Getting an elephant and a mouse to dance together

‘The real problem is that they don’t get it.’

Sound familiar?

As a mediator, I find that it is not an uncommon remark. Sometimes, at the core of a dispute, part of the problem may be that parties do not understand where the other one is coming from. They just do not ‘get’ each other. This can be particularly pronounced in ‘David and Goliath’ cases, where one party is a large organisation, like a bank, insurer, or PLC, and the other an individual or small business owner. Mediating these disputes can be a bit like getting an elephant and a mouse to dance together – but that may be what they need to do if they are to come to a settlement. It takes a particular set of mediation skills though. Otherwise it can be messy. Fatal, even, for the mouse.

Where parties operate on completely different scales, there are likely to be huge differences in terms of their interests and objectives – and maybe disparate concerns, too. For the individual it might be about the time a dispute is taking, the stress, the costs and risks involved or the impact is having on the business. For the large organisation, it may be about precedent or negative publicity.

While pleadings can clarify legal and factual differences the litigation process is less likely to address individual concerns or clear up misunderstandings. And if the dispute escalates, misconceptions and fears may further divide the parties. An SME owner might believe that the large organisation is happy to drag out the dispute, when in fact the organisation’s management time is precious and they want to find a solution. Or the organisation’s executives might be concerned about setting a precedent or triggering a regulatory issue, when actually the individual just wants to be treated and compensated fairly and get on with their life.

Sub-conscious prejudices may also be at play. Years ago, a national television broadcaster inadvertently defamed my father. One of their dramas had a character called Hildebrand who, like my father, was an architect, but who was referred to in the drama as ‘that dodgy architect, Hildebrand’. At the time I was a partner in a law firm. We had a specialist reputation management practice and after several conversations with the broadcaster they issued a generous on-screen apology. What sticks out in my mind was my father’s reaction. He was amazed. He had simply never thought it possible that he would be able to get a broadcaster to listen to him, let alone treat him fairly.

In mediations between organisations working in the same sector a mediator’s specialist sector expertise can be the primary consideration. However in David and Goliath disputes a more crucial skill is probably the mediator’s ability to help parties bridge gaps.

It is not just about ensuring an even playing field, the smaller party may be resistant to appointing an industry ‘insider’. A good mediator is used to dealing with large organisations and understanding how their business model works and what may or may not be possible. Equally, you want someone accustomed to dealing with individuals and SMEs, who also speaks their language and understands how their business operates and what they need.

As well as knowing how to gain the trust and confidence of both parties, the mediator will recognise the different financial and emotional issues at play and be able to help finesse possible solutions and make them more palatable.

I have spent my career, both as a deal-maker and for the last 14 years as a mediator, helping UK and international parties big and small who have completely different commercial interests, cultures and values resolve their differences and conclude binding deals. It is only recently though that I had the lightbulb realisation that mediating David and Goliath disputes is a specialism in itself.

Not least because, left to their own devices, elephants and mice are not natural dance partners.