Never Give Up: Persevering in Mediation

 

“If you had not held us back that evening, the deal would not have been done.”

 “Thank you and I wish you well.”

In this post, I return to a familiar theme for mediators and for lawyers acting for clients in mediation: perseverance.

The first of the two quotations above comes from a participant in a mediation spread over four days and nearly one year. It was a complex matter involving many parties and some difficult issues. Towards the evening on day four, a proposal from the claimants was met with a lower counter by the defendants. The parties had laboured hard and the claimants felt that they had gone as far as they could go with the process. Or at least some of them did. Two principals left the building along with leading counsel.

That might have marked the end of the mediation. However, I had a sense that there was more to play for. I expressed my frustration with the situation, spoke with those who remained and suggested a further meeting, one to one, involving one of the claimants’ key advisers and his opposite number. “Let’s give it a go” was the sentiment. I knew that each were keen to find a resolution and that they respected each other. No lawyers were present.

In that meeting, things were said and options were explored that resulted, three weeks later, in a comprehensive deal settling all matters. Only because they went that extra mile. And, perhaps, in hindsight, it was helpful that the others had left early.  They provided the space for someone to step forward who could bring about a change in the pattern.

In the second quotation are the words of the chief executive of a large supplier of services to the public sector. He spoke these words at 9.45 in the morning, less than one hour after the start of the mediation. Breaking with convention, and with the agreement of all concerned, I had arranged to start the mediation with a meeting of the two principals on their own. All of the legal and technical stuff had been well covered by the lawyers in the paperwork: the principals had met previously and they knew each other.

The purpose of the meeting was to explore whether either party would be prepared to move from an earlier stalemate. In a friendly and frank conversation, one explained to the other that, with further inquiries carried out and substantial further costs incurred, he was in fact not even able to start at the previous point. His counterpart responded that, in that event, there was no point in continuing. He departed the meeting with the words set out above.

Four hours later, the parties’ lawyers were drafting a settlement agreement. What had happened? We didn’t accept things at face value. We stuck at it. By “we”, I mean myself and the two principals, supported by their teams. We continued to explore, to dig deeper, to try to understand what was really going on and what each needed. We reminded ourselves of the cost of the alternatives to a settlement. It was a classic piece of positional bargaining in one respect, each trying to find out how far the other would actually go – or give. But without the structure and safety of mediation and a mediator with whom to talk frankly and confidentially, it is unlikely that the principals would have had the ability to reach an outcome. The lawyers supported them well throughout.

One of Scotland’s lesser known music groups was a band known as Pilot. They had a lovely little song entitled “Never Give Up”. It remains one of my favourites – and an inspiration in my work.

Mediation and Cups of Tea

“If only we’d had this conversation over a cup of tea fifteen years ago.” The client expressed frustration at the time which had passed, during which she and her opposite numbers had spent hundreds of thousands of pounds in litigation. That had got them no nearer to solving the underlying problem about which a court action had been raised all those years ago.

Now at mediation, remarkably this was the first occasion the clients had met during that period. Three different court actions, with a fourth pending, had left them financially impoverished and deeply angry at the legal system.

The (fairly recently instructed) lawyers at the mediation could only acknowledge the shocking nature of the situation. There was no rational explanation. Things had got out of hand. That of course had led to the well known problem of sunk costs – and who bears them. There was a possible route to pursue recovery of some of these but it would take that fourth litigation to open that up. Meantime, the real practical issue on the ground still needed to be addressed.

A “cup of tea policy” seems a rather quaint notion. But as a metaphor for meaningful negotiations it works well. Negotiating over a cuppa eases the tension. There is choreography in it too. Mediators can set up these moments well in order to make the very best of the opportunity.

Much more poignantly, the idea of a “cup of tea policy” was proposed at a mediation seminar in Edinburgh last week by Jo Berry, daughter of the murdered British MP Sir Anthony Berry, as an antidote to violence in political conflicts. She did so while sitting next to Patrick Magee, the one time IRA member who planted the bomb which killed her father at the Conservative Party conference in 1984. For seventeen years they have been speaking together about what it takes to overcome hatred and violence and consider healing and reconciliation. The key point they made, though, was the need for real understanding of the “other side”. Conversation over a real or metaphorical cup of tea can help achieve that.

“I did not understand where you were coming from.” “We felt misunderstood, demonised, not heard properly.” “Their political allegiance meant they couldn’t see beyond the uniforms…” “Your lawyers didn’t even try to make contact to find out what we really needed.”

Political malfunction and legal malfunction are not that far apart. For lawyers representing clients in claims handling and dispute resolution, whether in negotiation or mediation, it is critical to make – and take – time to listen and understand as well as to explain and be understood. For mediators, enabling that to happen is one of our primary roles. We must not underestimate its importance.

Mediation: a cricketing metaphor

Recently, I was ruminating about analogies between cricket and mediation. Cricket is a much-loved sport in Scotland. Sadly, nowadays, changes in the climate mean that cricket in my home country is more often affected by summer rain and damp conditions than a generation ago. Its future is less certain as a result.

I have always been a cricket fan. Ever since England played the West Indies in 1969, and the great Gary Sobers was still in his prime. When I was in my early teens, I was coached by a kind, talented West Indian professional called Noel Robinson. He played a few seasons for my home cricket club, Stirling County. I learned to bat properly. My cover drive had such a flourish that, in my first year at university, I was selected high up the batting order for the first XI after impressing at practice in the nets. It did not take long, however, for my fear of really fast bowling to be exposed. The 2nd XI soon beckoned.

But it was in defensive play that I excelled, both on the front foot and the back. I practised for hours. I could bat for ages. My schoolmates would be frustrated as I ground away in those 20 over games, collecting singles and accumulating runs at a snail’s pace. 39 not out seemed to be my badge of honour. That England legend, Geoffrey Boycott, famed for persevering at the crease, was my role model.

Unlike many sports, for an individual batsman one mistake is all it takes to end participation in the game. A mistake that may result from a moment’s inattention. Or a rush of blood to the head. A split second of indecision. A distracting thought. Conversely, sharpened focus, a micro-second’s pause, a determination not to let the overall circumstances get in the way of giving complete attention to the next moment, blotting out an earlier near miss – all these promote longevity and continuation in the game.

For a batsman, stroke selection at the critical moment is what it is all about. I recall hearing that the distinction between an average opening batsman (the example given was one Nick Compton, who never quite established himself as an England player) and Alastair Cook (the most successful opener of all time for England) is a tiny fraction of a second. Cook takes that little bit longer before committing himself to his stroke. He takes just a little more time to process, sub-consciously, the bowler’s action. That makes all the difference. How much of that is practice, how much is intuition and how much is personality, I don’t know. But this does makes you think.

In mediation, we operate with a mixture of spontaneity, flair, caution and discernment. Often, how we react in the moment makes all the difference. We need to be able to take risks sometimes, or we’d never move the process on. On the other hand, over-playing our own role, letting the ego prevail, can be fatal. It’s such a question of balance. Usually, of course, our errors are not decisive. The ball metaphorically drifts past the wicket into the safe hands of the wicket-keeper without snicking the bat or striking a wicket. It can be touch and go at times. We are all human, error prone.

What then sets apart a really effective mediator from the average? For me, it has to include an ability to focus on the process regardless of the outcome, an ability to operate with consummate skill in the moment, knowing that, paradoxically, this will enhance the prospect of a successful result. It has to include a willingness to practice skills, never assuming mastery, with humility about the reality of our role and its importance. I would add awareness of one’s own personality and psychology, and of those triggers which might set off a chain of events leading to unhelpful loss of confidence during mediation. It’s about standing back, surveying the field, viewing where the mediation players have positioned themselves, trying to work out where the opportunities lie for getting past unhelpful defences, picking the moment to drive towards a breakthrough.

And being brave enough to allow that extra momentary, fractional pause. A little more time before responding, a little more time to elicit – and hear – an answer and to process the real meaning. Concentration, even when tired at the end of a long day (remember that Alastair Cook once batted for 836 minutes in a crucial match, albeit over two days). An ability to stay engaged, raising your performance when all seems lost and, as with so many of the best sportspeople, seeing unexpected things in one’s peripheral vision that others would often miss.

A few seasons ago, my Scottish mediation business, Core Solutions, sponsored the Scotland cricket team. Our billboard carried the eye-catching slogan: “Mediation – There Are No Boundaries”. That nicely summed up our adventurous hopes for what we were doing. Mature reflection might suggest that recognition of boundaries is actually necessary too. In cricket, a draw is often seen as an unsatisfactory outcome for both sides, but it can also represent a realistic equilibrium when two well-matched sides have done their best.

In mediation, a negotiated agreement may also seem unsatisfactory if your objective has been victory. However, as we know so well, the optimum result in mediation may be both parties leaving with a sense of dissatisfaction – but knowing that, with this match finally over, a whole new game can start the following day, on a new wicket with fresh opportunity and renewed optimism.

Mediation and Innovation

One of the great things about mediation is that it enables you to be creative and to try new things. Not that long ago, I had four innovations occur in one mediation day.

Firstly, on the technological front, I found myself without a flip chart in the first plenary meeting in the main room. However, I was able to make use of my new micro projector (Phillips PicoPix) which attaches to my iPad, permitting me to simulate a flip chart using the Penultimate digital drawing app. Carefully removing a picture from the wall and projecting onto the wall gave me real flexibility to note and illustrate things as we went along, throughout that meeting, while remaining seated with the parties. Quite different from standing with a marker pen in hand.

The next two innovations came at the end as the agreement was being drawn up. The first was the inclusion at my suggestion of a modification of Collaborative Scotland’s Commitment to Respectful Dialogue: https://collaborativescotland.org/respectfuldialogue/. Having had some tense communications recently which affected their ability to make decisions, this gave the parties, a number of company directors, a benchmark for behaviour going forward. They would need to adhere to it of course.

Then the parties suggested that I, as mediator, be appointed to chair the next board meeting of the company as they waited for a new non-executive chairman to be found. For the first time for me, my tenure as mediator was to be extended in this specific way. This would enable me to continue to facilitate a difficult situation between partners who had been at loggerheads but who had a very exciting technological development to take to market.

Finally, after the important ritual of the signing of the final agreement, I was able to read from an article I had just come across in Time magazine. It was a summary of a year in space by American astronaut, Scott Kelly. I read these passages: “I’ve learned ….that small steps add up to a giant leap…. I’ve learned how important it is to sit and eat with other people” (as I often suggest to parties that we should do, we had had breakfast together that morning, breaking the ice). “I’ve learned a new empathy for other people, including people I don’t know, people I don’t like and people I disagree with. I’ve started letting people know I appreciate them, which can sometimes freak them out at first. It’s a bit out of character. But it’s something I’m glad to have learned to do and hope to keep doing.”

The key players laughed for the first time that day. They got the point.

A “Chance” Mediation Meeting

Where it is logistically possible (and that may only be in some cases), I have recently begun to suggest that I meet with parties and their lawyers on the evening before the full mediation day. I usually meet privately with each group for one hour to 90 minutes. People are slightly more relaxed and that can open up the mediation. I find I make a lot of progress during these times. That means that the following day gets off to a much faster start. And, overnight, people have things to consider just from the questions I ask and the fresh thinking which occurs. It also means that I can plan the choreography for the morning with greater clarity and assurance, getting to the heart of matters more quickly. This can bring the added benefit of a speedier day all round, with a significantly earlier finish than is often the case when starting cold on the mediation day.

This approach brought about a really useful moment in a recent mediation. I had held private meetings with the parties, a big corporate on one side, and life partners on the other who were in business together and involved in a long-lasting commercial relationship with the corporate. There were serious court proceedings ongoing, with a considerable amount of animosity and bitterness owing to events which had seemingly broken the relationship. In my meeting with them, I had pointed out to the partners that there were two participants on the corporate team who were new to the situation and that it might be useful for us to use the process to enable them to engage with these new players early the next day, so that they could convey their side of the story to people who might carry less baggage.

As I ate dinner in my hotel later in the evening, the “new guys” passed by and invited me to join them for a drink in the bar. (I had been unaware of the fact that they were staying there).  I explained that my independence as mediator prohibited such socialising with one party only. However, I did know that the partners were staying in the hotel. So, later, I took a walk to the bar in the hope that something useful might happen. The partners were seated at a table just a few feet from where the two new guys were sitting. Neither pair was aware of the other. Each was enjoying a drink. I moved between them and invited them to meet, saying that I thought it would be a good idea if I introduced them to each other. A very human moment followed. The awkwardness of the situation dissipated as they exchanged pleasantries and smiles, as well as recognition of the difficulties they faced with their dispute. I didn’t allow them to get into detail but it was enough to reveal the underlying decency of those present – and for each to say that they genuinely wanted an end to it all.

Less than twelve hours later, I sat in our plenary room as the same four plus one or two others (and one lawyer each) had a frank and honest discussion about what had occurred two years ago. Much greater understanding was achieved including, as usual, an expression of regret that they had not been able to have this conversation back when it all started to go wrong. The conversation was smoother and more direct because of the chance meeting the evening before.  Fascinating. What a process.

(Events and players changed in part to preserve anonymity and confidentiality)