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Hats off to AVAAZ

Avaaz have asked us to sign a petition that we adhere to three principles which are:

Show kindness and respect

Strive for wisdom, and

Practice gratitude.

It does not matter who you are, where you come from or what cultures you hold dear, the entire human race holds these three principles dear. Does anyone disagree?

Je Suis Charlie

In the words of Marshall Rosenberg, every act we find ourselves judging another for is simply a “tragic expression of an unmet need”.

So what is the fundamental terrorist actually needing? We might guess at it:

Acceptance, acknowledgement, respect, trust, inclusion, love, healing, understanding, compassion, ease etc.

Why are these terrorists so ill at ease in our society that they seek to destroy it? How do we deal with their deep pain and alienation?

When someone hates another it is usually because they hate themselves. How might we create change from hate to love?

Would any terrorist reading this tell us what they really need? Now that would require real courage. The courage to pick up a pen rather than a gun and speak to how they really are.

The challenge is that saying what you really feel and need is so much more courageous than anonymously picking up a gun and shooting people.


ODR is the way of the future for many traders and consumers. Cross border EU Directive comes into effect in July this year and the EU portal in January 2016. Are you ready? Do you need to call us about your requirements.

Judicial Approval of Mediation

Judicial Approval of Mediation
Many will be aware of the judgement made by Mr Justice Norris in a Boundary Dispute in October 2014. In particular see paragraphs 21 to 25.
In paragraph 22 Mr Justice Norris echoes the words of Sir Alan Ward in Oliver v Symons [2012] EWCA Civ 267:
“I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”
Also see the whole of paragraph 24 where Mr Justice Norris starts ‘I think it is no longer enough to leave parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken.’
Thank you to the Civil Mediation Council for this reminder

Thank you to the Civil Mediation Council for this reminder

It takes courage to actively listen

'Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen'.  Winston Churchill

Listening skills

One of the first skills a mediator learns is to actively listen, by which we mean taking out all our mind clutter of judgment, what they might do, what we might tell them, what we long to share, who we think was to blame etc and simply listen without thinking, simply be there, sitting in compassion, because if we gift our presence to another, it will simply by its silence enable them to sort things out for themselves.  So active listening takes trust, trusting ourselves to keep ourselves away from interference and trusting that they, in however a horrible place of conflict they are, will in time find their way because we trust that they are capable of so doing if we only stay with them as they speak.

Its a hard thing to do when we are so overflowing with all our stuff as stated by Mark Nepo:

"But how do we listen?
It is so simple and so hard. So obvious to begin and so elusive to maintain.
 In this lies the vitality of deep listening.
To keep beginning. Over and over.
To keep emptying and opening. And simply to keep listening.
For to listen is to continually give up all expectation and to give our attention, completely and freshly, to what is before us, not really knowing what we will hear or what that will mean.
In the practice of our days, to listen is to lean in, softly,
with a willingness to be changed by what we hear."
  – Mark Nepo,
from EXQUISITE RISK – Daring to Live an Authentic Life

CMC to become a charity

The Civil Mediation Council, the body that ensures registered panels of mediators are appropriately set up with accredited mediators and annual flying hours of training and mediating, voted at its EGM on 1 May 2014 to become a charitable organization.  A good decision.

Why conflict is so threatening?

If we look at Social Identity Theory as created by Henry Tajfel in 1979 it helps to see why people are so threatened by conflict as it touches on our social identity, self esteem and self image.

Tajfel outlined his theory as this.
A person’s sense of who they are is based on their group membership.  It's an important part of pride and esteem.  To increase our self image we enhance the status of the group we belong to.  We also increase our self image by discriminating and holding prejudicial views about the group we don’t belong to.  We create a mentality of “them” and “us”, or "in group", the one we are in and "out group", the one they are in.
It’s a normal cognitive process to group things together to reduce decision time and effort. It is how our brain works.  After that, we exaggerate the similarities within our group and the differences of members in the outside group and reinforce the alienation.
Tajfel and Turner in 1979 said that we have a real, true and unchangeable brain process to do this.  It’s bound to happen even if we are conscious of it.
It takes 3 stages:
Social categorisation – we recognise difference (it’s how our brain alerts us)
Social identification   – we put it into a pre-learned difference ID
Social comparison   – we reinforce the difference and start a process of comparison that adds to separation

Mediators often call this the "demonisation" of our opponent.  Thomas in 1992 called conflict "a process that begins with one party perceiving the other is saying or doing something that has or is about to have a negative effect on something he or she cares about."  The starter event occurs and we the see the other person is doing something unacceptable that does not fit our world view or expectations of the framework we live in.  We perceive this difference and we identify it in some category and then the inevitable happens every time the topic is revisited.  We reinforce the difference by comparing them to us and what we do is "good", "right," "fair", "reasonable" etc so by comparison what they do must be "bad", "wrong", "unfair", "unreasonable" etc and each time the separation is enhanced.  Add to that that those who love and care for us must join in and then we have a group into which more people can be dragged and depending on how big the issue is, we may well be on the way to spoken violence, physical violence, escalation and even, war. 

Alternatively, we might notice our reaction and how triggered we feel and learn to express ourselves sooner so that the other understands us much earlier and is enabled to respond more appropriately in the light of us telling them how what they have said or done has affected us which may also lead to us learning what motivated them to do or speak as they did and where all their fear and alienation is coming from.

You cannot beat talking.  Especially with a skilled facilitator.

Why Mediations fail? Our inability to process.

Why Mediations fail?  Optimism Bias – our inability to process the negative

Below is part of an article written by:

Tali Sharot, Christoph W Korn and Raymond J Dolan

have researched about how our brains process what we don’t wish to hear less than they process what we do want to hear.  This optimism bias has been blamed for the financial crash in 2008 and a number of other things as well as the inability of some people in mediation to face what they are hearing and be realistic about their options.

As mediators we sometimes have a hard time facilitating people in conflict to be able to think about the challenges they need to ride past in order to resolve their dispute.  It has alerted us to the need to repeat the risk assessments several times with parties and keep on with our challenging  and difficult questioning.  However the scientific research below may highlight that it is the way our brains choose to process what we like more than what we don't that may cause this inability to be rational in mediation.

Here is the beginning and end of the article with the credit to Nature for publishing at the end:
“Unrealistic optimism is a pervasive human trait influencing domains ranging from personal relationships to politics and finance. How people maintain unrealistic optimism, despite frequently encountering information that challenges those biased beliefs, is unknown. Here, we provide an explanation. Specifically, we show a striking asymmetry, whereby people updated their beliefs more in response to information that was better than expected compared to information that was worse. This selectivity was mediated by a relative failure to code for errors that should reduce optimism. Distinct regions of the prefrontal cortex tracked estimation errors when those called for positive update, both in highly optimistic and low optimistic individuals. However, highly optimistic individuals exhibited reduced tracking of estimation errors that called for negative update within right inferior prefrontal gyrus. These findings show that optimism is tied to a selective update failure, and diminished neural coding, of undesirable information regarding the future.
Our findings offer a mechanistic account of how unrealistic optimism persists in the face of challenging information. We showed that optimism was related to diminished coding of undesirable information about the future, in a region of the frontal cortex (right IFG) identified as sensitive to negative estimation errors. Participants scoring high on trait optimism were worse at tracking undesirable errors in this region, relative to those who scored low. In contrast, tracking of desirable information in regions processing desirable estimation errors (MFC/SFG, left IFG and cerebellum) did not differ between high and low optimists.
Reduced BOLD tracking of undesirable errors in right IFG predicted the extent to which participants selectively updated their beliefs using information that enforced optimism, while (relatively) dismissing information that contradicted it. Importantly, this effect was not explained by how well participants recalled the information presented to them. Neither did it reflect specific characteristics of the adverse events (e.g. familiarity, negativity, arousal, past experience, how rare or common the event is). Thus, unlike predictions from learning theory, where both positive and negative information are given equal weight, we showed a valence-dependent asymmetry in how estimation errors impacted on beliefs about one’s personal future.
Interestingly, our fMRI data revealed that error evoked activity differed in response to desirable and undesirable information regarding possible future outcomes. Segregated regions encoded error-related-activity in response to new information that called for optimistic or pessimistic adjustments. While the left IFG, left and right MFC/SFG and right cerebellum tracked desirable errors, the right IFG tracked undesirable errors. It is worth noting that previous studies have suggested hemispheric asymmetry in processing positive and negative information consistent with that found here in the IFG 24. Furthermore, while BOLD signal in regions tracking positive estimation errors increased when the average probability was better than the participant’s estimate, in regions tracking negative estimation errors it decreased when the average probability was worse than expected. In other words, activity increased for a better than expected outcome and dipped for a worse than expected outcome – a pattern resembling that of neurons signalling prediction errors.
All regions identified in this study as coding estimation errors have previously been shown to track errors in different contexts, including errors due to incorrect responses, errors in expectations in the absence of action, reversal errors and prediction errors that code differences between expectations and outcomes. Note that those errors emerge when outcomes are experienced, and capture differences in expected and real magnitudes. Here, estimation errors captured the difference between participants’ predictions of the likelihood of a possible future outcome and information about the actual probability of experiencing these outcomes. This information was presented in an explicit form that engaged higher cognitive functions, and this is likely to explain the preferential engagement of cortical regions. Our findings suggest that these error signals are subject to motivational modulation. Specifically, a motivation to adopt the most rewarding (or least aversive) perspective on future outcomes is likely to modulate the impact of an error signal that subsequently influences update. As information regarding hypothetical outcomes is less constrained than actual experiences, the impact of such information may be more easily altered by motivation. It is possible that reduced coding of negative errors is restricted to such cases, and we do not know whether it will generalise to instances where outcomes are in fact experienced.
We previously described a positivity bias in the imagination of future life events, where participants imagined positive future events as closer in time and more vivid than negative events – a bias mediated by activity in rostral anterior cingulate cortex (ACC) and amygdala. Whereas participants in our previous study showed an optimistic bias in unconstrained imagination, here we identified an optimistic learning bias when participants’ beliefs were challenged by new information. These results provide a powerful explanatory framework for how optimistic biases are maintained.
Underestimating susceptibility to negative events can serve an adaptive function by enhancing explorative behaviour and reducing stress and anxiety associated with negative expectations. This is consistent with the observation that mild depression is related to a more accurate estimation of future outcomes, and severe depression to pessimistic expectations. However, any advantage arising out of unrealistic optimism is likely to come at a cost. For example, an unrealistic assessment of financial risk is widely seen as contributing factor to the 2008 global economic collapse. The current study suggests that this human propensity towards optimism is facilitated by the brain’s failure to code errors in estimation when those call for negative updates. This failure results in selective updating, which supports unrealistic optimism that is resistant to change. Dismissing undesirable errors in estimation renders us peculiarly susceptible to view the future through rose coloured glasses.”

This forms only the introductory paragraph and the discussion part of a longer article published by Nature, see:

Probate disputes by Sue Nelson

"If all the misery could be just burnt away…" Charles Dickens

"Suffer any wrong that can be done you rather than come here" was Dicken's advice on litigating over an inheritance dispute. 

I suppose I have a love:hate relationship with probate disputes. I love what it has produced in terms of English literature.  Victorian novels would be thin fare had families without inheritance unhappiness.  Would Mrs Bennett have been so bothered about marrying off her daughters had it not been for the 'entailing problem' which the Bennetts home?  And then there is Jane Eyre, the lost beneficiary of her Uncle's estates in the West Indies.  I even have a fondness for our quirky British rules that have produced a land of rolling estates – better that than a country carved up into strips, the French way, to make sure everyone has their share.  That's the love but the hate burns deep. 

Invalid, home made will

I am the solicitor whose mother died with an invalid, home made will.  Worse still, the shock of her sudden death was exacerbated by the surprise revelation that we had two half brothers.  I am not sure the functional family exists but right then we were not functional. 

We three did our best.  We were probably somewhat inadequately served by our solicitor and certainly unprepared for the psychological complexity of managing disappointments and differences.  Sadly, just as in Jarndyce and Jarndyce, our cause became 'so complicated that no man alive knows what it means'.  Certainly no man or woman alive knows what it meant to me that we managed the process so poorly.  Twenty years later the division within the family still ripples through our lives.  Our complexity arose not from multiple claimants or unascertainable assets but from the people involved.  Our relationships were complicated by the stages we were at in our lives.  Each of us was deeply affected, but differently, by our loss.  These days we are more familiar with heir hunters on tv and celebs tracing their ancestry but outside those media grabbing activities there can be a cruelty of dealing with relatives who cannot engage with you, that is beyond collecting 'their share'.  There is no knowing how if affected our half brothers who never emerged from behind their solicitors' letters.

Wishing for a better tomorrow

At about that time I trained as a mediator and it is a great regret of mine that we were not able as a family to agree on the appointment of a mediator to help us sort out our differences compassionately.  I would have settled for a sensible unconnected family member or friend but no one came forward.  Now 20 years have passed and, among other things, I work as a family mediator.  Couples arrive distressed, disappointed, angry and sometimes bitter and full of a desire for revenge.  And truly some of these couples leave a few months later with their affairs re-ordered having come through a process in which they have been able to have their say and make their own decisions.  Step by step mediators move the process along, unblocking en passé, consolidating agreements and recording outcomes.  It does not remove the sadness and the disappointment but it should not add to those emotions either.  Some clients really do say 'sorry' while others feel able to share both their sadness and their wishes for a better tomorrow once separated. 

Many cases involve complex assets as well as differing needs.  Cash now or pension later?  Who is going to be responsible for the debts?  Increasingly my work involves helping people plan for the future.  'Keep your eyes on the distant horizon', I say to dads who are not seeing their children – one day this will change.  In divorce and separation work once separated there is always a competition over scarce resources – one portion of jam, two slices of bread.  Planning the future helps clients to transit from a broken relationship into a new life.

And so it is with families who struggle to come to terms with a division of property following death.  As more people have wealth to leave because they own their homes so increasingly family members have the crushing feelings of disappointment to deal with on top of their bereavement.  Why has Peter got more than me?  Why do I have nothing?  Why does Mary deserve this money?   The mix can become even more toxic when combined with a sprinkling of sibling rivalry or historical feelings of rejection.  Throw in a family business or bad estate planning and relationships can be traumatised. 

Mediation cures more than litigation

Mediation is not a 'cure all' but it can often offer more of a cure than litigation does.  Misery cannot just 'be burnt away' as Dickens understood; it must be dealt with less it festers.  If you have clients who are starting to fall out over probate consider whether a session with a suitably trained and experienced mediator might offer long terms benefits for all concerned.  Once clients in dispute can get around a table with a trained professional who is able to provide a safe and impartial environment the alchemy of mediation gets to work.  Early mediation offers an opportunity to avoid the courts, helping a family to re-focus itself and write themselves a better story for the future.

Sue Nelson
Civil and family mediator
Conflict Coach