes. Ask open questions so they don’t become defensive. This way you can start to get to the real heart of the problem.
  4. KEEP HOLD OF YOUR VALUES: Remind yourselves of the organisation’s values and expected cultural behaviours to reach a solution, compromising if necessary, without losing sight of the outcome you’re seeking. Make it a joint decision.
  5. BE CLEAR ABOUT THE OUTCOME: Replay the agreed action and agree to review this at a time and place that suits both parties. BUT be clear that if the same situation reoccurs there will be consequences.

More mediation needed in a “perfect storm of financial difficulties” – Lord Neuberger

The president of the Supreme Court has tentatively thrown his support behind extending compulsory mediation to smaller civil cases. Lord Neuberger, in a speech entitled ‘a view from on high’, praised mediation for being quicker, cheaper, less stressful and less time-consuming than litigation. He also said potential outcomes were more flexible and more likely to leave both parties emerging as ‘winners’.

Due to the benefits of mediation he argued that there is ‘a lot of be said’ for extending compulsory mediation information and assessment meetings (MIAM), which the Ministry of Justice introduced last spring, to smaller civil claims. The MIAM scheme, which is often free, currently has to be used before parties can bring family proceedings. Neuberger also advocated extending mediation to contract-based disputes such as possession claims based on nuisance and annoyance, adding that some tenancy agreements could include a clause requiring mediation. But he said that more data was needed on mediation to fully identify what types of cases are likely to mediate successfully.

Neuberger noted that there are some disadvantages to mediation, including a perceived lack of credibility. ‘The right of access to courts is fundamental and, like all rights, it has to be genuinely available to all. And so mediation must not be invoked and promoted as if it was always an improved substitute for litigation,’ he said. But he added that despite this ‘we can and should be pretty uninhibited’ about supporting the idea of mediation in civil and family disputes.

In many civil and family cases proper litigation would lead to costs and time being disproportionate to the value of the case, he said.

Neuberger’s comments come against the backdrop of what he calls an ‘almost perfect storm of financial difficulties’ that could deprive ordinary people from access to justice.

Our thanks to Chloe Smith of the Gazette for this article.

When the other side refuse to mediate, what can you do?

No mediator can authorise the breaking of the confidentiality of mediation.  It is sacred to the professionalism of being impartial, independent and neutral as well as to allow the parties to speak without fear of any comeback.  It is necessary for us to remain in compliance with professional standards set by the Ministry of Justice, the Civil Mediation Council and the European Code of Conduct for Mediators.

However, we can give you information where information is not legal advice and on the assumption that information that is out there on the internet is just that, information not legal advice, we can refer you to case law or articles.

The court has an overriding interest in justice and if it deems that confidentiality in mediation needs to be overridden for the justice of the case, it may do so.  Note that this is rare but possible as a result of a case called:

Barden, Michael Kieran -v- Commodities Research Unit International (Holdings) Limited, CRU Strategies Limited, CRU International Limited and CRU Publishing Limited – Chancery Division – [2013] EWHC 1633 (Ch)

In addition as a result of Court Procedural Rules being tested in the Court of Appeal, the court can consider costs sanctions for unreasonable refusal to mediate to include failure to reply to a request to mediate as a result of a case called:

PGF II SA -v- OMFS Company –  Court of Appeal – [2013] EWCA Civ 1288

So you can tell the Judge that the other side refused to mediate and that that refusal caused you more costs, time, angst and wait for the Judge to decide if it is fair and reasonable to take that into account in any costs you ask for.

It is at times annoying that the mediation profession has no greater powers to speak to the Court but in the light of our need to be recognised as a proper, full and separate profession more important that we uphold this standard that WE WILL NOT BREAK THE CONFIDENTIALITY OF MEDIATION FOR ANYONE unless the court orders us to do so.

 

Costs consequences of not mediating

Cases about the question of unreasonable refusal to mediate have shown that it is not safe for any litigant or their lawyers not to consider any suggestion of mediation from the other side. This is separate from the need to do substantive risk assessments throughout litigation to look at the down sides of continuing, particularly on costs, compared to a useful, peaceful and immediate outcome gained through mediation.

See PGF II SA v OMFS Company 1 Ltd [2013], Garritt-Critchley and Others v Ronnan and Solarpower PV Limited [2014] and Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd (No 2) [2014].

Mediate instead

Many small businesses will be doubtful about issuing proceedings from today as court fees hugely increase to 5% of the damages between £10,000 and £200,000. So court fees will start at £500 for a claim of £10,000 and go up to £10,000 for a claim of £200,000 and continue thereafter at the same.  Can you afford not to mediate when mediation fees are likely to be considerably less than the starting court fee and be a lot cheaper, quicker and efficient?  In addition, you might well come out of a mediation with BSqM feeling like you are competent, practical and realistic business people who get the job done of getting conflict solved in a matter of hours with the benefit of our highly professional team of accredited mediators who have such a wealth of experience.

Toxic disputes?

Compulsory Mediation for toxic disputes, particularly neighbours and boundaries, is being discussed.

A Conservative MP, Charlie Elphicke has pledged to continue his campaign for compulsory mediation in boundary disputes although the idea was rejected by the government last month. He believes disputes between neighbours should go to mandatory mediation

The Ministry of Justice said it intended to encourage greater use of mediation but would not make it compulsory for all litigants.

Last month three Court of Appeal judges made public their anger at costs over £500,000 incurred over a right of way.

BSqM is often mediating cases where the costs have become out of all proportion to the value of the claim whether it is boundaries, partnerships or simple contract.

What can we say that would help you to come to mediation sooner, and particularly where emotion and poor communication troubles are hindering sensible attempts at resolution?

Mediate to avoid court fees?

The review of court fees currently being considered includes charging a court fee to commence proceedings based on 5% of the amount claimed which would apply to claims above £10,000 up to a maximum fee of £10,000 (i.e. on a claim of £200,000).  So for SMES and any small business chasing debts through court, it will be much more expensive.  The Lord Chief Justice said this would have a disproportionate impact on SME’s.  It is just another expense small businesses may be expected to suffer.

The Law Society President is also trying to make us aware of the implications by replying to an article in the Independent:

Court fees hike will hit small businesses

12 February 2015

The Independent

Your article on small businesses being driven to bankruptcy (11 February) is timely, as the number of insolvencies could well rise when the government increases some court fees by 600 per cent for recovering debt.

Small- and medium-sized businesses use courts to recover invoices from larger companies amounting to hundreds of thousands of pounds. They do not have the funds to pay court fees of up to £10,000 when their cash flow and overdraft are stretched.

We have surveyed our member solicitors. Their overwhelming view is that small- and medium-sized businesses may fold if debtors fail to pay monies due, knowing that they cannot afford to seek redress through the courts.

The UK prides itself on its entrepreneurs, but the hikes in court fees could cause problems for the small- and medium-sized companies that play a vital role in our economic recovery.

In the 800th anniversary year of Magna Carta, a restriction on access to justice means an ineffective rule of law, affecting both the business community and us all.

Andrew Caplen, Law Society president

 

OF COURSE, WE THINK MEDIATION MAY HAVE AN EASIER, CHEAPER AND QUICKER OUTCOME

The dangers of justification

When our beliefs are threatened by facts, we turn to unfalsifiable justifications

On being told physics could undermine religious claims, believers said faith was more about living a moral life. It’s great to have facts on your side. The fundamentalist is delighted by the archaeological find that tallies with scripture, just as the atheist seizes on the evidence that contradicts it. But when the evidence goes against us, we’re less likely to change a belief than to criticise the validity or provenance of the evidence. Now, research suggests that the mere prospect of a factual threat leads us to downplay how much our belief depends on such evidence at all. We become attracted to other, less falsifiable reasons for believing.

Justin Friesen and his colleagues conducted a series of studies each with a hundred or more participants. The first presented participants with a summary statement from a conference on science and God. When it suggested that science could one day settle the question of God’s existence, religious participants wavered in their religious conviction, rating it significantly lower than those told that science was not armed to answer such questions. The very possibility that the religious belief was falsifiable made it vulnerable.

A subsequent study presented the discovery of the Higgs Boson as either a threat to or unlikely to affect matters of religion. Asked what reasons underpinned their belief, religious participants gave more importance to unfalsifiable statements such as “living a moral life would be impossible without God” when told the particle was a threat, and relatively less to evidence-linked statements such as  “historical and archaeological evidence shows how God intervened in the world.”

This effect wasn’t restricted to religious belief. In another study, supporters and opponents of same-sex marriage were shown data on life outcomes of children raised by same-sex couples; by presenting these outcomes as either positive or troubled, participants were exposed to data that either supported or undermined their position. When the facts were on their side, they rated the issues of same-sex marriage and child-rearing as a matter for evidence to decide; when the facts were against them, they saw it as more a matter of opinion.

The authors speculate that this tendency to revert to unfalsifiable justifications may mean that many beliefs, over time, shear off their evidential component and become increasingly unchallengeable. But they also note that unfalsifiability may have important psychological value, for instance in making inviolable beliefs such as “love is real” or “genocide is wrong”, whose compromise could otherwise be deeply distressing and disorientating.  Cherish or bemoan it, our belief systems are laced with unfalsifiable aspects that won’t be budged by evidence alone.

 

Thank you to: ResearchBlogging.org and Friesen, J., Campbell, T., & Kay, A. (2014). The Psychological Advantage of Unfalsifiability: The Appeal of Untestable Religious and Political Ideologies. Journal of Personality and Social Psychology DOI: 10.1037/pspp0000018

ODR

Online and Alternative Dispute Resolution – what it means for Businesses in 2015

A Peaceful New Year?

The EU is planning 2015 will bring peace to businesses and consumers they deal with. This is in the shape of new laws that will come into effect on 9 July 2015 . This can only be good news – it is estimated that in 2012 out of 6.4 million complaints made by consumers to business, almost a third were unresolved. Feedback from consumers who have used Alternative Dispute Resolution (“ADR”) tends to be positive, and a recent survey indicates 82% of businesses that have used ADR would use it again.

What do the new laws require businesses to do?

From July 2015, if there is an unresolved dispute between a business and a consumer, the business must provide information about an appropriate certified ADR provider to the consumer. This can most easily be done via the website.

If the business belongs to a sector with mandatory ADR schemes it will have to advise consumers that their dispute can be referred to the relevant ADR body. If the business is not obliged to use an ADR provider, they must advise the consumer whether or not they will use ADR to attempt to settle the dispute. In practice consumers may prefer to buy from a business offering this after care service.

Can a consumer force a business to use ADR or a particular ADR provider?

No, unless the business is in a sector where the use of ADR is already mandatory.

Who will pay for the ADR?

The business itself, or its trade association will meet the cost.

Who will oversee this?

The Government will appoint Sector Regulators. The Trading Standards Institute (TSI) will oversee ADR schemes in the non-regulated sectors.
Are there any exemptions?
Yes, healthcare and “non-economic services” performed by a member state.

What about Online Dispute Resolution (“ODR”)?

By July 2015 the Government must have set up an ODR contact point in preparation for an ODR platform to take effect from 16 January 2016. This ODR platform will channel contractual disputes arising from an online transaction to a relevant ADR scheme. It is expected that electronic case management tools and video conferencing facilities such as Zoom and Skype will be used with increasing frequency as cost and time efficient methods of ADR.

Posted by Rebecca Attree, Mediator and Solicitor