These days, I seem to be saying this a lot. Not out loud, but in my head. It seems nobody wants to have a conversation on the phone anymore. It’s all texts and emails. And, worryingly, this pervasive trend is seeping into the world of mediation.
On several occasions, while awaiting documents in order to prepare for a mediation, I’ve picked up the phone to enquire where they might be. ‘Have you agreed a bundle?’ I ask the solicitor hopefully. ‘No,’ I’m told. ‘We’ve emailed the other side with a draft index but we haven’t heard back from them yet.’ And that’s when I hear the voice in my head – ‘Why don’t you just pick up the phone?’
This lack of verbal communication seems entirely inefficient to me. How much quicker things could move on if the two solicitors would simply get in touch with each other to discuss which documents are going to be useful for the mediation bundle?
Communication leads to collaboration
It’s not just about agreeing a bundle, of course. A phone call also allows the opposing solicitors to get a sense of how things might go with the case. The conversation might well move onto questions such as ‘Who have you got coming to the mediation?’ or ‘Do you think it would be helpful to have the experts/counsel in attendance?’ Or the solicitors might share thoughts about the dynamics of the mediation and the advantages or otherwise of a round table plenary meeting at the start of the mediation day.
A collaborative approach to settlement is always of greater benefit to the clients than confrontation. Inter partes correspondence is by nature confrontational. Oral communication at an early stage can often generate collaboration on the mediation day itself.
Tuning into the tone
As a mediator, I find the telephone extremely helpful in my work. It’s important for me to understand what the dynamics between the parties will be like on the day – and a phone conversation can quickly establish the likely scenario and mood. I’m able to ask the solicitor about the relationship with their client and also about the relationship with their opposite number. Has it been co-operative and collaborative or rather testy and difficult?
Even with the vaguest of responses, the tone of a voice on the telephone can speak volumes about what might be expected on the day.
Mediation and why it’s good to talk
My fear is that modern-day reliance on texting and emailing will cause an arrested development in communication. People will lose the desire, and perhaps even the confidence, to speak face-to-face. And if that’s the future – how will it affect mediation?
It’s important that people are able to interact with one another during mediation. The mediator isn’t the centre and focal point here. Mediation exists to give the parties in dispute with one another the opportunity to take back some control over the litigation process and be part of the action. But how will they make the best use of mediation when the art of communication eludes them and/or their advisors?
Already there are occasions when I find I’m almost coaching parties as to what they might say or how they might want to say it. So perhaps the nature of mediation will change, and eventually the mediator will become the focal point. It’s not what I signed up for – but one has to move with the times, I suppose.
In the meantime, if you need my help you’re welcome to contact me by text or email… I can always call you back!
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