The Mediator’s Log: A Mediation Story
The Day Commences: Engaging the Participants
0845: The mediator arrives at the venue, the office of one of the lawyers. These days, few parties seem to mind where the mediation is held, even if the location is that of the other side’s lawyer. More important is that the environment is comfortable and that the catering is good.
0846: The mediator’s assistant is already here. She is able to brief the mediator on the room allocations and inform him that one of the parties has arrived. More importantly, they reflect on the late arrival of an expert report from one party the night before, wondering how that will affect attitudes in the other room. They speculate a little on how long the mediation may take but quickly remind themselves that mediation is like the proverbial piece of string…. and that it is impossible to predict the outcome or the timescale. The mediator reminds his assistant that the more they focus on the process and the less they worry about the outcome, the more likely it is that a satisfactory resolution will ensue. Easy said…..
0901: In the corridor en route to the first private meeting with the claiming party. The mediator pauses and glances at the agreement to mediate to remind himself of the names of those attending. Remembering names is crucial and he often draws a mind-map of the players as an aid. But, occasionally, even that fails and he mixes up the names just at the wrong moment. An occupational hazard in a fast-moving day, where little things can make a big difference….
0902: Knocks on the door and enters. The atmosphere is slightly tense. That late report has had an impact on the lawyers in particular. The mediator looks around the room, finds the client and extends a hand. She is anxious and the mediator knows that his first task is to reassure. Building what the experts call “rapport” is the foundation for any mediator. If the client trusts the mediator and his or her ability to handle the day’s discussions effectively, the whole process has a greater prospect of a successful outcome. The mediator introduces himself and his assistant to others in the room. He discusses briefly the late arrival of the report with the lawyer in charge of the case, a fairly senior litigation partner. His objective is both to recognise the inconvenience caused and to encourage a positive view of the fact that the position is now clearer. But there is no doubt that, as the latest in what is perceived as a series of impediments, this has not helped. The lawyer is concerned about whether he can properly advise his client. The mediator suggests an early meeting with the lawyer for the other party.
0909: The main conversation in this initial meeting is with the client. She is keen to explain her circumstances and the impact on her life, job and future of the events on the day in question. The mediator listens intently. He says little at this stage and uses the conversation to reaffirm the confidentiality of any discussions in that room, knowing that this will have been covered already by the lawyer who has considerable experience in mediation. When pressed for a comment on the behaviour of the other party’s chief executive, the mediator reminds the group that his role is not to judge, pass judgment or offer a view. The client is clearly upset, not just by the events of the past but by the uncertainties of the day and the strangeness of the situation. The mediator explains how the day may unfold and makes clear that the client does not need to do or agree to anything with which she is not happy.
0924: There are some formalities to cover. This includes the question of decision-making when it comes to the crunch later in the day, as almost inevitably it will. Is there anyone else with whom the client needs to speak? If so, who and how will they be contacted? They discuss timing and whether anyone has any time pressure later in the day. The financial expert has a flight to catch at 6.30. Hopefully, his presence will not be required by then anyway though, as they have often invested a lot of time in the client’s case, many experts like to be there until the end. That is not always a good thing if their influence is disproportionate…. Everyone else is able to stay for as long as it takes. The mediator encourages the lawyers in the room to begin thinking about what might be included in any resolution agreement. He reminds them that there is nothing worse than starting drafting from scratch after agreement is reached.
0927: That other document, the agreement to mediate, needs to be signed. It has been circulated, revised and checked in advance by all concerned and the senior lawyer confirms that all those in the room can sign. The mediator thanks everyone, checks whether the client has any other questions and leaves, heading for the next room……..
10.03: Time for the gathering of all participants. The mediator’s practice is to bring everyone together in one room for an informal meeting, some food, mingling and scene-setting. The mediator chats to his assistant and reflects on the purpose: humanising the process is important for people who may not have met before, or who may have formed views about their counterparts on “the other side”. For clients, it can be a difficult moment (and can never be forced) which can lead to a sense of relief, acknowledgement or at least recognition. The last time the clients met before today’s mediation was highly stressful for both.
10.11: The mediator taps a glass and begins what he customarily describes as his “carefully prepared, spontaneous, improvised comments”. “Firstly, thank you all for coming …. This is not an easy matter….if it was, we wouldn’t be here……the important thing today is that, for this to work, you need to help each other….the paradox is that it only works for you if it also works for you” he directs his remarks to the clients particularly. “This is a great opportunity…. Later in the day, you will have choices to make, ultimately, it will be entirely up to you … I encourage you to make only one assumption today: that everyone is trying their best.” He knows that this is a bit of a set-piece. He also knows that it is a useful way to mark the transition from the opening stage to the next series of more in-depth meetings.
10.17: Time for a break: first though, the mediator has asked the clients to stay behind and meet privately with him. This is one of those occasions when the lawyers are content for this to happen, judging that the clients can handle this without support. The clients sit, rather awkwardly at first, side by side. The mediator gestures with a hand and the “defender” client begins…..”I am glad we are here. I really want this to get sorted today. This should never have happened. I wish we had had this conversation a year ago….. but, when you did that to us……” The atmosphere changes…..
Exploring what it’s about
10.18: …In that moment, the mediator has to decide whether to intervene or not. On such judgments could the success of the day depend. He has already undertaken not to allow the short meeting of clients to become tetchy, assuming that his presence would provide a check on any tendency to reopen old wounds. He chooses to remain silent, watching intently as the claimant reacts. “It wasn’t my issue…if your team hadn’t botched the job initially…..” A pause: “Look, let’s not get into that now. That’s not why we are meeting here.” “OK, you’re right ….. As I say, I want to get this sorted.” “So do I, we need to move on.” The mediator breathes an internal sigh of relief. The clients have corrected themselves, at least for the moment. It is far better this way. The whole point of the mediation process, after all, is to enable the clients to take responsibility wherever they can. This is not always easy, as some clients like to have their lawyers lead and do not wish to be exposed. Some lawyers are protective of their clients. There’s always a balance to be struck.
10.22: The mediator senses that the purpose of the short meeting has been achieved: a re-engagement of the two key players and, apparently, a common understanding of the primary purpose of the day. Sometimes, such a meeting can go on for a considerable period. On this occasion, it seems better to take stock now. He summarises the position: “It’s not unusual for this sort of thing to happen. It is unsatisfactory for you both but I see this frequently. The key now is to explore the options for a resolution. Your lawyers are here to help and you have expert advice too. For the first part of the day, we’ll have each team set out how it sees things and what needs to happen. We’ve agreed that the claimant’s team should go first and then the others can take a break and consider what has been said before setting out their picture. I’ll come and see each of you in your rooms first, in about five minutes.”
10.25: After a quick comfort break, the mediator returns to the main room to chat to his assistant. “What do you think?” he asks. “That was interesting,” she replies. “I think there’s quite a bit under the surface that might spring up again.” The mediator agrees. He knows how volatile the situation might still be if the clients think that the other is not really making an effort or is seeking an advantage. This is where the expertise and common sense of the lawyers is really important. Lawyers face a number of choices: one is whether to be wise counsel to the client, acting as a modifying force if the client gets upset or angry, or to back up the client forcefully and reinforce any feelings of hostility. The mediator remembers a speech a few years back by Sir David Edward, then judge in the European Court of Justice, when he observed that the biggest risk to lawyers is over-identification with the client. “We’ll go and have a quick chat in each room”, he suggests……..
10.45: The morning is moving on. It has been agreed that, at 10.55am, everyone will gather in the main room for the claimant’s team to make a presentation. The room is laid out as a board-room with one long table and chairs on either side. “Hopeless”, murmurs the mediator. He and his assistant set about unhinging the tables and moving them into a rather ramshackle triangle. A bit of adjusting and re-allocation of chairs and the job is done. They discuss who will sit where. The physical dynamics of what is known in the business as a “joint meeting” are important. The plan is to enable the claimant’s team to sit in such a way that they can easily address the other team, without doing so directly across the table in a confrontational manner. Parties often poke fun at the mediator for this furniture rearranging but usually come quickly to appreciate the benefit which a more open arrangement brings.
11.01: “Let’s get started.” All the participants are now in place. The mediator turns to the lawyer for the claimant. “Peter, you are choreographing this I think. Do you wish to start? Just a quick word to the others. I’d ask you to listen to what is being said. Listen for something new. Don’t just think about rebutting. You’ll get your opportunity in a while and this is an opportunity to understand where Peter and his client are coming from today.” The mediator has already talked privately to the defending team about the importance of appearing to be interested, making eye contact and acknowledging the presence of everyone in the other team. The benefit of the short private meeting of the clients is now clear: the awkwardness between them is at least reduced and it is easier for them to focus on what is being said.
11.05: The lawyer commences. His first point is about the late report. The mediator immediately realises that he has forgotten to convene the meeting of the two lawyers which he had proposed in that first meeting nearly two hours ago. There is a bit of friction which might have been avoided had he brought them together privately. The mediator is annoyed with himself but the moment has passed and, fortunately, the defending lawyer acknowledges the inconvenience and explains that his expert had been away on holiday until three days ago.
11.08: It has been agreed that the claimant will speak. She begins and it is clear that she is struggling with having to recall the events of several months ago. As her voice falters, there is a different kind of tension in the room…..
Exploration Continues: Getting to the heart
11.09: “This has ruined my career and family. I had a solid professional role and a really good future. I have had to put everything on hold. I have been demeaned and humiliated. The cost to me is ……huge. I did everything I could. The Department wanted a fall guy and they chose me. I had warned about the time pressure. But no-one would listen. I stood up and was side-lined as a result. I went out on a limb and got the contract signed. You can’t run a business like this.” The mediator wondered if all the careful planning so far was about to go out of the window. And yet, this was exactly what she felt. Mediation is not about pushing under the carpet what needs to be said. Indeed, mediation is often represented as akin to having your day in court, except in a way which would be unlikely in a court under the conventional conditions of examining witnesses.
There was more scope here to say – and hear –what needed to be said – and heard. What this situation really tested was the skill of the lawyers in managing the expectations of clients and the mediator’s careful steering beforehand. The defending party had been advised to expect this from the claimant. Their reaction was crucial however…..
11.21: The claimant’s lawyer had finished delivering a measured and yet direct analysis of his client’s entitlement and the dangers to the defending team of not reaching agreement today. His experience in advocacy had come through, but not in an adversarial way. He had carried out his preparation meticulously, assessing the strengths and weaknesses on each side. He had not sought to hide the risks to his client. Indeed he had played up the risks to all concerned. By doing so, he turned what might be thought to be his client’s vulnerability into a positive. Be in no doubt, he had said, that the consequence of not resolving this will be bad for all concerned.
11.22: In the earlier days of mediation, convention had led to both parties making a “position statement” in the opening “joint meeting”. Often, this just involved a forceful repetition of what was recorded in writing already. This mediator, in common with many others, reckoned that this tended simply to reinforce the antagonism and polarisation which had brought parties to this point in the first place. So, on this occasion, he had already flagged up that a break would occur when the claimant’s team had set out their stall. “Ok, thanks for the courteous way in which you have listened” he looked at the defending team. “And, Mrs A, thank you for the way in which you spoke, along with your lawyer. As I mentioned before, we are going to take a break now. We’ll return to this room to hear what Mr B and his advisers have to say, not as a rebuttal but to build on what has been said already. Any concerns at this stage? Ok, please go back to your rooms. I’ll check with both rooms shortly. ”
11.25: The mediator asked his assistant for an assessment. “That was just like the role plays in the training course,” she said. “Everyone says that”, came the reply. “In reality, I guess there are only a limited number of ways in which humans react to each other in conflict – all that changes are the facts and context.” He had heard somewhere that there are four or five major themes in all literature, the human condition being universal. “We’d better go and see how the defending folk are getting on”.
11.28: The atmosphere in the room was more relaxed than the mediator might have expected. The participants had a general reflection on what had happened and then moved to how the response would be handled. The mediator knew that it would be very easy for this room simply to try and refute the allegations made. Even done courteously, that might not work. Time for AA, RR, EE. This was one of his most used coaching tips, simple yet effective to engage people who genuinely needed to be valued and have their concerns acknowledged. Time for the flip chart……
11.48: Later than anticipated, but necessarily so as the next meeting was an important part of the first stage of mediation – and its conclusion – the parties reconvened in the plenary room. But there was one key person missing…..
“Our client has decided that she does not want to be in this session”. The claimant’s lawyer was slightly sheepish as there had been no hint of this ten minutes ago when the mediator checked with her room. “She feels that it will be too much”. The mediator knew that challenging this in front of the whole room would be insensitive. In any event, he always said to those concerned that they did not have to do or say anything that they did not wish to. It was the claimant’s prerogative not to take part. And, yet, everything had been planned so that she could hear what the other party had to say. And had been planned to help everyone, including the claimant, to move forward. That was the point of AA, RR, EE.
11.54: The mediator knocked on the door and moved to the seat nearest to the claimant. “How are you doing?” he asked.
Read Section 2 here.
I. Antecedentes. La Comisión Norteamericana para la Igualdad de Oportunidades en el Empleo (CNIOE) hace cumplir varias leyes federales que prohiben la discriminación en el empleo basada en la...By Walter A. Wright