It often seems that the world of litigation lawyers divides into two camps: those who have never mediated, and those who are passionate advocates for mediation. The third group – lawyers who have tried it and say “never again” – doesn’t exist.
Why? Well, it seems that the blandishments of many senior judges, including Lord Justice Ward (with whom I had the great honour of co-mediating more than once), and the costs penalties for failure to mediate, have still not had the desired effect on some; yet when those laggard lawyers finally take the plunge, they become converts overnight.
So there must be something magic about the mediation process. What is it?
Before I launch into my list of reasons, two things. First, I must declare an interest. I am an experienced mediator – 110 chaired to date, vast range of topics, 80% success rate – so you can expect me to be passionate about mediation. But second, I don’t even depend on it for much of my income. My main profession is expert accountant in litigation, which means I have spent a great deal of time with lawyers, and with nervous parties facing a process they don’t understand. There has to be a better way. There is, and I am an advocate for mediation mainly because I have seen how it has transformed people’s lives for the better. And I sincerely love helping people. Don’t you?
What then is the magic?
Let us take as read all the usual reasons: speed, relatively modest cost, privacy, the parties are in charge, no precedents set, and so on. Instead, let us concentrate on what happens at mediation, and on how and why it works in practice.
The two most important things to remember are these: that the mediator is a highly trained individual who knows how to listen to people, and establish their true needs by picking up clues when the parties are asked to tell their story in private; and that the mediator, as the day progresses, is the only one who knows the whole story because he is the only one who has heard in private what each party has to say. He (or she) respects that knowledge and uses it very carefully. He never breaks a confidence, and he shares information only with express permission. Nor must the mediator be a messenger-boy; information with permission is shared only when it is considered to have the most impact in helping the parties to a settlement.
Some of the many techniques used come from “Influence – the Psychology of Persuasion” by Robert Cialdini. Very briefly, they work like this:
Authority: the parties and their advisers must have confidence in the mediator and in the mediation process. I always dress smartly to look the part, and insist on having an opening ceremony where I recite my experience and explain how successful mediation can be. Some parties try to avoid meeting the “enemy” at the opening joint meeting, but I have never failed to persuade them that it is important, and it certainly gets the mediation moving very effectively.
Commitment and Consistency: The parties are asked to commit to the process by saying out loud: “I have authority to settle this dispute”, and the mediator must be consistent in managing the day. For example, I say in terms that I do not know either party, and that my sole intention is to help them to solve their problems; I never break confidences; I make a point of destroying all my notes at the end as I promised to do at the beginning, and so on.
Liking: As in life, so in mediation, it is much easier to work with people if you like them. It’s easy for me because I genuinely like people, but the mediator must be a chameleon who gets on with everyone, and the first private meeting is always important in establishing rapport.
Reciprocation: If one party gives something in negotiation, it is much harder for the other not to. In a particularly nasty probate mediation, brother and sister hated each other with a passion, but I picked up that brother desperately wanted the family grandfather clock, and sister wasn’t bothered. After that, it was easy to draw the parties together and agree far more important matters than who took the clock.
Social Proof: Parties will agree things if they think it is the right thing to do in their family or community. So, for example, Asian parties sometimes nip out to call an elder in the community who hasn’t heard the discussions. More often, it becomes clear that a party is concerned about what their wife or husband will say about the settlement they intend to make. One must respect such important considerations.
Scarcity: “Buy One Get One Free – offer ends tomorrow.” Irresistible? With litigation consider the worry, expense, loss of management time, uncertainty of outcome, and the fact that some of the winner’s costs will be “taxed off” even if they win on all heads of claim. It is far better to reach a settlement you can live with and get on with your life. I tell the parties litigation is like dancing with a gorilla: the dance stops only when the gorilla decides to let go. But today, in mediation, you are in charge, and you can agree to anything the other side will live with. If that fails, the gorilla of litigation will dance on, and you will have nothing to look forward to but worry and expense. So why not settle today, before the offer expires?
I recall a three-way property development I did some months ago. One party had given up quite a bit to reach a settlement, but on my feedback form had written: “All disputes should if possible be settled this way – Great Mediator!”
So ADR does not stand for “Alarming Drop in Revenue”. If you have mediated, thank you and congratulations; you are one of the converted. If you haven’t, do give it a try. You won’t regret it!