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)

Challenging Assumptions in Mediation

I share examples from two very different mediations, each challenging some assumptions about what can be achieved – and how.

Number one: a dispute about interpretation and application of a limitation clause in a commercial contract. No factual dispute at all. In a large construction claim arising out of building a public facility in an overseas jurisdiction, the parties had agreed that the claim was so high (multi-tens of millions) that whatever the decision on the matter of interpretation, it was unnecessary to explore the figures. Similarly, primary liability was not in issue. Subject to a couple of further interpretation variables, if the clause provided for A, then x was due; if B, then y would be payable.

Classically, this fell into that small category of cases for which mediation has often been deemed inappropriate – or unnecessary. It was a simple point of law for a judge or arbitrator to decide. But here we were at 11.15am, after the lawyers had met with me to prepare an agenda of the issues requiring to be addressed, each party (lawyer and client) laying out its arguments in front of the other’s legal advisers and client. They were analysing legal propositions and the risk attaching, with me posing some questions about the meaning being ascribed to certain words in a contractual cap and inquiring about the advice tendered by leading counsel.

It still took several hours to explore the risks and opportunity costs, test the realism of some key arguments, and deploy “Mr Justice Not Very Bright “ in each room. For one reason or another, this notional judge tends to ask awkward questions, as if he does not understand the points being made. He proves to be a useful tool on occasion, sometimes dropping hints about how he might view things in a court. He performs the same role privately for all parties, but in different ways of course. And he always qualifies his comments with the observation that he does not have complete knowledge and that parties and their lawyers are completely free to disregard his remarks.

Incidentally, while my penchant for inviting the clients and counsel to join me for a quick pastry or “breakfast” at an early stage does not always meet with ready approval, here it worked a treat. In this session, the principals soon discovered a common bond from the past in their industry, and this gave them much to discuss throughout the day, as well as generating the goodwill to enable them to meet and complete the deal when the lawyers needed that extra commercial input later in the day. It was in their corporate interests to reach an agreement and they did, on the back of the risk analyses which the day had encouraged and empowered them to conduct.

Number two: an oil and gas employment dispute involving a very senior strategic adviser and his erstwhile employer. It seemed to be a classic for a bit of relationship-building, as hurt and humiliation were high on the list of the consequences of an unforeseen redundancy. It also seemed to be as much about ego as about money.

The two protagonists could still speak fairly amicably to each other in a kind of mentor/mentee relationship. Inviting them to meet together early in the day would have been an obvious strategy for this mediator, with an opportunity for each to set out how they saw things, get things off the chest, give explanations for what had happened, enhance understanding, acknowledge the other, and so on.

However, contrary to many of these types of cases, there was no meeting at all between the parties until they came together to sign the settlement agreement at 5.30pm. All negotiations were conducted through or with the two very able lawyers. And when the parties did meet, the clients were soon chatting away, almost as if they might start their working relationship again. They won’t but the geniality confounded many assumptions I might have made. Keeping them separate until an acceptable arrangement had been achieved had worked well.

One small, notable, deviation from the norm may have been the key in this one. I had arranged to meet each party and his lawyer at my hotel the evening before, just to “get to know” them. At the crossover point between meetings, they bumped into each other for the first time in months. They had a pleasant exchange of words. Maybe, in that informal environment and at that moment, that meeting was all that was needed to take the edge off the anxieties about what was to come next day and temper the stored up hostility of the past.

We’ll never know, but what we do know as mediators is that we are always learning and that there is no fixed way to do this.

Olympian Mediation?

The Olympics have come and gone with all of the emotion and inspiration they bring. In our recent, fully-subscribed, residential Summer School on mediation skills for leaders, we reflected on the learning from Rio. We watched a video replay of the men’s taekwondo -80kg final in which Team GB’s Lutalo Muhammad lost to his Ivory Coast opponent in the last second of the bout, giving the latter his country’s first ever Olympic gold medal.

Unmitigated tragedy for one, unremitting joy for another. Tears of pain and tears of exhilaration. And it all swung on the events of one second. A momentary loss of concentration, perhaps assuming that victory was assured. On the other hand, a moment of persistence, never say die, it’s not over until….

Which athlete will benefit most from this experience? That may not be as obvious as it first appears. Loss and suffering are an essential part of the human journey. Gold medals are rare. Success may be measured just as much by how we deal with failure as with a “winning” achievement.

That Olympic story gave our course participants the prompt to discuss how much in life happens in the margins, in a moment. And to recognise that how we react under pressure in that moment may define us and the future of others, whether as mediators or more generally. Indeed, we realised how such a future may be determined simply by a remark made or a question asked, a raised eyebrow or a furrowed forehead. We realised how precision of language, a short pause, self-discipline in reacting to unforeseen events, can all shape a conversation, a new business alliance, our approach to impending conflict or indeed whether we go to war. In that last example, for one or two in exalted positions, that reaction might even determine whether we press a certain button or not.

At the same time, top athletes must learn to perform without hesitation: if Usain Bolt had paused in the 100 metres final, he would not hold three Gold medals from each of the last three Olympics. In another setting, the ability to react in the heat of the moment with poise and skill may mark out the master surgeon from his peers. And what about the police officer faced with an apparently armed person seemingly intent on killing? No time to delay…. Sometimes the choices we make, in spite of months or years of training, will lead to outcomes which will be judged using a binary, “hindsight is a great thing” assessment, as “wrong”.

In our mediation Summer School, these considerations led us to acknowledge the need both to practice effective skills until they become second nature and, paradoxically perhaps, to be much more consciously aware of what, why and how we are doing or communicating at any particular moment – which might just be a pivotal one in a mediation or meeting. Touchpoints, we might call them – or, as a senior team leader in UK Sport just back from Rio described them to me, “traceable moments”.

In some recent mediations, I have been aware of several of these traceable moments. There was the meeting of an estranged mother and son in a mediation about a family business. They hadn’t spoken for many months and the judgment call for me was whether to leave them alone to chat or sit with them in case animosity spilled over. I took the former route, almost instinctively, and they reconciled in the privacy of being on their own, which made resolving business issues much easier. Of course, what had gone before, quite consciously, in setting up the meeting (discussing what, who, how, when, where and why) had been important to that rewarding outcome.

In another situation, I chose to break a golden rule not to use judgmental language. I described the conversation between two business people as akin to “wallowing in a morass of self-indulgence”. (They had already indicated that they, frank speakers themselves, would welcome frank speaking from me). For one, my approach worked really well. For the other, some immediate repair work was required. Sometimes, we as mediators need to take a risk. Even then, though, managing the risk is important: to minimise the prospect of an adverse outcome and maximise the positive impact of an intervention. We can ask ourselves, in that moment of pause: “Why are we making this point at this time to these people in this way using these words?”

In a recent article in Time Magazine’s online resource, readers were treated to nine questions they should ask their doctors. The last was “What question have I not asked that I should have asked?” For some of us, seeking only reassurance, that might of course be the very last question we wish to ask our doctor! But, as a mediator, it is one of the most powerful. “What else do you think I need to know which will help me to help you all?”, I asked of the chairman of a public governance body, just as I was about to close off our meeting. What came in response was gold dust – and enabled me to begin to reshape the whole process. It was a question in the margins but it was crucial to our progress.

I conclude with an example that may not seem to be about margins at all but which might be described as substantial risk-taking, or foolishness! Not that long ago, in a multi-million pound matter in which the parties had the luxury of designing the process, we decided to have an initial day of mediation (or facilitation, just to soften the tone) followed two weeks later by two further days. The first day was all about confidence-building in delivering a long term project, renewal of trust, sharing frustrations, identifying big issues (and problems), recommitting to the overall strategy, (re)building relationships and exploring communication.

In order to try to make the best of this, I arranged the day as a hybrid: a mix of the first day of the Summer School I refer to above (presented as a kind of “Master Class in Contract Management”) and the opening stages of a traditional mediation. It seemed to work a treat. There was an element of surprise – and real engagement – in our discussions about developments in neuro-science and cognitive errors (including the fight and flight responses and system 1 and 2 thinking), conceiving a proper structure or framework for negotiations, and the ideas behind interest-based/gain optimising theories for creating value (I try to avoid using “win-win”).

We even discussed that taekwondo final and the learning from it. Using their own situation and differences, the parties explored and practiced questioning skills and (real) listening (in pairs), along with strategies for really effective preparation (in groups). We recognised that this sort of system 2 work is energy-consuming and tiring. It took – and takes – conscious effort. Just the sort of effort that Olympic athletes commit to for years.

The result of the day was lots of little marginal gains, specks of gold dust, which would enable the parties to collaborate in a way they had not had the capability to do thus far. After an exercise involving a flip chart and sending the project leaders from each party out of the room to draft a joint statement of purpose, the whole group agreed that a reframed project objective would be to “work together to build a truly world-class…..”. In setting that objective and beginning the journey with new skills, they had become Olympians themselves.