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Meet the Mediator with Phillip Howell-Richardson

Our new ‘Meet the Mediator’ feature continues with Phillip Howell-Richardson and will feature a different mediator in each issue. Here the mediators share suggestions on maximising potential for reaching a settlement (in their opinion), strategies or techniques they find useful in breaking a deadlock, a mediation they will always remember and why and some of the changes they have witnessed in the mediation landscape during their time practising in the field.

 

What type of cases have you been involved in as a mediator?

Over the years I have mediated cases involving all aspects of the law and parties from all over the UK and internationally.  This has meant I have also developed a reputation internationally as well as in the UK, mediating cases with parties from as far afield as Asia, America, Europe, Middle East, India, Africa, and even Australia. These cases have included: aviation personal injury claims, employment claims, IP /IT disputes, claims for money, fraud and insolvency claims, bank claims, professional negligence disputes, construction disputes, commercial disputes involving companies or individuals, and disputes involving Government Departments / Organisations.  I estimate I have mediated 1,200-1,300 cases across my career.

What are one or two of the mediator techniques or strategies which you find particularly useful in breaking a deadlock?

Once an impasse has arrived one technique is to call for best proposals from both parties each of which are given to me in private.  I then hold both proposals. Sometimes the parties may want me to describe the gap between the proposals in a way that I will have agreed with them before proceeding further.  This often helps both parties see that they are closer together than they thought. In any event the next step is usually a release of the offers to the intended recipients thus restarting the negotiation.

Another technique is to change the means of communication. Thus private sessions are replaced by direct conversation being conducted between decision makers or lawyers or experts together. Alternatively the mediator can convene all parties in a group meeting to discuss an issue identified by the mediator.

Alternatively, call for food to be brought in to bring a break in negotiations, so that the parties can pause to think and to step away from the negotiation table. During that period, I may take one or more of the parties for a walk in the fresh air to encourage fresh thoughts and new energy for the next period. The list is endless and determined by the parties at the table.

 

Disputes can often be quite complex and multifaceted. To what extent do the various elements – such as industry, size of company, jurisdiction of conflict, etc – play a role in your approach?

When designing the mediation process, all factors are relevant. Ignoring any element could make the difference between a successful negotiation or an impasse – especially so in a complex case.  Thus, if at all possible, there should be meetings with the parties and the lawyers well in advance of the actual negotiations. These meetings are invaluable in understanding the history of the dispute, the parties’ interests that have not been vocalised before, the dynamics between the people involved and the legal issues, and the strengths and weaknesses as they are really assessed in private. They also present an invaluable opportunity to prepare all parties to the dispute for the upcoming mediation process by: establishing or clarifying effective authority for the decision makers present from complex organisations; defining the scope of the issues in dispute; and even, if necessary, agreeing a step by step process beforehand to produce the necessary detail or understanding in a useable form so that the decision makers are put in the best position possible for the final phase of the negotiation.

There is no one size fits all. There is only what the needs of the dispute and the disputants are and being ready and willing to flex your approach as needed to guide the parties through their issues to a successful negotiation.

 

Is there a mediation that you will always remember? What difficulties or examples of excellence did it possess and how did you learn from these?

There are two in particular. One is the Porton Down Case and the other is an investor state case.

The Porton Down case involved a mediation between the MOD and the Porton Down Veterans Group. After decades of pressure the mediation between the MOD and the surviving claimants took place and I was the mediator involved. This resulted in an apology being given in Parliament, a research unit being set up to investigate and treat the illnesses, and compensation to the surviving victims as well as other initiatives such as a memorial to the people who were affected. More than 30 people were present, and the opportunity was taken for an impact statement to be made directly to the MOD and, through the officials present, to the Minister. Hundreds of the victims went to the Law Society Hall to approve the full terms of the agreement before the mediation moved on to formally concluding the settlement agreement.

The second involves a more than a billion dollars investor state dispute between a global corporation and an African State. December 2012 saw the start of the mediation and in May 2013 a framework Settlement Agreement was signed. The settlement involved no money passing but the creation of a new joint venture and all the necessary facilities and processes for industrial production thus bringing the benefit of local employment export income. The implementation phase of the mediation continues to the present day.

Both cases involved creative process design, careful interaction with people in conflict, awareness of cultural differences, leadership of the mediation as the parties needed from the mediator, and continuing energy and commitment to overcome setbacks.

Do you have any tips or suggestions for participants on how to maximise the potential for reaching a successful settlement?

Prepare, prepare and prepare for a successful negotiation. Know all the essential elements of your side of the dispute and analyse what you consider the real interests and needs of the other side are as well. If any information is missing and you feel it is necessary to have it available for the negotiation, be sure to obtain the information that you need. It is probably not necessary to have information that is hardly relevant to the issues to be negotiated, nor to be awash in so much detail that decision makers cannot negotiate effectively. But do obtain the essential detail you need to have to understand both sides of your case.

When you have this, consider your position from the other side’s viewpoint; what would they say about your case? What are the strengths and weaknesses of your case? Do the same analysis using the other side’s case. Evolve a negotiation plan always being aware that you have to stay nimble and alert to the dynamics of the negotiation as it takes place.

Prepare carefully to open the negotiation conversation with the other side in a skilful way so that engagement takes place immediately and you take advantage of the other side wanting to hear where you are coming from. There is no winner and loser in a negotiation – there should be give and take on both sides. So what are the two or three things you want to use to obtain maximum persuasion impact and what are you willing to live with?

Tell us a little about your background as a solicitor and how this benefits your work as a mediator?

I was a litigation lawyer throughout my career as a solicitor. I started as an advocate in the magistrates and county court where I represented individuals, companies and banks. The cases included crime, from white collar to serious assault; motoring and licensing; landlord and tenant disputes; and debt recovery and insolvency.

At the same time, I also developed a strong interest in personal injury claims which led me to doggedly pursue my first paraplegic case to full trial when I and my team secured the largest PI award ever given in the UK at that time. That result led to me to being instructed personally by several insurance companies who followed me from Bristol to Cardiff when I joined Morgan Bruce and Nicholas. Within three years of my joining I took over the leadership of the Litigation Group, and over the following years the Litigation Group grew to over 400 people. During that process as part of my role I moved from Personal Injury to the Commercial Litigation section and thereafter I created a construction group, a banking group and a mainstream commercial litigation group for companies, organisations and people in business.  In this period, I set up a sub office in Swindon to support a large commercial arbitration over an engineering project termination. I also acted personally for a Government Department and connected agencies for 5/6 years in claims for recovery of large sums of government monies due to alleged fraud. At its height 19 concurrent aggressive actions were ongoing in the US and UK in that matter.

These are just some examples of the depth and range of my career in law as a solicitor. I ceased practicing full time as a solicitor in March 2005 by which time I had practiced for 30 years as a hands-on litigator.

I stopped to become a full-time mediator and consultant in ADR and mediation with S J Berwin in London. I am still to this day a non practicing solicitor.

The above experience of people, litigation, law in action and decision making is of enormous help to me as a mediator and shapes the way in which I bring even the most disparate of parties together.

 

What led you to move into mediation?

In the latter part of my career as a lawyer I became more and more dissatisfied by the high cost, delay and unsatisfactory nature of the litigation processes in which I was involved. I yearned to cut through the processes to get to the heart of the matter and to find ways to thwart or prevent gamesmanship which held people away from finding justice as they perceived it. I became frustated with the damage it was doing to people’s lives. There was always the thought “surely there must be a better way”.

A chance participation in a mediation meeting in 1990 in a case in which I was acting led me to attend in the same year the inaugural meeting of ADR Group. The rest is history. I was elected as Chairman shortly after that meeting was concluded after having put my hand up to volunteer as a member of the first Board of Directors. Mediation quickly became a means  to apply my wide legal knowledge and experience in a much more effective way.

 

What’s the best part of your job?

Giving people the maximum chance to craft a settlement that they can live with so that they are enabled to be free of conflict and dispute.

What changes have you seen in the field in the time you’ve been practising as a mediator? Have these changed how you mediate?

When I first became Chairman of ADR Group I had real faith in the potential of mediation but couldn’t have anticipated the extent of it’s success as a field. In the beginning no one knew what the mediation process was. There were hardly any mediators trained in the UK, users were apprehensive of using an untried process and there was hardly any use of mediation. At best it was regarded as an idea that might have potential but surely it would never work here in the UK.

In the early period of development I had a leading role in raising awareness through  conferences, pilot programmes, public debates, and education of  decision makers  and influential organisations. Gradually through parties using mediation and finding that it worked, excellent training of an early band of able UK mediators, judges supporting the use of mediation and a series of cases pressing the lawyers to consider and use mediation, mediation moved out of the shadows and came into mainstream use not just in the UK but around the world. I’m proud to see how far it has come and how prolifically it is now used as a way to bring even the most complex of disputes to settlement.

Now we have a varied and experienced group of professional mediators who practice in many areas; an expanding application of mediation to nearly all commercial activities, involving the full range of commercial disputes for individuals and every size and shape of organisation, family, community, workplace and even restorative justice. Judges have incorporated mediation into the litigation process and international mediation is taking place more frequently.

As for the future of mediation, there is still so much more it can achieve. I can foresee increasing use in international disputes and application to public debate and decision making processes. This is quite part from significant developments being made in the understanding of crisis decision making, and of the art and science of negotiation.

 

When you are not mediating what do you like to do?

I sail in keel boats in Chichester harbour as a racing crew on weekends, I sing in St Bart’s Choir performing in three concerts a year at the Royal Festival Hall. I bike ride whenever I can and enjoy long walks with my wife and our walking group all around the country. Most importantly of all I spend time with my family, with five grandsons under five they are a great reminder of the energy of life.

Independent Mediators awarded Who's Who Legal Mediation Firm of the Year 2019

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