Let go of the client....

One of the most important skills of a good mediator is identifying at the mediation who should meet whom and when. Should there be a plenary meeting, a meeting of lawyers alone, of experts, with or without instructing solicitors? Or a meeting between clients, unsupported by legal teams?

Of course, there are times when the principals in a dispute have such a history of animosity that to meet would be a disaster and the flexibility of using the mediation for ‘proximity’ talks (ie same venue, different rooms) provides the best chance of finding a deal. However, some recent experiences have reinforced my view that in a good many cases client to client meetings can have real benefit.

In one case, a small housing developer and his contractor had not met since the repudiation/breach of the contract and there was a claim and counter-claim. Through the litigation process, the personal connection between these two former friends was broken. At mediation they could hardly face each other at first.

Negotiations did not go well. Settlement prospects looked bleak. However, they and their legal teams were persuaded to let the clients meet away from the battlefield with the mediator as an observer and referee (if required). Their old familiarity was sufficiently rekindled to allow a civilised conversation which resulted in settlement.

So, if settlement looks like a distant prospect or there is a difficult final gap to bridge, trust the mediator’s judgement and let the clients sort it out face to face.