“What’s been going on in recent mediations”, asked a colleague. “Any highlights?” (The trouble with doing anything on a regular basis is that you can omit to reflect on the learning from each occasion.)
So, for me, here are some recent takeaways:
The value of bringing the principals/decision-makers together for an early conversation. There is usually great benefit in this. If they have met before, this renews that acquaintance in a difficult yet private forum. If they haven’t met, they have an opportunity to get to know each other as individuals, not names on emails or contracts. They set the scene for what is, after all, their day. And, crucially, it provides a set of reference points for later stage negotiations when only they can do what needs to be done. In contrast, on one occasion recently a lawyer was present on his own, without any client representative or other support physically present. What could have been really awkward became an example of effective and courageous lawyering in which the lawyer achieved a balance between presenting his clients’ position and frank exchanges with the other party – and private advice to his client on the telephone.
Involving experts. I’ve had some fascinating examples. On one occasion, we had two experts explain to each other why they differed, in front of one lawyer and one decision-maker for each party who could ask occasional questions, along with the mediator, who could ask some of those “daft laddie” questions that only a mediator can. Much was achieved with this exercise though the loss of control can discomfit the lawyers involved. On another occasion an expert who was an inventor of a high tech application explained to the full assembled crowd what his invention entailed. Some of those present understood. In yet another matter, one expert effectively assumed the role of an independent third party, offering guidance to both parties, by consent, on what they needed to do to help resolve difficult matters of valuation in a final account in a large construction contract.
Bridging the gap. In one matter, after several hours of mediation, only a few thousand pounds separated the parties. But the principals refused to make that final move. Extra value had to be found. That was achieved by a skilful lawyer who recognised that another stakeholder had an interest in the dispute ending. A telephone call secured the final contribution which enabled faces to be saved all round. On another occasion, I sat silent for what seemed like minutes while two key decision-makers looked at each other and tried to work out if the other really meant what they said when they intimated that they could go no further. The gap there was many hundreds of thousands. Gradually, each prompted and probed until they were satisfied that their counterpart was authentic. That gave them scope to reconsider lines of authority with stakeholders outside the room. Here, the money as such was not the defining point. Trust and realism were what mattered.
Preparation in advance. I always try to make sure that the lawyers are working collaboratively beforehand. That may take a number of meetings, emails or telephone calls, to help them jettison some baggage from past dealings or overcome positional starting points. Most however are courteous and professional. Given specific tasks and the goal of helping each other to help their respective clients, and recognising the value of collaborating to gather information, summarise differences, collate essential documents and relay encouraging messages to clients, they move the process forward significantly before the mediation day itself. Just airing differences and potential impediments on the telephone with the mediator present can reduce tension and recalibrate the relationship.