As a private practice litigator I was involved in perhaps 50 or 60 mediated disputes and, certainly in the last few years of practice, I thought I had mastered many of the nuances of the process, how to guide clients through the day(s) and, hopefully, to a successful result. As a mediator I've realised that even with that experience, the lawyer in me had certain fundamental misconceptions about the process and some misplaced focus on what was important. I thought it was worth sharing them in case they help those preparing for and attending mediations:
- Don't be afraid to pick a mediator based on style - there's an adage in boxing that 'styles make fights', but it's true of mediations as well. In practice I selected mediators based primarily on either their general experience of mediations or their specific experience of disputes in a particular sector. That's a sound approach generally, but I'm learning that some disputes require a particular style of mediator rather than one with specific expertise. Some disputes, clients and even lawyers are better suited to certain styles of mediator. Some mediators are purely facilitative whereas others are more interventionist (typically referred to as evaluative, although that's a term I think can be somewhat misleading). I'll offer more on this point in a future post because I think it's an overlooked aspect of mediation preparation, so for now I'll simply say don't be afraid to ask a potential mediator as much about style as experience when making a selection;
- Confidentiality in private sessions is a powerful tool – many lawyers (and their clients) are hesitant to reveal too much to a mediator in private sessions and, in fact, I even advised clients before mediations to be wary of giving away too much to a mediator for fear of inadvertent disclosure to the opposing party. I was wrong. Mediators have a range of tools to facilitate settlement and confidentiality is one of the most powerful. Not harnessing that is a missed opportunity. Sharing concerns, objectives and sometimes even your hidden pressure points can allow a mediator to be creative in identifying and exploring settlement options which might not otherwise be spotted. Sometimes it can also speed up the process and achieve settlement before a mediator's hourly rate kicks in....;
- A mediator's view of the merits is (largely) irrelevant - anyone experienced in mediation is of course aware that a mediator has no adjudicative power, but as a lawyer I admit to occasionally having been as curious as my clients were about what the mediator thought about our case, and even feeling compelled to try to convince them that we were right. That was misplaced. The last few months has taught me that unless you're raising a plainly unsustainable point that a mediator might want to (gently) move a party away from, mediators are trained to actively disengage the analytical function that's so ingrained in lawyers. The best mediators are almost entirely focused on letting the process itself guide the outcome, and who they think is 'right' doesn't matter;
- If it's happening in your room, it's probably happening in theirs – I've spent some time asking lawyers and clients to reflect on their mediation experiences, and two of the most common observations are "the mediator only seemed to be pushing us to make concessions" and "they spent far more time with the other side". I certainly had those thoughts in practice as well, and it's an understandable cognitive bias, but it certainly doesn't feel like that when you're the mediator. In reality, we're very conscious of the need to spend broadly similar amounts of time with each party, particularly in the early stages of the day. Equally, if you've got an interventionist-style mediator then pressure being brought to bear in one room is almost certainly being mirrored in the other. I've seen some parties being advised not to worry about what's happening in the other room, but that's not my point. If anything, I'm saying mediating parties should be more conscious of what's happening over there, and in particular recognising that it's probably very similar to what's happening with you.
11 December 2024