As part of my continuous professional development, I sometimes have the opportunity to attend mediations in an assistant/observer role. The purpose of this is to gain first-hand experience of the mediation process, in which I am involved from the moment one of the parties contact Core up until the mediation day itself, making arrangements and working with the mediator, solicitors or parties in their preparations. I find real value in attending the mediation days – seeing the parties come together and working hard to find a mutually acceptable solution to a problem that has at least caused those involved a headache and often caused significant and sometimes acute levels of stress and sleepless nights.
Having attended a couple of mediations in this past year, I have collected my thoughts and put pen to paper, mostly as a way of unpacking what the mediator and I saw, and how a successful outcome was eventually achieved in each instance. Here are some of my reflections:
The power of the pause is something we teach in our Mediation Skills training course and it was interesting to see it in practice and particularly the impact it had on the conversations. We are often inclined to nod, smile, and say “sure” or “yes” when listening to encourage the other side to continue speaking. In a mediation setting, however, these linguistic backchannels can have the effect of the individual wrapping up their train of thought quickly, as it seems the mediator understands (or perhaps agrees with) what they are saying. By remaining silent and having neutral body language, even for a moment or two after the individual has finished speaking, parties and advisers are then prompted to elaborate on their thought process, reflect and ruminate. This can sometimes result in solidifying their position on the matter or, more often than not, notice that they are proffering a weaker argument or one that is not necessarily helpful to the process and achieving the desired outcome.
After listening to what the parties have to say, perhaps engaging a pause and a moment to reflect and absorb what has been said, I have noticed the role of what we call “daft laddie/lassie” questions in the mediation process. These are questions that really only a mediator can ask, as someone who has not been involved in the dispute from the outset and is coming in now as an independent and objective participant. Much can be achieved by asking these questions as they serve as subtle reality-testers in joint sessions or private meetings.
Throughout the day the mediator is largely in control of the process – determining who meets with whom and when and establishing the ground rules. Naturally, relinquishing control can discomfit some lawyers. In one mediation that I observed, each side had an expert report prepared regarding the construction of a property where there had been some admittedly long and unforeseen delays. It was agreed that both experts should attend the mediation day, as meetings between experts can be essential to the process, but there were some strong views on each side about how the experts should meet. One party felt that the solicitor on the other side wanted to be present in the meeting in order to cross-examine their expert. On the other hand, that same lawyer felt that sometimes the experts can meet in private for several hours with no principals/decision-makers or solicitors in attendance, and ultimately they each go back to their private rooms with neither position changed nor notable progress made. The mediator proposed a two-phased approach where the experts first agreed an agenda, would then meet privately (with the mediator present), then bring the solicitors into the room for the experts to summarise and give the solicitors the opportunity to ask questions.
Even though the reports received prior to the mediation day were ostensibly miles apart, the experts were able to use their initial time together to narrow down and identify the points where they fundamentally disagreed. When the solicitors were invited back into the room, the mediator asked the experts to step into each other’s shoes for the purpose of the joint meeting – each was to explain where their opposite number was coming from and why they had written what they did in their report. This exercise was extremely helpful, resulting in an amicable joint meeting and serving to focus minds for subsequent negotiations.
It is only as I write this that I can truly appreciate how many of the principles that we teach in our Mediation Skills Training Courses are put into practice in each and every mediation, and with such success. It is fascinating to observe this, and to gain a more complete understanding of the mediation process that I manage in my role at Core.