We spend a lot of time as mediators and trainers focussing on how we start mediation. Private meetings? Joint sessions? Breakfast with the parties? Summaries and other documents? Initial telephone contact prior to the day? And so on….
But we spend less time on how we finish. That may be because it is much harder to simulate the end game in a training context. There are so many more variables. And in mediation itself, we may be tired after a long day, or relieved, euphoric or simply very aware of how hard it has all been and how jaded the parties have become.
There is a danger, though, that the experience of mediation is diminished by a poor finish. Just as rapport is established in a very few moments at the outset and the tone set by a good (or bad!) start, the last stage may be what people remember. If it has been a tough day and the outcome is (as often it can seem to be) less than parties had hoped for, the process can fizzle and leave a sense of dissatisfaction.
Does it matter? Assuming that the matter has resolved, the job is done, the mediator goes home and lives to mediate another day. Need we do more? I think that we should.
I suggest that is a part of the mediator’s role to try to make sure that the parties feel as positive about the outcome and the process as is realistically possible. Thus, how the parties do the deal is important. As often as possible, the mediator should leave the last move in the hands of the parties, so that they have that sense of rediscovering the ability to negotiate and taking responsibility for the ultimate outcome. It may be that the mediator has so positioned things that he or she knows that the outcome is certain. Nevertheless, the mediator needs to let go of any need to be the one who brings it home, often with the admiring appreciation of the parties. We all enjoy the triumph of finalising the deal. But it is so much more meaningful to relinquish that moment and return ownership to the parties. Let them enjoy that moment of accomplishment wherever possible.
Similarly, acknowledging the valuable role played by the advisors, legal and otherwise, in front of their clients and giving them a key role in the final acts, whether it be drafting the agreement or orchestrating other formalities, can be a generous and welcome move. This is especially so if the advisors have had a tough time with the negotiations or have had to give difficult advice to their clients.
Reassuring parties that they have done well, worked hard, struck as good a deal as they can (without stepping over that fine line to expressing a judgment) can be worth its weight in gold. After all, the parties have relied on you throughout the day to guide and shape the process. A friendly word of comfort at the end can mean a lot.
Then the ritual of the final meeting. It is not always possible or appropriate, but it can be meaningful and respectful to bring all the key players together at the end to acknowledge the achievements of the day, perhaps reminding them of where they were when they started and of how, together, they have fashioned an agreement. A few carefully chosen words by the mediator can be just what is required by those who have found themselves in a difficult and uncertain environment.
And, of course, if the host is able to produce a glass or two of fine wine – or even something bubbly – that can occasionally go down well. But prudence may suggest taking care, lest something unfortunate is said….and always wait until the lawyers have completed the drafting. On one occasion, early consumption of wine rendered the lawyers incapable of completing the legal documents and the mediation had to be adjourned. It then took another day to unravel the confusion which resulted!!