Law News speaks with leading Scottish mediator Dr John Sturrock QC
Dr John Sturrock QC is recognised as the leading commercial mediator in Scotland (being named Scotland’s “Mediator of the Year” in 2009), with a practice extending throughout the UK, Europe and the Middle East. Since leaving active practice at the Scottish Bar in 2002, he has pursued a full-time career in mediation in commerce, industry, the professions, sport, the public sector, senior management and other sensitive and complex matters and has facilitated many high-level dialogues. In 2013, he joined Brick Court Chambers in London.
Dr Sturrock QC is currently visiting New Zealand as a speaker at AMINZ’s annual conference – for more please see www.aminz.org.nz. Law News had the opportunity to ask him some questions about what he does and his work in relation to the recent independence referendum in Scotland.
What prompted you to get into dispute resolution as a full-time career?
I first learned about “principled negotiation” in the summer of 1996 under the great Roger Fisher (author of Getting to Yes) at Harvard and a few weeks later trained as a mediator in Edinburgh. These experiences changed my view of what I was doing at the Bar – I realised that moving into mediation and using “interest-based negotiation” was more in alignment with my own philosophy of life and my real desire to help people, whoever they might be, to work better together. I learned that cooperation is key to our survival in business, in the workplace, even in politics.
What gets you excited about what you do?
A number of things! I am passionate about people being able to have conversations about difficult topics, whether that be a legal dispute, a business relationship gone wrong, a dysfunctional workplace, political differences, climate change strategy, theology and so on. The moment when a sense of humanity returns to a room and one person looks at another and says that they understand that other’s point of view is a deeply rewarding one. That moment is often accompanied by a remark along the lines of “why didn’t we have this conversation a year ago?” And it’s great to see the relief on the face of someone who realises that a difficult situation that has gone on for months (or longer), with all the anxiety that it brings, is now coming to an end and that a new chapter can be opened.
What is the greatest challenge presented by your role?
Staying calm, being in the moment, focussing on the person right in front of me and remembering “it’s not about me”. These are all the things you might expect to hear of course and can be rather glib. On the other hand, any effective mediator (or coach) needs to do each of these things and avoid being seduced by a sense of power or an urge to fix things. As soon as you direct your attention to finding a particular answer, you immediately reduce your power as a mediator (or coach) – this is one of the interesting paradoxes in what we do. Recognising this ambiguity and uncertainty opens up all sorts of possibilities.
You work in a wide variety of sectors. How different/similar is it mediating, say, a sports-related conflict compared to a commercial dispute?
A money claim by a contractor for millions of dollars seems very different from an appeal about non-selection for an Olympic sport. But the similarities are much greater than the differences. They say that there are only four or five great themes in Hollywood films. I think the same may be true for all human interactions which lead to disputes and disagreements. The superficial symptoms may be different, and the facts and applicable law are often sharply contrasting. But, under the tip of the iceberg, the real concerns, needs, motivations, aspirations, hopes and fears are often very similar. Poor communication, lack of understanding, under-appreciation, loss of trust, emotional reaction to assumptions which are often wrong, falling into what we now call cognitive traps or biases – all of these are universal in my experience.
You were involved in negotiations prior to the recent independence referendum in Scotland. That must have been a fascinating and challenging process with which to be involved?
The Scottish referendum was one of the great experiences of my life, and of the lives of many people living in Scotland over the past two years. Our whole political framework changed. People who had never engaged in political discussion did so and perhaps forever changed our understanding of politics in this country. Scotland has become a sophisticated nation in the context of mass involvement in the issues of the day. Early in 2014, one of the real concerns was that the debate was becoming personalised and polarised. A number of us wanted to suggest something different. So we came up with the “Protocol for Respectful Dialogue”, got hundreds of signatures, took out full page adverts in the newspapers and held a series of dialogue events under the badging of “Collaborative Scotland”. I think we can say this contributed a little to the overall constructive way in which the referendum was conducted. I have also had other involvement, pre- and post-referendum, as a negotiation adviser, facilitator and trainer but that must remain confidential! In that role, I have often had to pinch myself in meetings … there is so much more that we mediators can offer.
In what ways do you see mediation as a useful tool to help build a better society?
I would say that the future of our human civilisation depends to a considerable extent on adopting the kind of approach to disagreement and difference which mediation represents. We can’t go on fighting over diminishing resources and relying on binary win/lose, black/white decisions to resolve difficult issues such as climate change, distribution of wealth, migration, over-population, water shortage, environmental degradation and territorial disputes. We can’t secure our futures by traditional power-based bargaining, where hierarchies and force are often used to achieve self-interested ends. We need to get more bangs for less bucks, recognise a multiplicity of needs, and work really hard to find intersections of interests and to live interdependently and sustainably, whether we like it or not. That is not easy but the skills and techniques of mediation are well-suited to helping us to change the mind-set at all levels.
What do you think makes a good mediator?
A genuine interest in people. Real curiosity about what’s going on. Authenticity, humility, courage, an ability to take responsibility even when it’s not your fault. A lot of patience. Lightness of touch. What we often describe as a “non-anxious presence”. Compassion, detachment and engagement. Hope. Rigorous attention to specifics where necessary. Flexible intelligence. Sound commercial awareness and deep understanding of the human condition. A willingness to ask the really tough questions and to make them appear genuinely non-threatening. Gravitas, so that, at the moment when it really matters, the mediator can bring to the mediation what the parties really need.
Not all lawyers are specially trained mediators, however, are there techniques we could all utilise to manage conflict in their daily practice?
Being properly prepared is key in all things, not just legal and factual analysis but being aware of commercial, reputational, strategic, monetary, emotional and other elements in any problem-solving matrix. Be clear on your and/or the client’s real objectives. Separate people from the problem – always show respect and courtesy whatever you may think of the others, and be rigorous about the issues. Ask lots of questions rather than asserting – “judge someone by the quality of their questions not by their answers”. Challenge your assumptions; they are often wrong. View matters from the other side’s perspective – get into their shoes. Keep looking for new options. Steer away from the zero-sum, win/lose paradigm. Try to create added value. Be aware of what are called cognitive biases – the most interesting area in our work is, I believe, neuro-science, which has so much to teach us about conflict, why it arises and how we might deal with it. Try to understand this stuff as much as you can!
Of what achievement are you most proud?
Professionally, while I am enormously proud to have helped to bring commercial mediation to Scotland, I think I am proudest of my work at the Scottish Bar where we built a really strong advocacy skills programme in the ’nineties. That was wholly new for us then and transformed the Bar’s thinking about continuing training. And one of the sources for us was the work being done in New Zealand at that time! I well remember dining with Sir Bruce Robertson and your former President of the Court of Appeal, Sir Ivor Richardson, in 1993, when I journeyed round the globe to explore advocacy training.
Do you have a favourite legal or political-themed movie/book/TV series of all time?
I have really enjoyed “House of Cards”. While Kevin Spacey plays his role with real skill, I think Robin Wright is fantastic as his wife. “Yes Minister” and “Yes Prime Minister” hilariously captured what (apparently) goes on in the back rooms of politics, and may not have changed that much even over 30 or 40 years. Lessons in Life: Mandela’s Way, by Mandela’s biographer Richard Stengel, is a fabulous collection of ideas about leadership with arguably all that we ever need to know as mediators or coaches or leaders. And two movies about Mandela’s life, the autobiographical “Long Walk to Freedom”, and “Invictus”, about his crucial role in South Africa winning the 1996 Rugby World Cup, capture the essence of a great man.