Reflections on 30 years of mediation

As we continue to celebrate our 30th birthday, IPOS founder Mark Jackson-Stops looks back at three decades of mediation and some of his learnings along the way.

 

Dealing with control freaks

How often have I entered a break out room to introduce myself only to find that Counsel is firmly planted at the head of the table in a crowded room. He (usually it’s he) has established a dominant position from which he can control events, even controlling the client who might be slightly in awe of this barrister they’ve rarely met.

It took me some time to have the confidence and to develop techniques

to handle such a situation.

Ultimately the client must be empowered and decide the course of the negotiation.

 

All parties should have a voice

I once co-mediated a large subrogated property loss claim where a massive warehouse went up in flames exacerbated by the sprinkler system being out of commission without notice given. There were three claimants and five defendants being amongst others the estate management company, the sprinkler system manufacturer and, at the bottom of the heap, the local plumber who’d been instructed to repair a leaking joint in a supply pipe.

At the opening joint session attended by 48 people, some from across the Atlantic, each party said its piece in predictable terms until it was the turn of the plumber. He stood up

and said: ‘Looking around I see that I’m the only person in the room who isn’t being paid to be here and the only person at risk of losing their house.’

The impact of that statement was significant and the opportunity for the plumber to say his piece was important to him.

 

Being unafraid to take risks

Learning in mediation never ends.

I recall a case involving four siblings in a major farming and business partnership. One of them wanted to leave and the other three wanted him out as they thought he hadn’t been pulling his weight. The remaining partners came with three accountants, a business adviser and an agricultural valuer, as well as three solicitors. The leaving partner had two solicitors, a land agent and two accountants.

During the day progress was made but the mediation was adjourned in order for accountants to meet and exchange further information. Unusually, I had given in to the solicitors’ wish to avoid a round table session.

In my personal post mortem, I realised how frustrated I was that I’d spent the day largely working with the professionals and finding it difficult to engage with the parties themselves.

Prior to Day 2, I canvassed with the solicitors that we should start with a meeting of all the siblings without any of the professionals. It was high risk, but there was nothing to lose. In the event, it worked well – the siblings met, went back to take advice, came back to meet again with me and so on throughout the day.

Of course there were heated moments, but each side had the chance to speak and to be heard and a number of misunderstandings were ironed out.

 

My plea for a plenary

I notice an increasing trend for lawyers to question the need for such a meeting. ‘Waste of time,’ say some. ‘We’ll only hear what has already been said in the position paper/protocol correspondence, etc.’ There may occasionally be a misguided fear that there’s risk in exposing their client to the other side.

There are of course times when the plenary is indeed inappropriate – for example high-temperature litigation between siblings in inheritance and probate cases. Such cases are rare, and the plenary meeting generally yields useful outcomes. Experienced teams understand that it’s an important opportunity to set a collaborative tone for the day and to ensure that the parties clearly understand each other’s cases expressed in a non-combative way.

I’m aware that in California and perhaps other parts of America, such meetings are resisted by legal counsel, and mediators have to go along with this or risk losing future appointments. In my own experience, the Northern Irish bar won’t agree to plenary meetings and I’ve had to substitute ‘meet and greet’ sessions in the hope of converting introductions into substantive conversations – with not a lot of success, it should be said.

To me, and I know to many mediators, the plenary meeting is an essential part of the process

– and mediators should firmly resist the creeping trend towards doing without.

 

Positional bargaining or principled negotiation?

Much is said and written about the ills of the former and the benefits of the latter. In truth, my experience is that the parties in monetary claims expect and indeed hope to do both.

They hope in a principled way to persuade the counter party on the facts and the law that their claim/defence is strong and will be proved in litigation, and they need the time and space to allow for this. But at the same time, they expect to bargain as the means of ensuring they’re getting the best deal available on the day.

Isn’t this one of the great merits of mediation – that the parties can engage directly or through the mediator to test the other side’s ‘final’ offer to destruction before a final decision as to whether to accept or not?

 

Listen more, speak less

I’ve been fortunate to have found a profession that’s provided intellectual challenge and often the satisfaction of helping disputants to resolve seemingly intractable differences at the same time as keeping the wolf from the door.

The further challenge is getting to and maintaining ‘conscious competence’ as a mediator without sliding into ‘unconscious incompetence’ through lack of the humility to recognise that we have to learn from each mediation and from one another.

As mediators, our use of language is of great importance. Only through speaking can we gain the confidence of a roomful of people within the first five minutes, and we constantly need to find the right words with which to convey messages from one room to another in a way that keeps the dialogue alive.

However, if I were continuing in practice, I would concentrate on listening more and perhaps speaking a little less. Every mediator’s library should contain

Time to Think: Listening to Ignite the Human Mind

. In the book, author Nancy Kline sets out a way of increasing the value of meetings by creating a thinking environment in which everyone can be given space for thought encouraged by incisive questions.

After all, isn’t that what mediation strives to achieve?