View Section 1 here.
Section 1 discusses a typical mediator’s morning, where all of the details of the case and the arguments are revealed. Section 2 discusses a mediator’s afternoon, where he uses all of his tools to help the parties understand each other.
A few weeks ago, we published parts one to three of The Mediator’s Log. Here are Parts four to seven, describing how the mediator’s day progresses:
Moving on and summarising
12.42: ….The last 45 minutes had been tough. The claimant had decided to listen to what the defending party had to say. Their lawyer had been careful not to inflame matters and had offered an expression of genuine regret to the claimant; not an apology as such, which was not appropriate, but a recognition that things had not worked out as anyone would have wished. While such an acknowledgement would often come from the client, on this occasion it was easier and better for it to be offered by someone who could be more dispassionate. The lawyer had also explained why his advice to his client was that a court would not find in the claimant’s favour. While mediation is not simply about assertion of legal rights, it provides an opportunity to address the other client in a way which may be unique. For that client to hear, directly and in private, what her opposite number is being told by their lawyer gives a different perspective and often provides a better understanding of risk. It reinforces the reality that, in litigation, respectable and well-regarded lawyers are offering different advice to their clients. At times like this, the mediator was often prompted to mention recent research which reveals that lawyers, like the rest of the population, tend to be over-optimistic about risk and the prospects of success.
12.45: It was now time to move on. The parties had lunch in their rooms. The mediator paused to take a couple of sandwiches but liked to keep moving. He was well aware that there was a lot of ground to cover before the day was over. If anything, the pace needed to pick up as the day progressed.
12.50: The mediator entered the defending party’s room. There was a sense of relief that the most difficult part of the day, in personal terms, may have passed. The mediator joked about the excessive supply of sandwiches that they seemed to have been provided with. Lightness of touch is essential to maintain working relationships and to give some relief from the intensity of the day. It is often forgotten that people are condensing into one day that which may have taken months or years to build up and may take a similar time to resolve if these negotiations are not productive. “What do you think still needs to be said before we can move on to the next stage?” he asked.
13.10: It was time to summarise the discussions. “You are concerned that the claimant and her team are still unrealistic about what a court might do? And that you may need to run over the legal risks again….. Apart from that, the key now is to make progress on how to sort this out. Apart from the money side, what else is there to deal with? You have mentioned consultancy work and another project in the wings. How realistic is that? What about the reputational aspects? This was featured in the financial press some time ago, you said. How important is that? Can I suggest that you start to think in detail about these aspects and what you might say to the claimant? On the legal analysis, my sense is that you won’t need to rub this in. As a colleague of mine often says, you don’t need to hear the penny drop. I think you should assume that they have heard you and got the message. You can’t expect them to agree with you …and remember their lawyer was fairly clear that they accepted they had risk…I would focus now on what you can do to help her to move on. Think about it in her shoes. Assume she has family members back home. If she accepts a deal today, what does she need to be able to say to them to explain what has happened? William Ury calls it the “victory speech”…you have to help her work out what she will say to her outside constituency… that may be as important as persuading her, especially if they have all invested a lot in this. OK, I’ll leave you with that to work on….”.
13.20: Back in the mediator’s room, the mediator picked up a piece of fruit. His assistant asked about financial claims. “These are often a substitute, at least in part, for other things”, the mediator responded. “Money seems to be the only way to address the wrongs but, if you leave money until later, you can often find other things of real value to add to the range of solutions. You need to find out what the parties really need, not what they say they want, or what the court pleadings say. Often, they don’t know themselves until you ask them although good lawyers will often have worked with them to explore their real interests in advance. What do you think the claimant really needs?” “A way to start back in business with a good project” came the reply. “She said that at one point early on in the second meeting.” “Well spotted,” said the mediator. “And, if so, we need to explore that soon…… Let’s go and see how she is.”
13.25: There was laughter in the claimant’s room. “What’s going on here?” asked the mediator. “I see you’ve not left any of the profiteroles. How was your lunch?” It was clear that the careful handling by the defending lawyer had helped to reduce the tension and removed the fear that the claimant had that she would be the subject of some sort of personal attack. “What more do you think you need to say, or that they don’t understand, before we can move on to trying to resolve this?”
13.40: “In summary, then, while you are still not exactly happy with what was said, you accept their recognition of what you have been through? Let’s close that chapter for now and look at what you really need out of this so that you can wake up tomorrow with this behind you and a new chapter to open. How would that feel?”
The Experts Appear
14.00: It was time for a meeting of the legal advisers. The mediator favoured working with the lawyers as much as possible. Just as bringing the clients together to talk could help to build bridges, encouraging collaboration by the lawyers was usually constructive. It gave them the opportunity to talk openly about the situation as they saw it, reminding their opposite numbers of the legal aspects but also focusing realistically on what could and could not be achieved. Without breaching client confidentiality, they could often suggest courses of action or agree what might be said to clients to help them to make progress. The mediator would often ask apparently naïve questions in order to draw out the underlying issues. “What about the experts? Are they relevant anymore?” “Yes, we need to have their views on valuation and what should have been done with that other contract”. “We certainly don’t agree with your guy”. It was clear that there was a source of conflict which might need to be addressed. “How about bringing them together and asking them to present to each client directly?” asked the mediator. “It can often be really useful for the client to hear what is being said on the other side. Again, it’s about understanding risk, not persuading either side that they are right or wrong.” “But would we be present?” asked one lawyer. “I’m not particularly happy about them being alone with the clients”. “That’s not a problem”, replied the mediator, “but maybe your role can be as an observer in this session?”
14.20: It had been agreed that the mediator would meet with the experts first and discuss with them what the main differences were between them. Although they had prepared reports, as usual these played up the strengths of the party they had been asked to advise. The mediator knew from experience that, when experts actually sat down and talked through the issues together and gained a better understanding of the other perspective, the differences would often diminish. Or, at least, the reasons for the differences would become clearer. It was remarkable how highly experienced professionals could reach different views based apparently on the same facts. The reason was usually an incomplete or (unconsciously) partial approach, reliant as they were on the information provided to them. It was far better that they reached greater consensus – or indeed made concessions – now, in this confidential process, than after several days of cross-examination in a court. While this prospect troubled some lawyers, most appreciated the value of bringing clarity at this stage.
14.25: “What are the biggest differences between you?” asked the mediator. “Can you rank them in order, so that we can focus on what really matters? And can you identify why it is that you have these differences? When you’ve done that, I am going to ask you to come through to the main room together and take each topic in turn and I’ll ask you to tell the clients where you differ and why.” The experts knew each other well – and had a mutual respect – so, on this occasion, such a prospect was not too uncomfortable for them. (The mediator recalled some instances when this was not so. Such situations needed careful management). Nevertheless, the mediator was aware that professional prestige was to some extent at stake, especially as the lawyers would be watching. After all, like others, the experts relied on the lawyers for work. Would that influence them? In theory, not at all. But even the mediator was aware that future revenue streams could have a sub-conscious effect on how a professional performed. Did that ever have any impact on mediators too, he pondered…..?
14.45: The mediator had left the experts to talk and to prepare a rudimentary schedule of key issues. He gathered the others together, having made sure that he updated the clients on what was happening. It was that stage in the afternoon when people would begin to wonder if progress could be made. The mediator would use the term “wading through treacle” to describe the time it sometimes took to work through the issues. Experience taught him that trying to cut through things too quickly could backfire if niggling doubts or uncommunicated issues surfaced late in the day at a time when a resolution was in sight. Patience was therefore the supreme virtue. On the other hand, dwelling overmuch on events in the past could cause the mediation to get bogged down. It was a fine balance, a judgment call each time…..
14.55: “Ok, let’s get started. This meeting is to invite the two experts to set out where they are coming from. They have a lot in common but there are a number of matters where you are each receiving different advice from them. You need to understand why and the implications for decisions you need to make today”.
1515: There was a degree of frustration. One expert had rather dug himself in, or so it appeared. He looked less comfortable with the subject matter. All of this was useful, from the mediator’s perspective. The experts’ performance at this stage was simply another fact in the overall matrix of risk. It gave the lawyer on that expert’s side the opportunity to make an assessment of what might happen if the matter came to court. Again, better to know now…… On the other hand, the natural instinct was not to allow this to become undignified. The lawyer for the other party had already asked a rather dismissive question of this expert, notwithstanding that it had been agreed that the lawyers would simply observe. The mediator was quick to remind everyone of this ground rule. One of the mediator’s roles at this stage was to ask apparently anodyne questions of both experts but, having read the papers in depth, he was able to identify some key issues. One question revealed that neither had considered a particularly significant consequence of a calculation they had each carried out.
15.30: A break had been taken for reflection in the private rooms. The mediator and his assistant pondered the cupcakes that someone had placed in their room. “I think we need to move on soon,” observed the mediator. “We needed to show that the experts are unlikely to agree, nor to be persuaded by each other, but we can’t let that become an impediment. It is what it is. Time for a reality check.”….
Testing reality: “what if…?”
15.40: The mediator invited the lawyers into his room. Given the passage of time, conversation was now brisk and matter of fact. “I doubt that we’ll get much more from the experts” suggested the mediator, “but at least the clients can now see that there is a different perspective from the other room. I would like to check up on that calculation though. What effect does that have?” The lawyers agreed that hearing the experts had been useful, perhaps more useful than might have been anticipated. “I think that my client was quite shocked to hear that there might be a different approach on that second point,” said one, “but it’s still difficult to get across the idea that a court may find against our expert.” “And the calculation is frustrating,” commented his counterpart. “Why on earth…..?” The mediator was aware that meetings like this were delicate and that neither lawyer wished to say anything that might appear to weaken their client’s position. At the same time, and paradoxically, this kind of conversation was what loosened up the negotiations. It was important that the lawyers now did what they could to help their clients make the choice about whether to resolve matters today or not. The mediator reminded them of what he had said in that first gathering: that they needed to help each other.
15.51: As the lawyers departed, the mediator gestured to the claimant’s lawyer to wait behind. “How do you see it?” he asked. “It’s a bit of a struggle” was the reply. “This has left a deep scar”. “How can I help?” asked the mediator. “I think she needs to hear from you. There is a limit to what I can say without losing credibility…..It’s been a tough one.” Such momentary asides often turned the day around.
16.03: “It’s been a long day,” acknowledged the mediator. The claimant nodded. “But it’s important to remember that we are condensing into one day something that has taken months to get here and will take months – or longer – to resolve if it’s left to some other process. Remember what we discussed about new chapters. Let’s consider what would happen if this doesn’t settle today”. The mediator spent less time these days on BATNAS, WATNAS and risk analysis as many skilled lawyers now carried this out effectively with their clients. But, quite often, it remained useful for the mediator to act as an independent prompter of reflection on what would happen if agreement could not be reached. “What if you don’t reach a deal today?” he asked. “I can’t really contemplate that,” replied the claimant. “This is eating my life up.” “I can see that”, said the mediator. “But you probably need to have a benchmark for deciding what will work for you.” He turned to the lawyer” “What will happen next if there is no agreement today?”
16.27: It had been a tough session, with figures on the flip chart, the mediator’s rudimentary decision-tree analysis, the usual conversation about the asymmetry of litigation and about the onus on the claimant to establish a number of things. The mediator frequently deferred to the lawyer, asking for his agreement or disagreement with propositions the mediator was putting. “Feel free to disagree,” he would say to the claimant. “Or to reject any of this when I’m out of the room. My job is to raise all this with you, to make sure you have all the information so that you can make an informed choice”. He looked at his watch. “It’s nearly 4.29” he said. “That’s nearly always the low point in the day! This is the point when you wonder if this can ever move on. Well, it’s remarkable how the pace can pick up. Let me ask you, what do you really need out of this now? Assume that the other team can’t give you all you have asked for, and bear in mind the cost in money terms and in other respects of not reaching agreement, what realistically will work?”
16.43: Moving to the other room, the mediator’s assistant asked what he thought would be the outcome. “I really don’t know,” he replied. “And the more I do this work, the less I am interested in the actual solution. I know that, if I let the process do its job, the more likely it is that an outcome will be reached. If I start to think about a particular result, I might influence things in that direction”. The mediator knew, of course, that there would come a point where he would be testing and probing very hard around the consequences of not moving in particular directions and indeed might need to give an “impression” of what was and was not likely to work. It was a fine balance as always. And there was always the “Lord Not Very Bright” routine which he occasionally followed in each room as he speculated what might happen to the parties if a judge got out of bed on the wrong side….for them.
17.10: After a discussion about reputational risk and what the media might say if the matter became public, the mediator asked the defending client what he thought the claimant might need. “If you were in her shoes….”
What will the end of the day bring? Read the rest of the story here.
In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation...By Joe Markowitz
Every day I meet with people and try to sort through their conflicts in order to achieve some meaningful consensus or agreement. Some of these sessions are more difficult than...By Jeffrey Krivis
This article is part of a panel presentation, “Is Mediation Overused?” with Elden Rosenthal and Richard G. Spier, prepared for Oregon Law Institute CLE on Mediation Tools and Techniques for...By Richard Spier