Part I
Introduction
This is an article about the 7 key questions mediators might ask themselves. It is based on my experience of mediating for over 20 years and includes insights I’ve gained from other mediators.
Someone wisely said that “Questions are the answer”. Good questions elicit good responses. And there’s nothing so practical as a good theory. So here goes, with the first question about our motives.
Q1. Why am I a mediator? Why am I doing this at all?
We mediate for different reasons and have different motives. I expect most of us are reasonably clear about this, but probable answers are:
It’s an insurance policy: I am doing this against the possible decline of litigation.
It’s another string to my bow: it’s sensible to add this practice to my skill set. In fact, some say, I like it so much that I’ve made this my central practice.
Mediation lowers prospective costs for clients
Mediation makes for better justice: more nuance and balance than a judge can give.
Because I’m good at it: no shame in admitting this!
Why do I, the writer of the article, do it?
I mediate because I really love doing it, I believe that I am doing some good in helping to bring disputes to a settled conclusion. And that is despite the pressure points and frustrations frequently requiring the patience of a saint.
I now turned to the question of attitude.
Q2. How will I approach a mediation, with what sort of mindset?
I approach a mediation with three attitudes at least.
First of all, with enthusiasm. I can’t wait to get a feel of the case from direct contact with the advisers, to get them to summarise the case in its essentials, to give me a feel of what it’s about.
Next, with hopefulness, because that is what we bring to a mediation. We are suppliers of hope. Between the parties’ situations – of loss, anger, distress, resentment etc – and the settlement which enables them to ‘move on’ – lies the essential ingredient of hope, and it’s our task to keep that flame alive from the word go.
Lastly, with the need to retain a visibly open mind. It is very easy to think that you understand the centre of gravity of a case, can weigh its probabilities, but remembering our independence remains fundamental. We’re not taking sides; we’re doing our best for each side.
So then, enthusiasm, hopefulness and independence are the three attitudes I find it is vital to bring to every mediation.
Q3. What am I going to need before the mediation cogs can start to engage?
I need to know three things in particular:
i the issues;
ii the desired outcome;
iii the state of mind of the parties
The issues
I regard the surfacing of the issues as the most important first step in the mediation preparation. Not, what do the pleadings say? But what is this really all about? We will wrestle with that question all the way to the mediation day. Only if we have crystallised this, will we have something to work on.
The desired outcome
We have all had the experience of parties, or their advisers, so convinced of the impregnability of their case that getting them to signal a compromise of any kind seems impossible. You wonder indeed why they have agreed to mediate, or what they think mediation is.
But as mediators we can’t work out the negotiating parameters – I mean the initial parameters – unless we have some idea of what the parties are looking to achieve.
The state of mind of the parties
This is fundamental. It is particularly true of the contentious probate disputes I mediate, where deep emotion and significant hostility are standard. But it’s also present in professional negligence cases, where reputations are at stake; in banking, investment management or mortgage cases if personal hardship has been experienced or threatened.
So in my view, it is important to keep in mind these three elements – of issues, outcome and the parties’ psychological state.
Q4. How will I prepare?
It seems to me that the essentials are:
Paperwork
Contact with the advisers
Time for reflection
Paperwork
You can’t think hard about a case, or the interests of the parties, unless you have some summary paperwork. And it needs to be with you in reasonable time, obviously.
We are up against many pressures and constraints: the pressure of time if we are instructed late, or get the position statement late, or no position statement at all because one of the solicitors doesn’t believe in them, or the position statement is just a rehash of the pleadings, or you just get a huge bundle without being directed to the relevant parts of it.
And we know that hostility between the parties, and sometimes antagonism between solicitors, can mean that information is only grudgingly handed over.
But I do make every effort to encourage early sight of a position statement, or the relevant documents in any bundle. It helps me if the position statement, preferably no more than a couple of pages of A4, can summarise the issues, desired outcome, and any offers to date. Then I can go to the advisers to provide their further perspective and interpretation.
Contact with the advisers
One of the few benefits of Covid was that we could use Zoom. And personally, I have found Zoom to be a great asset at this preparatory stage. It helps me see the solicitors or counsel, and sometimes the parties, and get to know them a bit better in advance of the mediation day.
These preliminary Zoom conversations provide the most valuable insight into the case. And because they operate under confidentiality rules, there can be frank discussion with parties who know that I am there to help them to the best extent possible.
One area where I often find myself engaged is around the calculation of compensation – what sum would adequately compensate a claimant? Frequently the calculation of a net present value (NPV) is involved – the idea that a series of future payments can be valued as at today. What, for example, would the promise of a set of annual payments over the next 20 years be worth if it were capitalised or discounted backwards? Of course it depends on the rate of interest applied, but it is a way of valuing the ‘present’ value of future payments. This is especially useful where a clean break is required, and a capital sum calculated to provide it.
My advice is that mediators should try to have some grasp of the concept of the NPV and how to calculate it.
Time for reflection
We are always building a picture of the situation we will be mediating, and our sense of where things may end up oscillates.
But I imagine that towards the end of the preparation period we all apply ourselves to take stock – to think how we are going to manage the process, and to understand where we think the ‘true’ balance of advantage lies. By ‘true’, I mean the combined elements of the case as I observe and understand them.
I may, of course, be wrong, and I frequently am. It may be that the wise man is never surprised, as Aristotle said. But I often am surprised when the provisional conclusion that I have come to turns out to be wide of the mark, because of what a party now says, or because there is new evidence, or because a provocative remark has alienated a party into resistance or greater reluctance to agree a settlement.
But in principle, at the preparation stage, I am like most mediators trying to weigh the apparent pros and cons, at least to the point of having some yardstick in my mind to test against the actual positions and demeanours of the parties on the day.
In Part II, I will discuss the mediation itself, and the effect the mediating has on us as mediators.
Barrister, Pump Court Chambers, CEDR mediator and Fellow of the Civil Mediation Council
