CLAIR Cousins, James Naish and Howard Le Cornu, have made it their task to change the culture of dispute resolution in the Island. After decades of experience in their own separate industries, the trio all came to the same conclusion about the need for a more holistic way of settling disputes.
Clair Cousins worked for government, mostly in HR. She trained as a mediator with Family Mediation Jersey, and she says it was almost like she had found her calling. ‘I just thought Jersey is desperately in need of this kind of support,’ she said. ‘You either suck up and walk away, or you go formal. I think what we provide is a third option where you don’t have to go to lick your wounds, you can have your piece heard, and people can understand where you’re coming from. And then you can reach a solution or resolution that works. Whereas, if you go down the very formal route, through the courts or through the employment process, or whatever it might be, it’s very factual, it’s very black and white. It’s very win-lose – and it’s very expensive.’
James Naish is an architect and after running companies for over 20 years in the Island, sold his part of the Naish Waddington firm and was looking for a better way to resolve disputes. ‘There were so many construction disputes over relatively minor items which turned legal and just got blown out of all proportion, way bigger than the sums involved on principle,’ he said. ‘And I could see the only perceived option was to go to litigation. So I thought there’s got to be a better way than this.’
While training in construction adjudication, Mr Naish was introduced to mediation and eventually took a course. ‘Mediation is so much quicker than adjudication. Whereas in adjudication, both sides give their evidence to the adjudicator and, as a skilled industry specialist, he then decides the outcome, who was right, who was wrong. Arbitration mediation is even better than that, because you just facilitate the two sides to actually discuss it, whereas a legal agreement can only be, “you must do or pay this to so and so”. The only mediation you could really do was through lawyers. They’ve been trained in conflict, to protect their client, to support their client whether they’re right or wrong, as opposed to a mediator just trying to get to the truth.’
Howard Le Cornu had worked at the Harbours department for the previous ten years of his career and was providing executive coaching when he met some trained mediators. ‘I’d always had this image of a mediator being a kind of passive peacekeeper, and that for me was the biggest revelation, how mediation and mediation techniques can be used in ways that are not about peacekeeping, but they’re game-changing for teams and for organisations,’ he said.
The three think that in Jersey, in particular, resolving disputes amicably is important because of the size of the Island. ‘You will see people in supermarkets and cafés,’ said Mr Naish. ‘And you don’t want to have to ignore them. You don’t have to work with them again if you don’t want to, but at least you can stop and have a chat.
‘Would you rather resolve it yourself and you be a part of the solution, or would you rather leave it to a judge and they will dictate exactly what they feel is right, with a lot of expense.’
Mr Le Cornu agrees: ‘We hope as much as possible to make this a restorative process not restorative justice. It should ideally end up with the two parties able to negotiate and communicate effectively and amicably.’
Going down the formal route and involving the court system is obviously not just expensive, but it can also take far longer. In many cases there is also often a power imbalance, a larger entity with funds and a smaller one who hasn’t always got the right access to advice and information and which would be significantly more impacted by the dispute.
‘I also think it has a lot of impact on the individual’s health. It doesn’t matter whether you’re a commercial person or a mum or dad or grandma, the stress on you as an individual of having this protracted drawn out process has a real impact,’ said Ms Cousins.
Their largest area of work is in workplace mediation. As Ms Cousins explained: ‘When you go into a workplace, you’ll get a presenting issue that will be for example, “This team can’t work with these people. We’ve tried everything. And now they’re throwing grievances at each other and they’re claiming that they’re being bullied”. Bullying is a big one.
‘Where you have got big change programmes, people will be saying, “They’ve forced this change on us and they don’t understand that you can’t do that in this culture.” Actually when you start to pick that apart, what will have happened quite often is that someone has gone in, been asked to do something, and may not have gone about it in the best way, in a way that’s brought other people along with them. So then you’ll get someone saying, “Oh well, they haven’t done this, so we’re not going to do that”. That’s when people start to form camps and it becomes very fractured. Generally, the thing that’s triggered it will be a year earlier than when we will be contacted, because it’s now become so disenfranchised.’
‘The outcome of all this is that if you can have some serious performance issues,’ added Mr Le Cornu.
‘Where the call for us comes from the director general saying either we’ve been told we need to take this team to mediation or this bunch of people have become so dysfunctional, or have got such a problem working with each other, we can’t accept this any longer. And we don’t know how to fix it. Or we’re getting claims of bullying, we’ve got grievances.’
The results the team find are that several people might be off sick long-term, that there are often several grievances that have been formally made and at least one or two people are suffering mental-health issues as a result, plus more mistakes are being made and productivity has declined.
‘The reason we get the call is because the formal process doesn’t fix it,’ added Ms Cousins.
‘So if they’ve got bullying and harassment claims against them, or grievances, for whatever reason, that process generally destroys people, because it’s so black and white. Your HR department becomes a policeman. You start using terms like evidence, give statements, have hearings, you go very formal, which is not helpful and the individuals who are dragged along in that become very disenfranchised. You lose all that “going the extra mile” and the productivity gets hit. We’ve had places where they’ve lost days of work because the team is so broken, let alone the costs of bringing in temps and personal indemnity claims – all that starts to rack up.
‘And the real plus for the workplace is that because it’s an impartial, confidential process, it doesn’t sit on an employee’s file, whereas a grievance or investigation does. An investigation is just a horrible process. I’ve been an investigator and I had to call people in to sign their statements. It’s just awful.’
‘Within the construction industry probably 90% of the disputes are misinformation or poor communication,’ said Mr Naish. He advises that if contractors speak to clients and tell them there is a delay and why, the situation does not get out of hand like it can do if they just don’t turn up.
It is not just the office or shop-floor workers who have problems, the team work with a lot of boards where the leadership have major issues and that filters down. It’s also not just about thinking of mediation after a dispute has arisen, the team suggest it on a policy level, ie that a contract includes a clause of what to do if there is a dispute with both parties going to mediation.
They are not trying to take business from the legal profession but believe the two work best in tandem. As Mr Le Cornu explains: ‘A lawyer is focused on protecting their client’s position, whereas the mediator is focused on the interest and needs of both sides. Our goal is to collaborate with, not to compromise, but to actually find a mutual win.
‘The collaboration between a lawyer and a mediator, which we’ve done quite effectively on numerous occasions, is where it can work really, really well. The two roles are both valuable roles, both needed in our society, but they work together for the benefit of the client.’
Ms Cousins thinks this approach is better for clients. ‘The lawyer will retain the client,’ she said. ‘If you’ve got ten points of disagreement, chances are through mediation, you can agree eight. That just leaves you two to work with and you’ve got options of how you do that.
‘But actually the service the client gets is much more effective, they feel heard, because they’ve been part of it, they’ve had control over the outcome and where there is an absolute impasse, they’ve got the legal advice, so they know they’re protected. They’re not feeling like they’ve had the wool pulled over their eyes. I think that is far more wholesome.’
Howard Le Cornu sums up how the three of them feel: ‘Mediation is the best-kept secret from leaders in industry, whether employers or as contractors, because people don’t know about it. And that is our mission.’
The Resolution Centre offers accredited training once a year and is also holding the Resolution Conference in association with the Chartered Institute of Arbitrators. It’s taking place at the Radisson Blu Hotel, Jersey on Wednesday 3 and Thursday 4 April. More information: www.theresolutioncentre.com
