Part II
Q5. How will I manage the mediation itself?
Although the settlement rate in my experience has not altered with mediations on Zoom, there is a bit of difference in the approach around the logistics of breakout rooms and the lack of impromptu corridor chats. But broadly speaking, the management of the day is about the substance – the to-and-fro between the parties.
We are of course ‘managing’ the mediation rather than controlling it. We cannot impose our wills on autonomous parties because it is their day and ultimately they will do as they please.
As it is, I try to suggest that there is no good reason (is there?) why we shouldn’t conclude this mediation in normal working hours. I say that it means the talking and the negotiating must be over by 4pm if the advisers are to have enough time to write up the agreement. (I certainly don’t ask what time the last train leaves!)
My hope is that the ‘issues’ in the case will already have been clarified before the day begins. I make clear that my task is to help the parties find the road to settlement, the path through the thickets. I don’t mention the possibility of failure. I urge the parties to keep the end in view. It’s the hope point again.
Building early rapport is vital. I am not afraid to explore feelings because it is feelings that enable me to understand what’s going on; and of course, feelings drive behaviour and influence outcomes. The more we can understand them the better the process and outcome is likely to be.
I also ask what the benefit of settling today will be. I find this is powerful because it tells me in the party’s own words what a settlement is going to mean. It gives me a yardstick against which to judge progress during the day. And it directs the parties’ minds to the achievement of settlement. It is important to keep the focus on the benefits of settling.
While many parties will say that ‘moving on’ is going to be the main benefit, other reasons for settlement are many. There may be a financial benefit. There may be sheer relief that the long process of dispute has been brought to an end. There may be the desire to have a good night’s sleep. There may be resumed trading relationships. Sometimes the benefit is said to be the mending of broken family relationships, though sadly, most often, this will be a forlorn hope, unless both parties intend it.
Although the party’s advisers will usually have explained the basis on which I am mediating, I like to repeat it in my own words, as it is a good way of establishing early rapport and building trust.
- ‘I am mediating this dispute, not judging it’. My task, I say, is to facilitate a settlement if that’s what the parties want;
- ‘I am independent, I have no bias one way or another’. I will do my best for each party. However, reality testing may sound as if I have given up my independence. I always ask for permission to reality test;
- ‘Conversations in the individual rooms are secret’; confidentiality is absolutely critical, and I will only take a message to the other room if they ask me to;
- ‘The mediation day is without prejudice’ to any later trial. If no settlement is reached, nothing disclosed or admitted at the mediation can be introduced at the trial. It will be as if the mediation had never taken place.
I then say that there are two golden rules in mediation. One is more golden than the other. The lesser rule, which often makes the parties smile, is that the mediator always spends more time in the other room.
The real golden rule is that…..both sides have to give something up. This is a fundamental point to get across, recalling President Kennedy’s famous words: ‘We cannot negotiate with those who say, what is mine is mine and what is yours is negotiable’.
Q6. Shall we get cracking?
An initial question is: plenary or no plenary?
This is a crucial question.
The excellent CEDR training that I had in 2003 presupposed that every mediation would start with a plenary or joint session. 20 years on and this orthodoxy is rather less assured. For example, in cases of high personal emotion, a plenary may risk derailing the success of the day, or a significant part of it. And high emotion is not only found in contentious probates, professional negligence, defamation or workplace disputes: it can feature almost everywhere. And our decision as mediators is to come to a view, with the input of the parties’ advisers.
In probate cases I never hold a plenary and have never faced any objection to this from the parties. A few seasoned mediators accuse me of cowardice by refusing a plenary. They may be right, but I prefer to be prudent!
The second important matter is costs.
As a rule of thumb, I try to deal with the costs early on. By costs, I mean not only the costs incurred up to and including the date of the mediation, but also the cost of going on to trial. On the latter, I have estimated that the cost of an average 3-day trial in the cases I mediate is about £300,000 – large enough in most cases to act as a deterrent to the parties, or as an encouragement to settle.
My third point concerns negotiation and opening offers.
At a certain point, there will be an opening offer. As a rule, if we’ve done really good preparation, it should be sooner rather than later, and preferably before lunch time.
Who makes the opening offer will of course from case to case. It may depend on what ‘point’ the claimant or defendant is trying to make or what ‘marker’ they want to lay down. But the opening offer is crucial.
If a claimant pitches it too unrealistically high, as if they don’t really need to make any concessions, or if a defendant makes an offer so low as to be provocative or insulting, then the progress of the mediation may be set back significantly.
I do not hesitate to say to parties making an opening offer which I consider much too low or much too high, that it would be best for them to take some more time and to reconsider it. Parties generally agree to this, even if it is with some reluctance. I suppose this is because they have a sense that I must know what is going to land well or badly in the other room.
All the rest is managing conversations as a shuttle diplomat.
Q7 How are my mediations affecting me?
This is a final question for reflection.
Mediating can be stressful. We are undoubtedly at the intersection of hostile forces, even if we are not the object of them. We cannot escape the negative influences present in the parties’ rooms. And there may be frustration at the lack of movement, intransigence or wilfulness of the parties.
In these situations, we are having to manage ourselves and our emotions. It can help enormously to have an observer, or better still a co-mediator with us: talking through one’s frustrations or thinking about new ways through an impasse. Debriefing with an observer or co-mediator or assistant at the end of the mediation can help enormously.
Aside from this, we must have regard to our own wellbeing in general. It may be exercise or yoga or going for a walk or singing in a choir or playing football or listening to music or reading a novel. Anything, really, which enables us to maintain an even keel amid the pressures we face as mediators.
Conclusion I hope these 7 questions have helpfully touched on key aspects of the mediator’s task, including the necessary reflections to ensure we are in the best shape first to approach and then to conduct our important task.
Barrister, Pump Court Chambers, CEDR mediator and Fellow of the Civil Mediation Council
