Negotiating arbitration clauses post-Brexit | Lexology http://ow.ly/rcUY302GKpr
This article addresses the impact on Arbitration http://ow.ly/DpGX302C0pe
In two series of reforms, The Woolf Reforms and The Jackson Reforms, control the process of proceeding by active case management (taking away the decision making and active case management from the parties) was to be handed to the Court to improve efficiency; and the costs would be made proportionate. Costs Budgeting was also introduced. It is generally agreed that both of these Reforms have had the opposite effect of increasing delays and increasing costs.
Two pilot schemes are now running and will continue to run until October 2017 in cases predominantly in the Chancery Division, Commercial Court, the Technology and Construction Court and the Mercantile Court. http://ow.ly/oXyp302o0Uv
“Therefore, if the parties do genuinely intend for disputes to be referred to arbitration only this intention should be clearly worded in any dispute resolution or arbitration clause in the potential agreement.” http://ow.ly/2EtH302clpc
This is a Guest Post written by Charlie Irvine
Charlie and I recently attended the SocArts symposium on Music – conflict – transformation presented by the Exeter Sociology of the Arts, Exeter, England http://socarts.net/
Charlie Irvine has been mediating in Scotland since 1993, when he trained as a family mediator. His practice now includes workplace, family, education and professional complaints. He has a keen interest in the academic development of mediation and in 2007 he completed the MSc in Conflict Resolution and Mediation Studies at Birkbeck College, University of London. In 2010 he wrote and delivered University of Strathclyde’s new Masters programme in Mediation and Conflict Resolution and he continues to deliver training in both mediation and conflict skills. He has written a number of articles on the subject of mediation (available from http://ssrn.com/author=873941 )including an examination of the values underpinning the discipline. He is currently Chair of the Scottish Mediation Network – http://www.scottishmediation.org.uk
Charlie is married with two teenage children and is a former professional musician and a qualified lawyer.
At Exeter Charlie asked us to listen and reflect upon this song before he spoke:
Bright Eyes by Poison Oak
Here is Charlie’s Post:
Emotional literacy for the iPod® generation (a speculative proposal)
I am writing this while listening to my past. Via the magic of ‘shuffle’ my iPod® presents three and four minute slices of music that wordlessly evoke memories: places, moments, smells, feelings, people, ‘where were you when you heard….?’ Some barely touch me while others arouse intense emotions and even physical sensations – that warm tingle of the spine when a piece of music scores a direct hit to my neural circuitry. All of this from a wee piece of technology barely ten years old.
We know that our emotions are intensely engaged by conflict. For most of us these are initially negative. In workshops I often ask people to tell each other about a real-life conflict, then describe the emotions they experienced. The list is almost always the same: anger, sadness, fear, confusion, anxiety, betrayal, foolishness, a sense of injustice and (the ‘F-word’ of conflict) frustration. Given time positive words appear: relief, energising, galvanising, revenge and even happiness. We should not think, however, that these feelings are somehow ‘irrational’. Antonio Damasio (1994) tells us that emotion and cognition are intimately connected: we have feelings about thoughts and thoughts about feelings. When we are in conflict we are likely to rely on ‘somatic markers’ (cognitive shortcuts encapsulated in body and brain that save immense amounts of processing power) to help us make sense of what is happening and decide what action to take: “emotions and feelings have been connected, by learning, to predicted future outcomes of certain scenarios” (Damasio, 1994, 174). So emotions matter, and are actually critical in helping us to deal effectively with novel and difficult situations such as interpersonal conflict.
And it is in the realm of the emotions that music plays its special role. It is clear that people who play music together are affected by it. Communal singing, composition, dancing; all achieve perhaps even more. But what of the millions of people who simply listen to music, sometimes unkindly characterised as mere consumers? For many of us, especially the young, the MP3 player provides life’s soundtrack. Might it be possible to exploit this instant touching place for the emotions to affect how people make sense of and act in conflict? Could we use the portable music collection to steer into the heart of emotions (and not sweep them under the carpet, as some approaches to conflict resolution suggest)? Recent research provides support for this idea by demonstrating that the act of attending to one’s emotions reduces arousal in the amygdala (Herwig et al, 2010). It has already been speculated by a number of writers that mediators should make more of people’s capacity for emotional self-regulation (Jones, 2006; Fisher & Shapiro, 2006; Linder, 2006). I propose that the MP3 has huge potential to assist us with this task.
How would it work?
An important feature of iPods® and their ilk is the playlist. The playlist provides the architecture for the soundscapes we create. They are personal – a unique matching up of one piece of music and another – and creative. People invest hours in crafting the right playlist for the right situation, like being their own club DJ. A playlist can contain two songs or two hundred and then shuffle within itself so that, having made the choices, the listener can still be surprised by the order.
Conflict resolvers may be able to work with the self-expression unleashed by these playlists. The first and simplest idea would be to invite a party to “make a playlist for this situation”. This leaves it open to the person to express themselves in whatever way they choose. Another approach would be “make a playlist for how you feel about this situation”. If our intention is to direct attention to the emotional realm this may be more forceful, but risks narrowing the focus.
Going further, I was inspired by a visual art technique I learned from a children’s worker in my local family mediation service when I saw a striking set of images drawn by a child. She explained that she would ask the young person to divide a page into four and then draw in each quarter as follows:
• Past (how things used to be)
• Present (how things are)
• Future bad (my fears about what might happen)
• Future good (my hopes about what will happen)
Applying this to sound, someone in conflict could be invited to create a playlist for each of these headings. This would provide insight into their emotional state and a self-soothing soundtrack to further emotion work. For those who have less time or patience, a simpler approach would be to focus on the latter two, hopes and fears.
To share or not to share
The creation and use of these playlists would be an end in itself, allowing a person to attend to the emotions conjured up by conflict in a safe, private setting. A practical spin-off, adapted from Cognitive Behavioural Therapy, could be to help a person detect change over time: a playlist created earlier may seem dated, and provide them with evidence that they have moved on.
A further step would be to share the playlist with the other person in the conflict. There are of course risks, especially if the conflict is bitter and longstanding. A playlist could be used to convey destructive and mistrustful messages, possibly without a mediator even detecting it. However, there is an equally strong chance that it will reveal a different facet of the person, perhaps a more vulnerable side, or a less absolute view. The next time the participants speak the conversation may be altered through this non-verbal exchange. They are likely, at the very least, to have greater insight into one another’s perspectives.
This is a speculative ‘proposal for further research’. It may or may not work in practice. It forms part of a longer personal quest to take my conflict resolution practice beyond ‘mediating from the neck up’ (Irvine, 2011). Rather than seeking to contain or ‘handle’ emotions, I suggest that we need to embrace the physical and emotional realm which is so evidently manifest in conflict. It is my hope that we can learn to exploit the extraordinary capacity of MP3 players to act as a resource of memory and emotion. While not perhaps as obviously powerful as the act of making music together, for the many millions of music consumers this could expand and focus the long-observed healing power of music, and harness it in tackling the endlessly perplexing phenomenon of conflict. To quote Stephen Stills: “Music sets an atmosphere for reason to occur in conjunction with passion” (Crosby & Bender, 2000, cited in Johnston, 2010).
Antonio Damasio Descartes’ Error: Emotion, Reason and the Human Brain. (London: Vintage Books, 1994)
David Crosby & David Bender Stand and be counted: Making music, making history. (New York: Harper Collins Publishers, 2000) cited in Mindy Kay Johnston Music and Conflict Resolution: Exploring the Utilization of Music in Community Engagement. (Unpublished Masters Thesis, Portland State University)
Roger Fisher & Daniel Shapiro Beyond Reason: Using Emotions As You Negotiate. (New York: Viking Press, 2006)
Uwe Herwig, Tina Kaffenberger, Lutz Jancke & Annette B Bruhl ‘Self-related awareness and emotion regulation.’ Neuroimage 50 (2010) 734-741
Charlie Irvine “Dealing with Emotions in Mediation: A Grid for Practitioners” in Michelle LeBaron and Carrie MacLeod (Eds.) Exploring the Crossroads. (forthcoming, 2011, American Bar Association)
Trisha S Jones “Emotion in Mediation: Implications, Applications, Opportunities, and Challenges” in Margaret S Herrman (Ed.) The Blackwell Handbook of Mediation: Bridging Theory, Research, and Practice. (Oxford: Blackwell Publishing, 2006)
Evelin Lindner “Emotion and Conflict: Why It Is Important to Understand How Emotions Affect Conflict and How Conflict Affects Emotions.” in Morton Deutsch, Peter T Coleman and Eric C Marcus (Eds.) The Handbook of Conflict Resolution: Theory and Practice. (San Francisco: Jossey-Bass, 2006)
Bernard Mayer The Dynamics of Conflict Resolution: A Practitioner’s Guide. (San Francisco: Jossey-Bass, 2000)
Leonard Riskin “Further Beyond Reason: Emotions, the Core Concerns and Mindfulness in Negotiation.” Nevada Law Journal, vol. 10, no.2, Spring 2010, 290-337