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<xTITLE>Dealing with VIP Privilege in Mediation</xTITLE>

Dealing with VIP Privilege in Mediation

by Rukmani Menon
February 2021 Rukmani Menon

Working with egos and emotions is considered an obvious task for a Mediator and this responsibility is heightened when the parties involved are high profile individuals or global brands. I was recently appointed to mediate a contractual dispute between a celebrity and a multi-national brand. From the beginning, both made it clear (through their attorneys and power of attorneys) that they were “very important people” in their own rights, and therefore, will not be seeking to compromise on what they regard as righteous and reasonable. 

My task was cut out – I had to learn to deal with their demand to maintain their brand image and self-respect, without having direct access to their personalities. 

Having the parties sit face-to-face, either virtually or in-person, and engage in frank and open conversations is a significant feature of mediation. More importantly, private communication between the parties and the Mediator is crucial to breaking the deadlocks in mediation. As a mediator, it becomes difficult to understand if the power of attorney has grasped the nuances of the process and is able to explain the same to the party they represent. At times, the lawyers threaded cautiously and weren’t ready to engage in some hard reality-testing with their clients, lest they upset them. This is where it can get frustrating for a mediator, as you are not allowed access to converse with the decision-makers in the dispute. 

I attempted to understand the reason for their non-participation - was it their ego or reputation that prevented them from participating in a private session or getting on a phone call? Or was it true that they were “shy” individuals? Though the lawyers were supportive of the process and participated in good faith; as a mediator, I didn’t enjoy the satisfaction of witnessing the raw emotions and responses to the mediation proceedings. Being cut-off from that communication channel made it difficult to break through an impasse. 

Another difficult aspect while mediating a case involving celebrities and brands is that they are extremely paranoid about confidentiality. Despite constant reminders and assertions about the privacy and privileges of confidentiality, there is still an air of uncertainty and hesitancy of participating in full disclosure. Once again, these fears can be put to rest if the ‘VIPs’ engage with the mediator and experience first-hand the nuances of the process.

Availability is another huge factor that affects egos in a high-profile mediation match-up. It is important to get the parties and lawyers to be disciplined about scheduled meetings and timelines for tasks to be completed. Inability to keep to deadlines by either side leads to frustration and the feeling of being disrespected, adding to the drama of the core conflict. It should be explained to the parties & the advocates at the outset itself that keeping time schedules is very important in mediation or else it could drag on endlessly like any litigation, which defeats the very purpose of the parties coming in for mediation.

Further, in connection with the above point of getting things moving quickly to avoid stagnation of interests, a mediator has to deal with parties making ‘U-turns’ and dishonoring prior commitments. After the many hardworking hours spent on reaching a consensus, I had one of the parties calling off the deal as they didn’t want to look weak. The element of “done nothing wrong” crept up at the final step and it set back all the work done to move beyond “right” towards “interests”. It was apparent that the process of mediation wasn’t approached in the right spirit and the fact that the mediator had no access to change that attitude was unfortunate. 

The lesson learnt here is to clearly communicate to the lawyers, while convening the mediation, that a mandatory private session with the clients is optimal to best practice and a satisfactory experience of the mediation process. 

Biography


Rukmani Menon is a Mediator and Director at CAMP Mediation, Bangalore. Rukmani has been mediating commercial cases relating to Real Estate, Contracts, Consumer Disputes, partnerships, Debt Recovery, Winding-Up and Family Disputes including Family Business Disputes, Family Partitions and other settlements, Divorce, Child Custody. Rukmani is an empanelled mediator with the UNDP Global Mediators Panel for workplace disputes.



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