This article is a bit tongue in cheek, but as I sat down to write something for the Mediation sector, I thought that an A-Z might be quite interesting.
This one did make me smile when I looked up the dictionary meaning as “Daring, bold and with a confident disregard for personal safety”. I am glad to say that I have only personally been threatened in one Mediation, when I asked the question that had to be asked of one of the parties, and as he slammed down the cheque in full and final settlement of the entire claim, he then pointed out that I was lucky not to be leaving by one of the windows!
See above. However, Mediators must be brave in other areas. It can be brave enough to ask the questions at the right time, knowing that perhaps people do not necessarily want to answer. It can be brave enough to walk into a room and put forward an offer that you know the other side are going to go ballistic about. And even if you cannot be brave all the time, it is important to at least exhibit the fact that you are.
Emotions are going to run high in most Mediations. It is important to ensure that the parties always behave in a civilised way. This does mean occasionally having to lay down the law regarding language and body language. I do recall one Mediation where the parties refused to even sit in the same reception area on arrival, let alone agree to a joint meeting. However, at the end, after they had settled, they did go to the pub opposite my offices, which was a nice way to end what had been a long but successful day.
This is also a link with bravery. Sometimes you have to put offers forward, not knowing whether they will necessarily be acceptable. You have to dare to dream. You have to try and think differently.
One of the most important parts of the Mediator’s role is to keep the parties looking forward (as that is where settlement is) as opposed to backwards. I know one Mediator who coined the phrase that his role was to ‘get the parties out of the warehouse of resentment’. I have since pinched that phrase as I think it is quite important and for some people it can be a very large warehouse full of resentment and we must minimise that. I also think it is important sometimes to allow people to retreat over a golden bridge. They may find they were in the wrong. They may find that their case is not as strong as they thought it was. But they have to be allowed to get out of a situation with dignity, and this requires encouragement by both parties.
The F word is very important. Sometimes acceptance that something went wrong and to forgive the other party is Mediation gold. This is particularly so in the case of neighbour disputes where the parties will continue living next door to each other. A simple apology can hold a lot of credit and go a long way to resolving a matter.
Not being selfish. Not being small-minded. Being generous can be helping build the golden bridge to which I have referred to above. It does not necessarily have to be generous in giving lots of money to settle a dispute. Sometimes it can be looking at helping settlement in other ways.
Mediation can be, for the Mediator, sometimes very lonely. Sometimes, believe it or not, the parties are not helpful. The lawyers might not be helpful. I recall one Mediation, where the lawyer told his client that at trial, he could expect to receive 100% of the legal costs that had been incurred. Apart from being “S for stupid”, it was not particularly helpful. It was fundamentally wrong. It is then difficult to challenge these matters, other than to ask questions of the fact that it must be a very unusual court to award 100% of costs, as in my experience, I have not known any other court to do that. Hopefully, the client picks up the point.
It goes without saying, the Mediator is independent of the parties, that is why they got the gig in the first place. It is important to remain independent. I remember attending a training session many years ago with an American Mediator, who warned the audience of Mediators to be aware that “if you are not the party trying to manipulate the Mediator, the other side are”. It is very interesting to be aware of the fact that parties will try to manipulate you as a Mediator, so you need to be aware of this and make sure that at all times you are independent.
Mediations can take a long time and they are inevitably going to be stressful. It is important to maintain a jovial personality. Simply because the parties will inevitably be left for periods on their own. You must try and maintain spirits and keep them high.
It is important to be kind throughout the process. Kindness costs nothing. Again, it is a stressful process and people will need time to absorb what is going on and accept they are being moved to a position they do not necessarily want to be moved to. Being kind and helping them to accept some compromise is very important.
It goes without saying, that the process must be a logical one. Many Mediators want to approach things in a logical way. However, sometimes things do go off on a tangent and it might be necessary to depart from the original plan and let somebody have their moment. I remember one particular case, where a party to a Mediation had to tell me how bad life had been living in the house following negligent building works. It seemed as though this lady spoke non-stop for 35 minutes without drawing breath, and there was no way I could interrupt her. She had to be heard. Once that had happened, she was then able to move forward.
You obviously must try and maintain a mature persona when dealing with Mediation. Some of the parties you might find do behave like children. However, it is important that the process is controlled.
Again, this links to being kind. It does not cost anything to be nice. Sometimes it is useful to find out about the individuals themselves, their families, if they have children that are going to be advising them from afar or on the phone, what they do for a living. You might find that you do have things in common that can sometimes unlock difficult situations. I remember in one Mediation, I mentioned that I spent my formative years at a school in Wimbledon. It then turns out that I and one of the party’s knew one of my old teachers. It broke down a little barrier. It was a moment of discussion that did not actually relate to the Mediation. Sometimes you need those little windows where you just act a little bit differently.
Sometimes it is important to keep a careful eye on what is going on. Are people suffering? Are they getting tired? I remember in the longest Mediation I have ever conducted (14 hours), one of the parties was feeling a little bit poorly. I walked round the office until I found the office fruit bowl and bought it back in to the meeting room (it was 10.00pm at night and everybody had gone home). We needed to keep energy levels up as we were approaching the settlement.
Again, you must have staying power in some Mediations. My shortest Mediation is 40 minutes and the longest is 14 hours. I always tell each party – please do not try and break a new record one way or the other. I do recall on one occasion, one of the lawyers got up to go at 5.00pm, even though the matter had not settled. His view was he was taking the train home and was leaving at that time, even though his client wanted him to stay. Clear the diary. Make sure that nothing else can necessarily get in the way of a settlement. I am not sure getting home for tea was necessarily that important.
On many occasions, saying nothing is the right thing to do. It might be just after an offer has been put to a party. It might be after a piece of evidence has been handed from one room to another that blows a hole in somebody’s case.
One of the Mediator’s jobs is to make sure that the parties are reasonable. One person’s definition of reasonableness might not be the same as another person’s. However, it is necessary that the parties are reasonable. I do not particularly like the phrase “win win”, I prefer to use the phrase “share the pain equally”, but inevitably reasonableness is required if you are going to get to a settlement.
Again, being aware of the pain the parties might be experiencing is important. As a Mediator, you will probably have only dealt with a case for three or four days. You will have received the papers, read them, prepared some notes then attended the Mediation. In many cases, particularly neighbour disputes, parties will have lived with this problem for years. It will have been an issue that has affected them and their families. It is always important to be sensitive to this.
I remember one case early on in my Mediation career, which involved an accountant suing for his fees. I went into the accountant’s meeting room and said, “I assume this is all about money”. The accountant hit the roof. It turned out to be nothing to do with money at all. Bringing the litigation for his fees was what had initially started the dispute. However, it had escalated into the fact that the other party was saying that the individual was not a very good accountant.
Important to read the papers, understand the parties, make sure you get the names right. I recall as a litigation lawyer, bringing in a Mediator, and not only did he keep getting the client’s name wrong, but my client was also less than impressed when he thought he was the other party. It took about 30 minutes to get that back on track.
The Mediator must understand the issues. They must understand the parties. They have to understand where they want to get to and how to get them there.
Trying to put together suggestions and see what an outcome might look like sometimes requires vision. I am a great fan of ‘possibility thinking’. What might be a possible settlement? It has not necessarily got to be realistic at the time it is proposed. But it might become realistic as the matter goes on. It is sometimes interesting to get the parties together in front of a whiteboard and ask them to put together what all of the possible outcomes might be and abiding by the two C’s – no criticism and no commitment. If you can get the parties to debate what might be possible solutions, it can sometimes shorten a Mediation dramatically.
W: Why is there a dispute.
Bringing experience to the Mediation sometimes is helpful. I have mentioned neighbour disputes on several occasions. I do quite enjoy dealing with these kinds of matters. Usually because unpicking the motivations for the dispute is quite fascinating. Quite often it is never about the fence or the leylandii tree, it is about what caused the neighbours to fall out in the first place.
Every Mediator is looking for the x-factor in the Mediation. You will not necessarily find it in the parties’ Position Statements. You will not necessarily find it in the joint meeting. But if you keep picking away at the issues in the sessions with the parties, you can sometimes find the x-factor solution or find the x-factor item that is causing the log jam – see Z for Zany.
Y: Youthful & Yoda
Whilst I am not suggesting that every Mediator needs to be under the age of 35 (most of us would be out of a job if that were the case), we do have to maintain the pretence that we are youthful. Mediation is tiring. Whilst the parties do get time off from individual meetings when the Mediator is not in the room, the Mediator invariably is shuffling from one to another and does not get much of a break.
Another Y – Quotes from Yoda in Star Wars. As we all know Yoda is the font of intergalactic knowledge.
“In a dark place we find ourselves, and a little more knowledge lights our way” and “Pass on what you have learned.” – I hope that this article has imparted a little knowledge
Again, coming up with ideas that might result in a settlement may sometimes appear very odd. Very early on in my Mediation career, I was mediating a dispute between an English company and a German company. There were several issues. However, company B could not admit they were wrong. However, they continued to agree to trade with company A after the Mediation and pay more than the list price for goods to enable company A to recover the sums it was claiming. This way company B did not have to admit that it was wrong at all, it merely had entered into a new contract. The solution sounds a little odd now, even when I am dictating it for this article. However, it was a zany idea, but it worked.
Whatever qualities parties look for in a Mediator, the above I hope gives a good ‘starter for ten’, or rather a ‘starter for twenty six ’. Every Mediator is different. Every Mediator has their own style. Finding a style that works for you or your client is important.
Shaun Jardine is a Commercial Mediator and a Partner with Brethertons Solicitors.
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