I have just come from a meeting with a senior member of the legal profession. “What can you do”, he asked “to help persuade clients to agree to mediation?” I was rather surprised that this question was still being asked but, of course, there are many impediments to the use of mediation. Mediation is an extremely useful tool in the armoury of any conflict resolution professional and in the range of options available to clients to manage the risks they face in unresolved disputes. But it remains a challenge, sometimes, to get this message across.
The first building block, therefore, in achieving the best result is to make sure that the clients (principals, decision-makers, funders and others) understand what they are engaging in. It is not enough, I suggest, for lawyers to assume that the clients will “get it” or that they do not need to understand precisely how mediation works. Mediation is, par excellence, the clients’ process and excellent lawyers appreciate that their own job will be easier if they work collaboratively with the clients. Similarly, presenting mediation as an opportunity for positional bargaining, for focussing on “gaming” the mediator and/or the other parties or playing hardball are not conducive to best results. Mediation works well when everyone understands that seeking to maximise all interests will maximise outcomes – for all.
Early engagement with the mediator and the other parties, usually through their lawyers, is another building block to make sure the process starts off on a sound footing. My practice is to meet (or, more often have a conference call) with the lawyers as soon as a date is fixed for mediation. Indeed, sometimes, this will occur before a date is fixed as we work out the best strategy for achieving an outcome. Do we need one or two days? Or an early preparation/management meeting (for example with experts) to focus and narrow the issues? A two day mediation can be reduced to one day by really effective distillation in advance. Yes, this takes extra up front time but the gains can be significant. Clients can be educated to see the advantages of this by informed lawyers.
Preparation is an essential foundation and can be enhanced with joint summaries or, in complex cases, joint Scott-type schedules identifying and prioritising the key issues and values – and why differences exist. This kind of collaboration with your opposite number may seem strange if your classic strategy is concealment or obfuscation. Why do the “other side’s” work for them? Because, paradoxically, in most cases, it will assist your client to get a better result.
There is much more to effective preparation of course. “Before anything else, preparation is the key to success” observed Alexander Graham Bell and that is no less true in mediation. I use advance preparation questionnaires in some matters, designed to encourage the key players to get under the surface: What is this really about? What do the other parties really need out of this? What are the real consequences of not resolving this? Useful building blocks in many cases and not just during the first private session on the mediation day.
Turning to the day itself, achieving a result which sufficiently satisfies both parties usually requires a degree of engagement by the principals. After all, they are participating in a joint venture to find a common solution. Thus, usually, they need to be able to work together. My practice, wherever possible, after initial private meetings with the party “teams”, is to invite them all to join me for “breakfast”. This is an opportunity for everyone to meet the other participants in the process, and to seek out those who may be key. These quasi-social occasions need not take long. I conclude with some words about the realities of joint problem-solving, often informed by what I have gleaned in the preceding sessions. These can help shape attitudes and commitment.
Another customary building block for me, immediately after this informal session, is to meet with the principals alone for a brief conversation about why we are all here, the opportunity presented, the choices which will need to be made and the responsibilities they each have. This builds a platform for later such meetings and, in particular, creates a reference point for those times in the day when things get sticky and/or the final bridge needs to be crossed. Such meetings can be augmented by other participants: recently I invited the key decision-makers to form a joint dispute resolution committee, which met regularly and was augmented by lawyers and others as they worked through the issues.
What we call “the opening joint meeting” has been the subject of much commentary in recent times. I find that the most effective way to use this time of engagement, especially when preparation has been carried out effectively in advance, is to encourage one party (usually the “claimant” or its equivalent) to set out its stall in a non-contentious way, then to adjourn to enable the other party to digest, reflect on and distil what has been presented. Thereafter, that party has the opportunity to set out how it sees the situation, not as a rebuttal but as part of the quest to identify the real differences and ensure real understanding of what is in issue, commercially as well as legally. Such an approach is another constructive building block for what follows later.