A few weeks ago, we published Parts one to three and four to six of The Mediator’s Log. Here are Parts seven to nine, describing how the mediator’s day progresses towards the end stage:
Creative Problem-Solving: Moving Forward
17.30: The exercise of getting in the claimant’s shoes had been more cathartic than the mediator could have imagined. All the theory about viewing a situation through someone else’s eyes, and the recent books about cognitive traps and confirmation bias and the like, were all very well but if, in practice, the theory fell flat, what use was it? The mediator referred to this material more now than ever before. After all, recent years had seen a proliferation of writing on such topics. And here, once again, at the right time and in the right way, assisting a party to alter his or her viewpoint, even if only for a few moments, enables a new perspective to be taken. The defending client has crossed a rubicon. He now understands at a deep level what had happened. That does not mean he agrees with it. But he understands.
“She’ll need some help to go forward,” he suggests. “A recommendation, some money, maybe a new contract. The money is hard. I can’t see the board being happy about that. But she was good most of the time. I can say that. And I can put it in writing. I’d need to think about a contract. What it would look like. What we can realistically cover.” “Why don’t you chat about that?” suggests the mediator. “I’ll need to talk to my contracts manager back at the plant”. “Remember the agreement you signed about confidentiality,” warns the mediator. This was a grey area – he is keen to maintain the formality of confidentiality but not to let it get in the way. A discussion with a company colleague is perhaps covered by the agreement anyway. “Tell you what, why don’t I say to [the claimant] that you are looking at possibilities and that you’d like to talk to your contracts man. That way I can introduce the topic in a low key way and get her agreement to you doing so. Keeps us all covered. And can I mention the recommendation? I’ll have a short meeting and let you know asap.”
17.45: Back in the defending party’s room, there is an atmosphere of business-like attention to detail. The whole mood has changed. “We can talk about a contract, needs to be short term but it may be enough to get back on the road again. And I can do a small cash payment as part of that contract. Not separate but within the payment provisions of the contract. Makes it more sellable.” “What are the figures?” asks the mediator. What he hears worries him. He knows what is in the mind of the claimant from an earlier remark by her lawyer. “How will that go down?” he asks. “The danger is that you undermine your whole strategy by offering something so low that she considers it derisory and insulting. That could lead her in the opposite direction.” This is a flip-chart moment. He gets up and draws rudimentary lines on the sheet, showing with an “x” and a “y” the dangers of making what might be perceived as unreasonable proposals. He talks about the theory of first-mover advantage, never an easy one as it applies to both sides. Then he sits down and pauses.
“We need to think some more” opines the solicitor. “We can’t afford to throw this away. There’s the other matter to think about…..” There is an anxious glance between client and advisor. A quick moving on. But, once again, in that moment, the mediator realises that there is more going on here than he will ever know. When observers talked about “justice” and the need for the mediator to make sure that “justice” is done, what they often did not appreciate is that there is nearly always more going on than the mediator will ever be aware of. In his view, it could not be a mediator’s job to assess the rightness or wrongness of a resolution, but just to make sure that the process works really well and that clients and advisers make as well-informed decisions as they can. They can always walk away, a point sometimes forgotten by those who would equate mediation with the judicial process. Nothing is binding until….
18.00: “Let’s look at a realistic figure” suggests the mediator. “My impression is that you can go considerably further without in any way doing harm to yourselves. My sense is that even at £x, the claimant will be below anything that she would contemplate.” This is tricky territory. “Impressions” and “senses” could convey ideas based on understandings the mediator had gained from his discussions in the other room. “Is that what she said?” asks the client. “You know I can’t refer to anything said in the other room without permission. I won’t be telling her your figures unless you authorise me to do so.” A mediator’s stock response and such a fine line…
Negotiating Towards a Resolution
18.10: The mediator has checked with both rooms about refreshments. The catering staff have gone home and the coffee, in those ubiquitous flasks, is lukewarm. By this stage, people tended to nibble on biscuits and the sandwiches left over from lunchtime, which were becoming less edible by the minute. The more wary avoided the prawn sandwiches… It is agreed to keep going without a formal break in the hope that progress can be made soon. Mindful that this is nearly always the wish, the mediator nevertheless asks his assistant to remind him about trying to get some pizzas delivered in about an hour’s time. He recalls those other occasions when early evening food had been provided by the venue. This had created opportunities for him to position the key decision-makers next to each other as they ate. In these moments, conversation often led to creative solutions, such as an offer to make a donation to charity in lieu of a contractual claim. Honour was addressed and faces saved by such a proposal. The fact that the principals came up with it over food seemed to give it additional mileage. Ah well, pizza will have to do this evening. …
18.12: Rather than taking the defending party’s proposals direct to the claimant’s room, the mediator needed to take time to find out what the claimant was now thinking after their previous discussion about the risks of not resolving today. Amazingly, it was nearly 90 minutes since their last full discussion. Far too long, thought the mediator, though he had popped in to mention the suggestion that the defending principal needed to discuss matters with the contracts manager – and generally to reassure that the reason he was taking so much time was because progress was being made. He had encouraged the claimant to go for a walk and get some fresh air. She had done this and seemed more focussed now as a result. “I need to move on,” she said, “What are they saying?” The mediator was firm about not being, as he put it, a “mere messenger,” nor did he see himself as a deal broker. He disliked taking offers and counter-offers back and forward, especially if these were at the extreme end of the spectrum. He viewed this as rather unsophisticated negotiation. Indeed, on occasion he had invited a party to convey their apparently derisory proposal direct to the other party. That usually led to further conversation….. He much preferred to draw parties together by managing expectations and helping them to get as close as possible before presenting them with formal proposals.
18.17: “They, like you, wish to see this brought to an end,” he said. “And my sense is that they can move further than you might have thought earlier, indeed further than you might have expected. All that good work that you, your lawyer and your expert did in earlier meetings has had its impact, which is the whole point. Just as you have learned from them, too….”, he added for balance. “Apart from the money side, what value would you place on a short term contract to get you back up and running again? And with a reference that emphasises the positive work you did on the project last year? How would these help you get started again?” The claimant looked relieved. “That could make a difference,” she said. “I really need to get my confidence back. Where would it be? Who for? How long?” “These would all need to be discussed,” responded the mediator, “but if we can get these moving in principle, I can get you round the table with them.” “But the money is important too,” the claimant was again anxious, “I have lost a lot and all these legal costs…..” Nearly always, in these situations, the legal costs became a relevant factor. The mediator had seen emerging deals falter because the legal costs outweighed the sums in dispute, or at least those being contemplated in settlement. Not an easy moment for the lawyers either. One of the conundrums in litigation is that cost and time often obscure the real underlying issues. The mediator was tempted to quote Abraham Lincoln: discourage your neighbour from litigating. Point out that the nominal winner is often the real loser. In other words, victory in court will, in many instances, be a pyrrhic one.
18.30: The mediator now had a feel for what would work for the claimant. He began to talk about how the defending party was thinking, as he had been authorised to do. It was useful to be able to weave in their thinking after hearing from the claimant. The mediator could choose what to say and when. He was not a mere messenger. This enabled him to work with the parties to try and build the best possible solution. Or, as he would often say, ensure that each felt that they had achieved as much as they could. The value of a mediator should be that the claimant should know, for example, that she had pushed the other side to the maximum they would offer on the day, and the paying party should know that they were paying the minimum that a claimant would accept. That was, after all, the key role that a mediator could play, adding something that was sometimes too difficult to achieve in direct negotiations by parties themselves, who could never be sure just how far they could go without feeling compromised.
18.35: “May I take this to the other room?” asked the mediator. The claimant looked at her lawyer. He nodded. “It’s time to make progress and there is nothing there that we don’t want said to them.”
Getting down to specifics
18.37: The mediator paused in his private room with his assistant. This was the time when it was easy to rush things. People were getting tired. A mediator’s adrenalin could pump too fast as the end seemed to be in sight. Many a false dawn…. This was the time when rushing from room to room trying to pin down a settlement could backfire. This was the time when a mediator could be tempted to take over the burden of resolution and implicitly (or explicitly) take on the responsibility for reaching a conclusion. It remained the parties’ problem. They needed to remain responsible for it. It was a fine balance. The mediator had to encourage, cajole, test reality, resist inappropriate game play, be prepared to let them blow it, and yet…. “What do you think..?” asked the assistant. “Let’s see” came the reply.
18.40: “How are you getting on with the terms of a contract? I think we should try to get that worked up before dealing with the money. And the wording of the reference?” The mediator had decided to take the initiative on this occasion in the defending party’s room. “In my experience, it is usually best to deal with the non-monetary aspects first if possible. It is often the case that the money claim is a substitute for other things. Or at least in part. I have seen large claims significantly reduced when other elements are on offer. Value is not just found in the cash. The trouble is that we tend to view these disputes through the lens of what a court can do, which is always going to be more limited…..” He realised that his attempt to be encouraging was turning into a bit of a homily. Not the best use of time at this stage…
18.45: “So, that is what we can do” the client has summarised the position after his further conversations with his contracts manager. “That’s helpful” responds the mediator. “I appreciate that this is not easy. How about the reference?” It is clear that not much work has been done. He turns to the lawyer. “I wonder if you and [the claimant’s solicitor] could have a short meeting and try to come up with a wording? It’s really more than a reference, this will be important for the claimant as she seeks to build a new approach to her business. …. Now, onto the numbers…. One of the problems is going to be costs. Have you any idea what these might be for her?” After a quick discussion, the mediator reveals the total, as he has been authorised to do. There is apparent shock all round. “It is what it is,” the mediator is aware that, in this room, the costs are probably even higher and that the expressions of surprise are a little overdone. “Last time you told me what you can do overall on the figures. My sense is that the claimant will need a good bit more, probably starting with a “2”. But let’s see how we get on with the contract and the reference.”
18.50: “I’d like to take these specific terms to her and invite the lawyers to try and get the bare bones of a reference.” The seed has been planted on the number. It is time to use the other aspects to help lever the parties to a place where they could make choices. “By the way, have you got the resolution agreement in draft? Let’s not leave that until the end.” This is the first time that the mediator has hinted that he thinks that resolution might be in prospect. And he is careful with his caveat. “I don’t want to pre-empt anything and don’t assume that we are home and dry but I don’t want to spend another couple of hours drafting from scratch if you do resolve this in the next hour.” Often, he invited parties to start to put together a resolution agreement quite early in the day. It helped to keep the lawyers (especially if there were a number of them) occupied and focussed on looking ahead to an agreed outcome rather than dwelling on the past.
1910: The short meeting with the claimant has gone well. The contractual proposals seem to be broadly acceptable. The mediator has now called the two lawyers into his room. Ostensibly this is to discuss the terms of the reference. But, in reality, it is to get them talking about the figure which will help their clients complete an agreement. “There is still a bit of a gap” says the mediator. “What can be done?” He is content to let the lawyers chat for a few minutes. This is where skilful and courageous lawyers are able to do their best. Some of the best lawyering in mediation occurred at moments like these. After all, most disputes were resolved by lawyers negotiating like this. The mediator took the view that his role, wherever possible, is to help the lawyers and their clients to regain their ability to negotiate with each other. The mediator’s role then begins to diminish. As ever, there is a balance to be struck. If it was easy, they wouldn’t be here. In reality, however, the heavy lifting has been done to a large extent. There would still be the odd dangerous moment however….
Read Part 10, the final chapter.
See interview series DVDs at www.mediate.com/Views. Access all Hugh McIssac videos here.Hugh McIssac explains how he and others wanted to find a model where, unlike the adversary system, had people...By Hugh McIssac