James Johnston, Director of Transcend Change Ltd writes:

An American Client of mine often reminds me that “negotiation breeds mediocrity and disappointment”. I regularly remind her that it is but one technique in a spectrum of engagement tools that has both a utility and relevance to a particular stage and/or opportunity.  Mediation tends to be seen as the ‘last chance saloon’, suggesting the only tool left in the box not tried – oh how wrong!  Whilst new to the world of mediating, I have a fair degree of experience in terms of negotiating and I have been struck by both its ‘power’ and efficacy.  

I recently had the opportunity to join John Sturrock, CEO of Core Solutions Group, in a mediation addressing a long running dispute between 2 significant businesses; one perceived as a ‘small fish’; the other perceived as a ‘corporate monster’.  But it wasn’t a ‘David and Goliath’; perhaps this was used as an excuse as to why previous negotiations had failed to bear fruit.  It rapidly became evident that the real blocker pertained to personality and the personalising of most of the issues.  This in itself encouraged bad behaviours, poor/non-existent communication and most of all, little or no trust.

The mediator’s approach was to get the parties to ‘start again’; to empower them through individual rapport building whilst generating a shared understanding of the real issues.  The simple act of meeting over food, ‘the breaking of bread’, and sharing refreshments reduced the tension and got the Parties used to each other.  Most importantly it afforded an opportunity for the mediator to assess the burgeoning influence he was able to exercise over the developing process.  Of significance was the opportunity seized to let the principals engage with each other in a supervised environment without lawyers present, whilst reinforcing the importance of listening to and hearing each other’s issues – whether they liked what they heard or not.  The lawyers were then invited to re-join the mediation and the mediator then generated a framework to help take the issues forward:

• Defining the ‘perceived’ issues
• Defining the outcomes required (in this case the development of two options)
• Identifying the priority of issues to be considered

The Parties agreed a methodology for going forward, acknowledging the importance of perspective (accuracy, facts, evidence, realism etc).  What mattered most, having started a path of recovery in terms of trust, was to ensure that the ‘process’ had the best chance of delivering; this took deft management in terms of the execution, and based on the agreed framework.  This demanded very careful listening (and hearing, checking of understanding and regular ‘summaries’ as part of the ongoing dialogue), and maximum agility from all Parties.  Of note, there was a willingness from both Parties to return to previous ‘agreed’ items in light of new information illuminated by later discussions; This was a mark of building trust and an important step in underlining the principle that ‘nothing was off the table’ within the agreed remit of ‘a better conversation’.  But again, it needed to be choreographed very carefully – the mediator was working extremely hard – to ensure relevance, coherence and the maintenance of a positive momentum.  

I was surprised how quickly the 7 hours of engagement passed, and we found ourselves in a place where both options had developed sufficiently to indicate that they were both worth taking forward.  Both Parties agreed that it would require more work, but the opportunity now existed to bring to a conclusion 12 years of ‘conflict’; not only was there a re-established trust, but a tangible confidence that resolution was now not only possible but both credible and likely.  Lawyers for both Parties (very willingly!) drew up Heads of Terms Agreement to take forward both options.

For me the most significant element in terms of moving forward pertained to both Parties agreeing to reconsider behaviours, language and the adoption of a more effective communication protocol.  Indeed, you cannot act upon information you haven’t heard!  The Mediation session concluded with closing words from the mediator; both Parties were evidently more positive and certainly significantly more respectful/civil towards each other.  And it is fair to say that both sets of supporting lawyers were somewhat relieved to take more positive instruction to facilitate resolution.  I should also add that both sets of supporting lawyers were pro-active, clear in their objective guidance to their respective clients, cooperative – verging on collaborative, and clearly keen to support their respective clients in securing resolution.

This was for me a master class on why mediation is such an important tool – but again, not the only tool.  In addition to the key characteristics necessary to facilitate resolution already identified, mediators must continually remind themselves of:

• What we are there to do – the importance of understanding the process; 
• That we are not there to judge or make decisions for Parties; 
• The need for a shared understanding between all parties (whether they like it or not!); 
• The importance of getting the Parties to own the problem;
• The importance of using all our skills, experience and knowledge to encourage a better conversation;
• Listening extremely carefully to what the Parties actually say
• Not being afraid to manage the behaviour of the Parties in the interests of leveraging the process
• The Importance of promoting collaboration.

“Collaboration – the art of creating something that didn’t exist before” – Professor Irene McAra McWilliam MA FRSA OBE, Glasgow School of Art

This Mediation provided me with invaluable insights as to the way in which the mediation process needs to be delivered.  And the agility required by the Mediator that can only be developed by years of experience.  John, in his normal self-deprecating manner, referred to ‘making It up along the way’; but he wasn’t – what enabled the success enjoyed at the end of the day was John spotting opportunity and leveraging changing behaviours whilst continuously encouraging the development of rapport, and the advantage of using the process well.  Experience shone through!   

In summary, in a Mediation session that started in a very challenging manner, where the Parties found difficulty in seeing the utility of the engagement, had by 1700hrs achieved an agreed workplan, an 8 point note of resolution between the lawyers, protocols on moving forward and a commitment to communicating more effectively.  I think we could term that as success.

The world is often described as being as ‘big as the people in it’; as for mediation, its success is a great as the contribution made by all the Parties – including the mediator(s) – both individually and ultimately in a collective manner.