Mediation in the Raw-Dissection after the Event

A commercial mediation presentation at Rooney Nimmo solicitors in Edinburgh on 6 December 2018.

I was very pleased to be invited by John Nimmo, Founding Partner at Rooney Nimmo solicitors to deliver a presentation on the practicalities of commercial mediation.

This came after my involvement with a number of solicitors from the firm in a prolonged commercial mediation that stretched from one day to the next. It was interesting for all to be able to reflect on what happened-and also consider other options that could be explored.

One of the themes that emerged was what happens if one person wants to stop because they need a break. The answer is, you stop. But this is something a mediator needs to try and anticipate. It is very difficult to guesstimate how long a commercial mediation will last, but they often last late into the evening and sometimes into the following day. This raises genuine difficulties with tiredness and its impact on good decision-making. It rubs up against people’s desire to keep going to try and get a resolution and not lose momentum. My own practice has changed as a result of recent experience. I now offer parties a second day immediately after the first when diarising, on the basis that parties can avail themselves of that if they want, and won’t be charged if they don’t. That provides parties with the real option to take a break and reflect, or not, as they want.

Another theme that arose was what should a mediator do if one party felt and observed that the mediators were spending too much time with the other party. Mediators do, and have to, spend significant amounts of time, sometimes disproportionately, with both parties in private caucus. Often this is because they are reality testing with parties where private individuals are having to come to terms with very significant difficulties, in real-time. It is permissible, in general terms, without breaching confidentiality, for mediators to explain to that party that they have been involved in genuine reality testing conversations with the other party and that these take time.

Leading on from that, it is possible also to observe, if it is the case, that one party seems to want to engage more in the process of reality testing with the mediators than another and indeed, if it is the case, to point out, especially if one party seems to want to discuss reality testing without the presence of the mediators, that it isn’t possible for the mediators to insist on being present. This in itself can explain disproportionate time spent, and sometimes the clients in dispute do not appreciate that that is what is happening. Many will never have been in mediation before.

This brings me onto the helpfulness of confidentiality in mediation, and the fact that this is sometimes underutilised by one or both parties. This, in itself, is sometimes determined by the attitude and approach of a lawyer, or lawyers, to negotiation in mediation and the style that he or she wishes to apply. Despite the confidential nature of mediation, and despite the mediation processes seeking to encourage frankness and disclosure, some lawyers still approach mediation on the basis that cards should be kept close to chests; that the negotiation should be more competitive/adversarial and less cooperative-with more of an emphasis on win/lose and less on win/win where both parties seek to assist where possible, an outcome everyone feels able to live with. This represents a failure to get beyond positions and focus on interests. The interests of both parties are to seek to resolve the dispute so that they can move on.

What some lawyers fail to grasp, is that they can use mediators as sounding boards in these private caucus reality testing sessions, by considering all options, the likelihood and implications of the various option outcomes. This can be helpful for lawyers and their clients-particularly if there are differences between them-which there often are. I think this is because, in part, some lawyers don’t trust the idea of confidentiality in mediation-as a result of lifelong ingrained distrust. What they need to appreciate, and what mediators should robustly reinforce, is that mediators will never breach confidentiality in private caucus-information and proposals will only be passed on by mediators to the other party with express permission.

Some lawyers are missing a trick by failing to avail themselves of the opportunity confidentiality provides in commercial mediation.

If parties can avail themselves of confidentiality fully, and allow genuine reality testing, and consideration of Batna’s and Watna’s in private caucus, they will put mediators into a position of much more knowledge re-the dispute and its parameters, and of the real differences between parties. This will help mediators establish whether there is a ZOPA – a Zone of Possible Agreement. Both parties will have ranges within which they consider that they can settle. Sometimes in negotiation, parties start from such extreme positions that it can appear to them, that there is no ZOPA-they are too far apart. Ironically this can be because they don’t want to give too much away. They may never find out that in fact there was an overlap between their ranges-and that there was in fact a ZOPA.

With party agreement, mediators can disclose the existence of a ZOPA or not, and in the event of the latter, again subject to party agreement provide information to both parties about the gap and the reasons for it. This can assist in parties avoiding impasse.

One of the solicitors present, Mike Wells of Ennova Law (a University peer and friend of mine) wanted to understand why so much information was exchanged in mediation and was concerned it might make the process too formal – almost like a proof in court. That enabled a really good discussion of how useful it was to maximise the exchange of information and also to ensure that experts were there, to exchange it with each other in a hot tubbing environment, where they were able to discuss it with each other and question each other in an informal forum which was much more productive of understanding of differences than the hostile environment of cross examination in court.

It was good to meet an old sparring partner from my litigation days again – Dawn Robertson, Partner (a specialist employment lawyer) and to discuss the way that mediation could be used in workplace cases, with a view to reaching mediated settlement, rather than exposing individuals and employers to the reputational damage that can follow on from a disputed hearing at the employment tribunal.

As the conversation progressed, a topic of discussion was the limits of confidentiality in mediation and whether or not there was ever any obligation on a mediator to breach it-in the same manner that a solicitor would be in matters relating to proceeds of crime/dishonesty et cetera. I opined that a mediator was not under the same obligation but pointed out that in my experience, where the mediator became aware of an attempt at fraud, misrepresentation, force and fear, or undue influence, this would probably lead to a mediator withdrawing from a mediation in order to ensure that he was not a party to an agreement that contained such. It also caused me to reflect on the limits of confidentiality, and “without prejudice” in mediation, from a legal perspective and I have since written about in this blog post titled ‘The Black Box of Mediation-Can it be Broken Open?’

Finally, I was pleased when it was pointed out to me that I had demonstrated a very personal touch in mediation with clients at a point where there was great frustration between agents and clients; that this had demonstrated significant empathy with them and had assisted with personal trust. It had enabled a breathing space and room for progression. In any mediation it is important for the mediator to win the trust of all participants, including clients, agents and experts. It is hard to win such trust-and easy to lose it. It requires mediators to be mindful at all stages.

This was a thoroughly enjoyable session on commercial mediation at Rooney Nimmo solicitors, where a great many questions were asked, with a mixed audience where some had experience of commercial mediation and others did not. Such an audience in my experience always leads to fruitful discussion and reflection.

It is very much to the credit of Rooney Nimmo solicitors that they are prepared to use commercial mediation to further the interests of their clients and demonstrates a very high level of commitment to client care. Commercial mediation is not an easy option, but it can lead to resolution of legal disputes in a much quicker, more productive and humane way than a long drawn out destructive litigation.

Posted by Paul Kirkwood, director of – Mediation, Negotiation and Conflict Resolution Services.