Since becoming more familiar with the process of mediation, a journey that led me to qualifying as a mediator in 2015, I have not only used formal mediation where I thought it advantageous but also used the mediation skills and techniques learned within my general litigation practice. It goes without saying that the skills of questioning, exploring, listening, maintaining an open mind and reality-checking a party’s position (even your own), skills at the core of the work undertaken by a mediator, carry considerable benefit outwith formal mediation. Recently however, I learned a salutary lesson that whilst you might be able to take a mediation away from a mediator it is much more difficult to take a mediator away from a mediation.
At a recent multiple party settlement meeting, where the suggested involvement of a mediator had been expressly rejected, after a full day, discussions broke down as a result of one party’s apparent refusal to give any meaningful weight to the reality of their position. It was difficult to be certain with whom the impasse lay. What became clear to me however was that, whilst as a party one can take the initiative at a settlement meeting and seek to mimic the benefits of the mediation process, and whilst you can seek to reality-check a party on another other side through negotiations, where that other party becomes entrenched, the process can become stuck because it can be very difficult to identify and address the cause of the impasse.
In a formal mediation, it seems to me that that difficulty can be elided by the mediator’s ability to identify and speak privately with an apparently difficult individual and help to reality-check with that individual directly and meaningfully. That can also help to allay any fear of “loss of face” or making direct concessions to an opposite number. At the settlement meeting I attended there were enough lawyers present to make the relative cost of a good mediator very modest and I strongly suspect their presence would have opened the door to the parties settling their dispute. The expression ‘Don’t spoil the ship for a ha’porth of tar’ springs to mind.
By Michael Stuart, Advocate, Ampersand Advocates