In Defence of (Defensive) Mediators

Ask most mediators of a certain stripe and they will be only too willing to tell you the story of long ago when they left their law firm or maybe even chambers to become a mediator…. that giant leap of faith, that alarming drop in revenue.

Some will have run away from practice only to later stumble over mediation. Others will have run, arms outstretched in an embrace, towards mediation. And it usually shows in the sort of mediator they become in the years that follow.

But all mediators of this genre have a certain sensitivity in common.

So it was well into the afternoon of a mediation this past week, one of the lawyers who I had last seen when I was at my firm in the 1990’s said to me; ‘So Geoff, when did you give up real law?’

At this point, two answers are possible.

One for a valued and hopefully future consumer of my mediation services; ‘Ha! Spot on Brian – I haven’t opened a law book since 1998’.

But it was the other, giving life to that sensitivity all these years later, that sprang from my lips;

Well, you know Brian, there’s a lot of paddling under the water for us mediators. I have to be able to understand, very quickly, how you twist your square causation argument into the round hole of the law – and test you on it without, of course, putting you on the spot.

Before I can do that though, I need to actually know the law and have a good eye for legal BS so I can ask you, in the nicest possible way, to explain it to me again so others at the table just might pick up the soft spots I got, but they missed, on your first run through.

Sorry Brian, but it felt good.

Brick Court in the Pacific

Brick Court mediator, Geoff Sharp, has been teaching mediation at the University of the South Pacific in the Cook Islands this week courtesy of Cook Islands Law Society, New Zealand Law Society and Massey University.

The course was held at the USP campus on the island of Rarotonga in the Southern Group of 15 tiny islands that make up the Cooks. The resident population of all islands in the group is estimated to be between 11,000 and 12,000, almost all Cook Islands Maori.

By the way, the Cook Islands is one of the few countries in the world to ask a question about coconut consumption as a part of its census – and it was revealed in 2017 that 2,947 households use 28,461 coconuts every week. That’s 10 coconuts per home per week!

In some ways teaching mediation anywhere in the Pacific is taking coals to Newcastle, there being a strong tradition of conflict resolution by mediation within Pacifika social order – in particular in the many villages dotted throughout the islands, often remote from any formal system of justice.

But the modern form, especially for civil disputes – which are mainly land issues – has been eagerly awaited. It won’t be long before mediation is mainstream in the Cooks and it will be very colourful with plenty of food, prayer and maybe even song integrated into the process.

Thanks go to other faculty members, Prof Laurence Boulle, Virginia Goldblatt (co authors of Mediation: Skills and Strategies) and Dick Edwards of NZLS CLE who made it all happen.

Sophisticated Mediation Advocacy : “Out Loud Adverse Advice”

When I am mediating I often encourage counsel ‘to be brave’.

Easier said than done I know, but bravery can take many forms in mediation.

From counsel backing their own advice when the easier road would be to settle – to something a little more counter intuitive and possibly risky – like strategically signaling vulnerability at the table, often achieved by counsel giving the client out loud adverse advice during a joint session.

Yeah, opposite counsel may be right I guess – we will struggle if that’s the way the judge approaches liability on this aspect – and by the way, we are the wrong side of 60/40 odds. But once/if we get through that, quantum is downhill with a minimum of 1m and on a good day 1.95m – their risk that we get to try quantum is unacceptable and (as counsel turns back across the table) we know you can’t live with that for 15 months until trial

What’s going on here?

Well, good mediation advocates know they don’t have to prove their position is the correct one – their task is fundamentally different at mediation – instead they are asking themselves what can I do to move this case towards settlement?

I have heard it said that all you need to bring to mediation is a big stick – errant nonsense of course and ironically, I have seen some very small sticks, aimed very carefully, obliterate their target.

So, good advocates don’t waste energy debating the legals up hill and down dale – rather, just enough back and forth to condition the debate and create doubt (and therefore risk) for the other side – and if they’re really, really good, by using front-foot concepts like preemptive disclosure and inoculation.

Inoculation is an especially intriguing notion and again belongs to next level of mediation advocacy but, other than what appears below, will have to wait for a future post.

Good counsel reason that voluntary disclosure of negative information removes the sting of negativity and divests the other side of the opportunity to expose and capitalise on it.

I delight in seeing brave mediation advocates making carefully considered concessions on points that do not directly undermine their ultimate goal –  which, in the right hands, is an extremely effective mediation posture. And that’s not to say they would do the same thing at trial – that’s the point, mediation advocacy is so very different.

But great caution is needed – there is an art to this high-wire act and it’s best to read this before you try it at the table; Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (Prof Kathryn Stanchi, Temple University – James E. Beasley School of Law).

… it is not surprising that there is considerable controversy among both appellate practitioners and trial lawyers regarding when and how to address information that potentially undermines the position they are advocating. The vehemence of the disagreement among lawyers about the appropriate strategy, as well as the pain of the dilemma, is a testament to the high stakes of the question.

The theory of inoculation is based on the idea that advocates can make the recipient of a persuasive message “resistant” to opposing arguments, much like a vaccination makes a patient resistant to disease… inoculation studies show that raising and refuting adverse information works better than a wholly positive message to insulate message recipients from later attacks on the message… the theory is that introducing a “small dose” of a message contrary to the persuader’s position makes the message recipient immune to attacks from the opposing side.

The key to inoculation is the warning of the impending attack, or “threat”, combined with the refutation of the attack. Refutation alone is not sufficient to produce the inoculation response. The two components work in tandem – for the inoculation response to occur, challenges must be explicitly raised and then answered.

Remember you heard it here at BCC first: “out loud adverse advice”

Read the full article in which Prof Stanchi explains a range of fascinating concepts like bad law, bad facts, stealing thunder, preemptive disclosure and inoculation theory – all useful to the advanced mediation advocate.

J. G . Mean and (Brackets)

My mediations are haunted by a fellow called J. G. Mean who just keeps cropping up. I can be as creative as I like but all too soon JG is there in the room. You encourage some venting, explore various forms of reality, re-frame a little, season the whole boiling with some cognitive dissonance and stand well back – only for somebody to say, “Just Get Me A Number!”.

Now there are various antidotes to JG*. (And in the right place, at the right time JG can be hugely welcome.) But the antidote I have always wanted to try is The Bracket.

We have known for many years that our colleagues in the US were using brackets routinely and successfully to settle cases. I have used them myself, just not in this country. This is the process whereby rather than simply trading offer and counter-offer a party makes a conditional offer: “I will go to £500,000 but only if you come down to £1 million” or more simply says, “My bracket is £500,000 to £1 million. Will they work in that bracket?”.

A word of warning here to our transatlantic readers. If you persevere with this post you will learn nothing. Indeed you may  feel rather like Roger Federer reading a schoolboy’s over-excited essay about his first tennis lesson: simplistic  and with the odd  mistake. Apologies

My own attempts to promote the use of brackets in London have met with abject failure. The parties and their advisors look at me as if I have just suggested trial by combat. “(Sigh) Just get me a number, Bill”

That is, until last week.

Now it is true that last week circumstances were not entirely typical.

First, there were US as well as London lawyers in both rooms so each side had a source of comfort and reassurance as they faced this unusual and discomfiting challenge. Some may object that the record is therefore wind-assisted.

Second, I have to say the mediator was unusually persuasive. Sensing that the door was just slightly ajar I came up with this successful formulation: “Please, please, please be my first London mediation to settle using brackets”. I’ve always thought abject supplication was an effective dispute resolution technique and so it proved in this case.

The magic of brackets, I can now tell you on the basis of extensive experience, turns out to be “the mid-point”.

Of course, in one sense a bracket is at best a conditional offer of the lower figure in the bracket. And the “condition” usually remains unfulfilled. This is because the counter-proposal tends to be another different bracket. So the response in the above example might be: “No we can’t accept your bracket. But we will come down to £1.4 million if you come up to £800,000.”

At a purely prosaic level nothing much has been achieved. But there is poetry here if you look for it. Turns out the bracket connoisseurs are keeping an eye on the mid-point because the most important message of the bracket is that the mid-point of the range is implicitly being signalled as the killing zone for the deal.  The parties tend (at least in private) to say “I have moved my midpoint” more readily than they say they have moved the bracket itself. “She must like my mid-point”, they muse to the mediator.

The midpoint is not being formally offered. It is not even being referred to explicitly. But it shimmers temptingly in the half-light of the negotiations.

Since last week’s triumph things are back to normal. I have once again failed to sell brackets in a couple of purely domestic mediations (“JG! How nice to see you!”). The gleam in my eye is no doubt even more off-putting than before.

Because I have seen the future. Brackets will be here soon, with no more than the customary time-lag, just like hamburgers, rock ‘n’ roll and indeed mediation itself before them.

And they work!

*The best of them set out in the excellent “Making Money Talk” by J Anderson Little

John Sturrock reflects

… on Edinburgh, London and the challenges facing mediation everywhere….

John Sturrock QC, the founder of Core Solutions in Edinburgh and “Scotland’s finest mediator” (Legal 500) has now been a central member of the Brick Court team for two years.

I caught up with John on his way to the airport. He had just left a foreshortened Select Committee meeting on Brexit at Westminster, which he had been facilitating in his Special Adviser role (the General Election announcement had distracted his intended audience). He was flying to San Francisco to speak at an American Bar Association Dispute Resolution conference before going on to Memphis, Tennessee for the International Academy of Mediators conference. Such is the life of a mediation thought-leader!

Q : John what kind of litigation practice did you have at the Edinburgh Bar in the days before mediation discovered you? Have you left those experiences behind or do they still inform the work you do?

 I had a busy and varied civil and commercial practice. We tend to specialise less at the Scottish Bar so my portfolio included a wide range corporate and commercial work. That gives me a really good insight as a mediator into many different types of case.

So I was junior counsel in the then largest patent action in the Scottish courts. I handled major litigation arising out of the tobacco and pharmaceutical industries, property valuation (including petro-chemical plants, large entertainment venues and football stadiums!), banking, oil and gas, construction, planning, judicial review and the usual range of professional indemnity cases involving all sorts of disciplines. Along the way I paid a visit to the House of Lords in which my argument as junior counsel for the appellant on the matter of foreseeability prevailed – a moment of pleasure not to be shared overtly with my learned senior!!

Q : Scotland, not least because of your own efforts, has become something of a mecca for dispute resolution and mediation in particular. Do you have a sense that Scotland punches above its weight in ADR matters? Modesty aside how has this come about?

I think we need to be realistic. Scotland has seen a really significant rise in the use of mediation in commercial cases. And, yes, like you Bill, having left litigation practice to work full time in mediation and dispute resolution, I take some pleasure in that development, in which I have invested my professional career for over fifteen years. But we are still behind other jurisdictions in judicial support.

I sense this is changing now with a quite radical new leadership in our courts. However, this means that I often mediate in situations where the parties are choosing to do so because they want to – not because a court will penalise them for not doing so – and also earlier when more imaginative approaches can be taken. I am a great believer in making best use of the mediation process to help the key players achieve really useful results for their business.

Q : You were busy mediating in London well before you joined Chambers. But I wonder what differences you notice between London and other mediation environments in which you work in terms of the way parties participate in mediations and in their expectations of you?

Interesting question. I sense that there is greater expectation that there are particular ways in which mediators will act. Sometimes there is a more pro forma way which people have developed over a number of years and through great experience. I think one needs to be sensitive to that and the benefits which people have seen accrue. On the other hand, one of the themes at the ABA conference is likely to be the extent to which mediation in the US (especially in Southern California) has become formulaic and the province of the litigation profession. The fear expressed in the US is that mediation is now just a tool for use to achieve (or broker) late settlement. Indeed, they are proposing an alternative “early dispute resolution” model which seems to be just mediation carried out early! We need to avoid falling into the trap of being too predictable , I suggest.

Q : You must have one of the most varied portfolios of any ADR professional that I can think of, with a practice reaching into government, political parties, policy, the environment, churches, industry, as well as covering the narrow litigation-centred world I work in. Do they all complement each other and spark off each other or do you simply have to wear a different head for each of them?

The fundamentals are the same I think. The human condition, by definition, is universal. They say that there are only five themes in Hollywood! The facts and circumstances differ, the emotional component is expressed differently, the players have different drivers, and so on. But the beauty of our role is that, because we enablers and not fixers, we can draw on these many experiences and often use a technique or approach from another environment to help in the instant case. I seek to adapt to the “culture” wherever I am or whatever I am asked to deal with, and that means avoiding stereotyping or assuming that any situation fits into a particular box.

So, there is a sense of each mediation (or “facilitation”, if the “m” word is not the right one) providing a rich resource for all the others. You use the word “spark”: I think that is really important. When we are at our best as mediators, our job is to help spark others into new ways of approaching difficult problems and to do so with energy and commitment. I regard myself as very fortunate to work with such a diverse range of people and issues.

Next time I talk to our New Zealand-based mediator, Geoff Sharp