I find that it is often helpful to set the scene in mediation by bringing together the participants over breakfast: this gives an opportunity for people to mingle informally and for me to say some words about what we are here to do – and how. It allows people to meet counterparts and opposite numbers; to see who is present and to commit to joint problem-solving. Sometimes, I invite the principals – or the lawyers – to stay behind for a private chat afterwards. All sorts of interesting (and helpful) possibilities can arise.
The setting for mediation is important – I have conducted mediations in hotel bedrooms and these are not always ideal! We really benefit from light, space, comfortable seating, good food, opportunity for fresh air and exercise and access to phones, the internet, stationery, flip charts. Most law firms now have good facilities and good hotels or business centres also work well. For the relatively small outlay, the advantages are pronounced.
Increasingly, I find that it is valuable to ensure that those in mediation are treated with, and give each other, respect and courtesy. It is quite extraordinary what an impact acknowledgement of someone else’s position can have (even if you don’t agree with it), and how helpful to moving forward is recognition of the effect on another person of an adverse event (even if you don’t accept liability for it). That’s not a soft option but often the essential prerequisite of being able to explain why you cannot accept or agree with their viewpoint.
The mediator is often described as a “neutral”. I am less sure about that term now. Perhaps we are impartial, or more likely, “multi-partial”. In other words, our role is to work hard to help all parties to understand what is going on and to reach an agreement if possible. Sometimes we work with those with whom we have worked before – as long as that is made clear in advance to others, who can choose whether or not they wish to proceed on that basis, we often find that knowing someone helps to move things along more quickly.
It is really helpful if advisers work collaboratively on the terms of an emerging resolution or settlement agreement in advance. This can become almost self-fulfilling in the sense of helping to build momentum and confidence – and may also remove the burden of lengthy drafting sessions after a deal has been reached. It is also helpful to decide in advance what is needed to record an agreement: a full contract? a joint minute? an email exchange? a letter?
The urge to move quickly is real. Generally, however, mediation benefits from time being allocated to enable parties to download, explore the real issues and generate options for a solution. But many resolve quickly, some in a few hours or half a day. Others need that extra day – or reflection time. Matching momentum with adequate groundwork and balancing the whole exercise requires flexibility and tolerance all round.
We find all sorts of ways to be imaginative in mediation. Reversing roles, changing seats, summarising by parties, mock tribunals with senior executives, straw men, decision trees, handling diversity of views within one team – all of these can be used creatively to break an apparent deadlock. An adviser’s job is often to support the mediator as he or she works at the margins with clients.
There is a whole psychology and strategy around making offers and proposals. It is not a weakness to go first; often, it will be a strength. Going first may help to generate concessions or movement in your direction. But the first move should usually be realistic – if thought to be derisory, it may well prompt a polarising response. Holding back on the money side can be a useful tactic; address other issues first or in parallel. Generally, you need to be constructive and to look for gain : gain at this stage.
Never Give Up:
Perseverance is a central trait of the best mediators – it should be for the best advisers too. Remarkable things happen if you keep plugging away – most people want a resolution and just need help to get there. Part of that help is to appreciate that the darkest moment is often followed by the light of a new dawn. Self discipline and sustained energy are needed at tough times. Even after the mediation day, following up may be critical. Recently, a mediation settled two years after the initial meetings – just because we did not give up. Usually, a further meeting or telephone conference call is all that is needed.
We know that statistics continue to show an 80% – 90% “success” rate for commercial mediations. That usually means a complete resolution of the dispute on the day of mediation or soon after. However, “success” may also be to narrow the issues, test the arguments, focus on key points or generate an action plan for later implementation. All are valid conclusions. One lead negotiator leaned over to his opposite number at the end of a long negotiation in two days of mediation and said: “As important as the outcome is that we now understand where you guys are coming from”. Whatever the outcome, don’t let it fizzle out… finishing well is really important.
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