I have lost count of the number of times a mediation participant has complained to me that something their opponent has done simply isn’t cricket. Often it is from somebody taking part in their first mediation who has fixed ideas about what is and isn’t “mediation”. The problem arises from expectations of a strict procedural process such as a trial. Only a fool would say the outcome of a trial is entirely predictable but the process of the trial can be anticipated with a degree of certainty. Opening speeches, Claimant’s evidence-in-chief, cross-examination and so on.
The mediation process is different; in fact there is not one definitive mediation process. The pattern is often similar but rarely, if ever, the same. You might expect an opening joint session followed by a series of private meetings with, perhaps, one or more further joint sessions. However a good mediator will change and adapt the process throughout the day. The first assessment the mediator makes is “Can we have a joint meeting here?” There are a plethora of reasons why the answer to that question may be no. This flexibility and the lack of rigid precedent and procedure rules call for some accommodation from the parties and their lawyers. Unfortunately inexperienced mediation advocates often respond with petulant sulking or righteous indignation, often threatening to abandon the process. Here are a few things that I have experienced that have nearly derailed mediations.
No opening joint meeting
I did a mediation involving a long-standing family feud between siblings who hadn’t spoken to each other for years and were now involved in litigation. The Claimant was convinced that once they had met and spoken face to face the path to resolution of the conflict, if not full healing of their divisions, would be open. The Defendant refused to meet, cue apoplexy in the other room. The Claimant never got over this rejection and was unable to work around the problem, holding on to their conviction that resolution could only follow a face-to-face meeting. Unwanted Guests
I insist that parties to mediation inform the other side in advance whom they intend to bring along on the day. There is nothing more certain to prevent a mediation starting than uninvited guests appearing. However this can lead to a stand off requiring mini-mediation. One side may demand that such-a-person cannot possibly attend because “that’s not mediation”. I say they can bring whom they want but you don’t have to attend and you can call it off – after all it’s your show – but you have to take responsibility for the consequences.
Late disclosure of documents
I arrived at a mediation once and on meeting the Defendant was handed a hard copy of their position statement. They had emailed it me the night before and wanted me to pass a copy to the Claimant. The Claimant’s team flew off the handle claiming they had been ambushed. There was no cunning plan; the Defendant was simply late producing the document despite my requests. It cost us an hour whilst the Claimant decided whether or not to continue.
Non-disclosure of documents
It is not unusual for parties to say they are not going to prepare a position statement as it is all set out in the pleadings. I explain the difference but to no avail. The response to parties who say they the other side can’t do that is – they can and they have, deal with it. I know it is not ideal but given the quality of most of the position statements I see it is rarely going to be a significant hindrance.
Not making the first offer
Some Claimant’s are fixed on the idea that the Defendant has to make the first offer. When they are met by a refusal to do so their reaction is that procedure has been breached and the whole thing has to be called off. That of course is usually unnecessary but the mediator has to work very hard (nothing wrong with that) to move things along. One of the things she has to do is divorce the party from this attachment to non-existent procedure.
Making no offer at all
Some parties expect that simply by agreeing to the procedure their opponent intends to make them some kind of offer. When the other side refuses to make any offer they are accused of being unreasonable and “not mediating”. They may well be acting unreasonably but they are certainly under no obligation to make an offer. A Defendant, say in a personal injury case, may hold a reasonable belief that they are not liable in law for the Claimant’s injuries. They go along to mediation anyway to find out if the Claimant has anything to say to persuade them to change their view. They would rather be convinced at this stage than during the course of an expensive trial. The mere fact that the Defendant has engaged in the mediation process is not going to make it alter its denial of liability – the Claimant has to give the Defendant cause to do so.
Prepare for the unexpected
It is an essential element of the mediation community’s role to educate everybody attending a mediation to be prepared to respond to the unexpected. We are not a trial – we are at negotiation with fluid and flexible procedures. When the unexpected occurs sometimes the right response is to put your coat on and leave. I have no problem where that is a considered response and not merely a knee-jerk reaction.
(c) Copyright 2010 Philip Hesketh. All Rights Reserved.
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