Aftercare, Chardonnay and Arizona

Sitting on a panel of mediators in front of an audience of US insurance lawyers last month the topic of mediation aftercare came up. The view on all sides was that when mediations do not settle on the day the mediator’s involvement in the days and weeks that follow is now routine and expected .

Parties expect the mediator to be in contact by phone and email, maybe even over coffee or in a reconvened smaller group. These exchanges can continue over weeks, even months. I have once or twice attended court in mid-trial just before the lunch adjournment at the invitation of the parties to meet them and try to break the deadlock.

Some counsel like a light touch, others want the mediator to push hard. Except in the few cases of truly angry termination (and sometimes even in those) aftercare is taken for granted

Why is it so productive? Companies and individuals can get painted into a corner on the day of the mediation. People get tired and frustrated. Big organisations can simply take time to process a new view of a case as they turn the proverbial super-tanker.

In the hour the panel took to address the conference (in Phoenix, Arizona) I received two text messages.

The first was an unremarkable inquiry from my daughter as to why there was no chardonnay in the fridge at home. But the second from the general counsel of a major media company read simply “Deal Done!”.  A potentially nasty trial between the organisation and its departing Chief Executive had been due to start the next working day. I had overseen an exchange of offers that morning in Phoenix (the afternoon in London) by telephone and email.

I would have punched the air but I was too busy being English.  Sometimes the aftercare seems to be more challenging and more rewarding than the surgery itself.

Eat Toast In Bed – Go to Sleep With Crumbs

Sometimes in mediation, I ever so gently broach the subject of responsibility.

Take a construction defect case, and maybe also a joint venture dispute.

In private with the claimant party, I wonder out loud what measure of responsibility might be factored in for their part of the dispute they now found themselves consumed by.

I explain this may be important when evaluating any proposal on the table later in the day.

In the construction defect case I enquire what that measure might be – on the basis they accepted the cheapest tender by far from an outfit that turned out to have a sorry history – sure the builders are now cowboys – but could they not have found this out prior to contract?

In the JV case it was more along the lines – what would they factor in for their own decision to partner with someone who was perfectly honest and competent, but just ended up not being a good cultural fit for them?

The responses are often interesting.

Many resist the exercise. Legal merits trump all.

Some, it turns out, get angry at a rare lapse of judgement and are content to learn (and pay for) a lesson that stands them in good stead for the future.

As one party said recently, a little harshly I felt, ‘if you lie down with dogs – expect to get up with fleas’.

… crumbs or fleas. Hey, I get it.

A Baptism of Fire

Returning to London for a series of mediations this spring my cure for  jet-lag is a one-day Civil Justice Council workshop on the role of ADR in the civil justice system.

90 people packed into the ballroom of a central London hotel: High Court Judges, District Judges, Employment Judges, solicitors, barristers, arbitrators, mediators, the voluntary sector, civil servants from the Ministry of Justice and Her Majesty’s Court Service. As well – a sign of the times, various providers of dispute resolution software.

Chaired by Brick Court’s Bill Wood QC there were no speeches, no talking heads and no power points. Just fast moving discussion;

Why hasn’t the ADR message got through to the public? Are the existing prompts in the system working? If ADR can help parties without representation how is that to be funded and provided? Has ADR been treated as being limited to mediation for too long? Is some form of compulsion or automatic referral to ADR inescapable? If you have to provide at least some opt-outs does that inevitably bog the system down in satellite arguments? How big are the political obstacles in the path of radical reform? Will online access to the Court make all of these questions obsolete or raise new challenges? And what does the overseas experience tell us?

None of us envied the six members of the working group who now have to pick the bones out of it all and write a final report!

Read the CJC ADR Working Group’s Interim Report

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.

Milestone Civil Justice Council Report Out for Comment

An expert working group of the Civil Justice Council has published a comprehensive interim report on the role of ADR in civil justice in England and Wales.

The CJC is now seeking written submissions and recommendations of the report, ahead of organising a seminar at which the proposals can be discussed and a final report prepared and submitted to the Government.

Chairman of the CJC Working Group is Brick Court’s Bill Wood QC

ADR has failed to achieve the integral position in the civil justice system that was intended and expected for it at the time of Woolf. The CJC assembled this Working Group (including representatives of the Bench, the professions, the ADR community and an academic) to try to understand the reasons for failure and to suggest some possible solutions.

Our aim is to stimulate a debate between all stake-holders as to the nature of the problem and the possible practical solutions, including the thorny issue of mandatory mediation. With the Online Court in development and pilot local mediation schemes up and running in a number of centres, this is an exciting time. The Report does not try to be utterly comprehensive nor does it purport to have all the answers but we hope it can make a contribution, and that in due course a final report can set out a widely-supported basis for moving forward.

Chairman of the CJC, Sir Terence Etherton, the Master of the Rolls

ADR is a very effective means of resolving civil disputes quickly and cheaply. This report explores the current use of ADR and the reasons why it is not used more frequently. As we prepare to enter a digital age of dispute resolution it is an ideal time to look in detail at how the potential for ADR can be maximized.

Read the full report

Written submissions by Friday 15 December 2017 to civiljusticecouncil@judiciary.gsi.gov.uk.

In other BC news, Bill Wood has recently been reappointed to the Civil Justice Council until 2020.