Generational Change

ley-contact-matthew-rushton-2Continuing our series of guest posts, here is an extract from Matthew Rushton’s superb article at JAMS International where he picks up on 3 broad ADR themes in the UK market. One of those themes was the generational change occuring in the ranks of UK mediators

…Let’s move on to think a little about commercial mediation, and my second theme of generational change.

The shape of the UK mediation market reflects that of other parts of the legal profession in which very few enjoy a very substantial market share. In the 1930s, FE Smith (later Lord Birkenhead) described the English Bar as a profession of 2,000 with enough work for 1000, done by 500. In commercial mediation circles, these ratios seem unattainably aspirational. Stephen Walker, a mediator and commentator, has suggested that commercial mediation is a “cottage industry of about 6,000 with work for 500 carried out by 100”. That seems spot on to me.

Mediation remains a “nascent” profession – if indeed it can be considered a profession. The first providers into the UK market opened their doors in 1989, but it wasn’t until The Woolf Reforms to civil procedure a decade later that mediation became entrenched in the mainstream of dispute resolution.

Thus those with the biggest practices now are – with notable exceptions – those first onto the bandwagon in the early 1990s.

But that is changing. With a handful of deaths and retirements, some of the pioneers are slowly falling away. And that, in my view, is having two effects:

  1. Work is less concentrated in the hands of the very few than previously.
  2. More interestingly, those who are replacing the pioneers have a different character, outlook and approach.

The second generation are not, on the whole, evangelicals. They have not had to travel the country banging on doors, explaining the process and constantly educating potential users. Most of them are commercial litigators whose experience of mediation comes not from text books and the class room, but from acting as counsel in dozens and dozens of mediations.

Thus, they arrive as mediators with an astute understanding of what they think the process is about: what they’ve seen work, what they’ve seen fail. They understand first-hand what clients like and dislike about the process, and tailor their own offering accordingly.

And this causes more rancour, disagreement and falling out than you’d ever believe possible among a profession of peace-makers.

The gulf between mediation theory and mediation practice has always s been a sore point. Collaboration, problem solving, brainstorming options for mutual gain, expanding the pie – the foundation blocks of mediation are seldom in evidence in mediations I’ve observed.

Mediators are taught that it is a future-focused process: the parties aren’t there to rehearse legal arguments. Mediators are taught not to offer a view on the merits; they are taught not to suggest settlement figures: that’s the job of the parties. It is, after all, the parties’ day – they must own the dispute, and own the solution.

But, the reality is often different. People, and companies come to mediation for all kinds of different reasons – some are well prepared, some are not. Some are experienced users of mediation, some are not. Some genuinely want to settle – some merely want to advance their understanding of the other side’s case for ongoing litigation.

Very often, what they want from a mediator, is an independent third party who – to paraphrase Geoff Sharp– gently pulls at the loose threads in their opponent’s case (and indeed, sometimes their own) – knowing when clients might be badly advised, or simply refusing to listen to good advice. A mediator can reframe those arguments – and in the same way that my son would literally rather drown than let me teach him to swim – advice is almost always better, more politely, received from a “stranger”.

If what I’m describing is sounding somewhat closer to arbitration – where the neutral third party is responsible for the outcome, then I would suggest that could be what the market is asking for.

And if that’s the case, it’s only right that mediation accommodates that. So in some ways this change wrought by a new generation of commercial mediators ties into my first theme – that of leveraging the flexibility of the process into new and different areas in new and different guises. Many will no doubt regret that, but more optimistically, I choose to view that as progress.

Matthew is a regular commentator on ADR and is Deputy Director at JAMS International based in London

The Myth Of The Forceful Mediator

logo-top_gunA wonderfully brave guest post on muscle mediators by our colleague, Jeff Kichaven, a commercial mediator from Los Angeles (first published by Law360, New York, February 2017)

Recently, I was talking with a friend, a bet-your-company case litigator from New York City. When the topic turned to mediation, the conversation took a turn commonly taken when I talk with lawyers who either started out or ended up in the Big Apple:

“Do you know what I wish mediators would do?” “Please tell me.” “Be more forceful. I wish that mediators would be more forceful. Even with me.”

Forceful top-gun litigators, from New York City and elsewhere, have been making this request for years. But mediators seem not to comply. Because the requests continue. Why is this?

The reason is straightforward: When mediators rely on force to get cases settled, it doesn’t work. The purpose of this article, therefore, is to break this cycle. It’s time to debunk the myth of the forceful mediator, and to suggest more productive ways for top-gun litigators and top-flight mediators to engage.

There are a few self-styled elite mediators who work in New York City and claim success through forcefulness, their ability to whup good lawyers into submission. They are mainly retired judges who rely on their high status, rather than mediation skills, to generate work. Since this forcefulness is claimed to be effective, we must ask: Does it really work? And, even if it does get cases settled, is this forcefulness good for the lawyers on the receiving end of the whupping, or for their clients? And, are there ways to get cases settled without suffering the ills that mediator forcefulness causes?

I question forceful mediation for several reasons. First, I wonder why adults put up with being scolded, yelled and cussed at by the “Forceful Few.” Who likes to be treated this way? Second, I wonder about the impact of this conduct on the relationship between lawyers and their clients. Does it not hurt a lawyer’s relationship with the client when a member of the Forceful Few shows that lawyer up, makes him wrong, in the presence of his client? Finally, does not this mediator forcefulness naturally call forth forceful resistance from the lawyer, and actually make settlements harder to achieve?

My own experience is that a lawyer’s natural response to mediator force is forceful resistance. This is especially, but far from exclusively, true among New Yorkers. When I have tried to be forceful (usually with a lawyer who is obviously wrong about a position, but stubbornly persists despite all entreaties to logic), I have usually gotten a response along the lines of, “Who are you to tell me I am wrong? I have been living with this case for months [or sometimes, years], I have read all the documents, I have attended the depositions, I have the seen how the judge reacts to all of this at numerous hearings. All you know is what you read in the brief that my associate threw together for you two days ago.” Other mediators tell me that their experiences are similar.

At this point, force causes arguments to ensue, conversations to deteriorate and settlements to be lost. The lawyers’ response is so natural that we should view it as an application of Newton’s Third Law: “For every action, there is an equal and opposite reaction.” Mediator force begets lawyer force in return, usually along the lines described above. It is nearly impossible for a mediator to win an argument with a lawyer who believes that he is better prepared than the mediator on the facts and law of the case. The Forceful Few think that the settlements are lost because the lawyers are just so darn stubborn. But it’s not so simple. It’s the Forceful Few’s own conduct which provokes and causes the attorney stubbornness of which these mediators complain. For mediator force to work, especially with top-gun lawyers, that force has to be so overwhelming, such a clear showing that the lawyer is “wrong,” that it virtually guarantees damage to that lawyer’s relationship with their client.

So the use of force by mediators is just not worth it. And, fortunately, there are better ways.

The answer comes from a different New York City tradition and style. Francis Wellman was a New York City legend; Manhattan’s most outstanding trial lawyer a century ago. Wellman’s classic, “The Art of Cross-Examination” (1903), is still a must-read for students of the game. Wellman urged lawyers to sail past the siren song of head-on, forceful confrontations in cross-examination for the same reasons that forceful confrontation is a trap for mediators. Subtlety, to the extent we can muster and master it, is more effective, in cross-examination and mediation, in New York City and throughout the country, then and now. Here’s what Wellman learned from his New York City trial practice:

“It is absurd to suppose that any witness who has sworn positively to a certain set of facts, even if he has inadvertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. “If the cross-examiner allows the witness to see, by his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair-minded spirit, which, if the cross examiner is clever, will soon disclose the weak points in the testimony.” Wellman, pp. 27-28.

Wellman’s teachings about cross-examination equally inform the tough-love conversations between mediators and lawyers which are at the heart of good mediation. It is the rare lawyer who is going to be readily induced to acknowledge that his theory of the case is all wet. If lawyers think they are under attack by mediators, especially in front of their clients, they will straighten in their chairs and defy the mediators at once. So, instead of using force, we mediators, like Wellman’s model New York City cross examiner, try to be “courteous and conciliatory” to the mistaken lawyer (who is, after all, still a client of the mediator and entitled to courteous treatment for that reason alone).

We want to enter into a discussion of the lawyer’s theory of the case in a fair-minded spirit. If the mediator is good, the lawyer will begin to see weaknesses he had not seen before. Many times, I feel as if I am conducting a first-year law class using the Socratic method with a lawyer. If I can ask questions skillfully, and in an honest spirit of curiosity and helpfulness, in a search for truth, mistaken lawyers often realize, seemingly all by themselves, that they have issues.

I am not aware of mediation training anywhere in the country which teaches that scolding, yelling, cussing or other varieties of confrontation and “forcefulness” are anything other than desperation moves, to be avoided in favor of more subtle techniques. And, from my own personal experience, I can tell you that I have used more subtle techniques with top-gun lawyers from all over the country, including from New York City, achieving settlements if settlements are at all reasonably possible, without the damage that “forceful” mediation can cause.

A Postscript

In 1981 or 1982, as an associate in a Los Angeles law firm, I attended a program on professionalism for young lawyers presented by Ellis Horvitz, California’s premier appellate lawyer, universally esteemed then even as he is now, in retirement, as a lion of the bar.

The program took place at Kowloon on Pico near La Cienega, maybe two miles east of Century City where I worked, a restaurant where my parents occasionally liked to go for Chinese food.

As I looked at Horvitz across the dining room eating lunch that day before his talk, I remember thinking he was a very old man. He was probably 55.

When Horvitz was formally introduced, he calmly brushed by Kowloon’s plastic palm trees and ersatz tikis, and took his place behind a small podium. About 75 of us associates waited in eager silence.

“Over the many years…” the mandarin began, “many of our most crushing defeats …” he said before a long pause, “have come at the hands …” slowly, slowly, before another long pause, keeping all of us at the edge of our seats, “… of perfect ladies and gentlemen.”

I have never forgotten that lesson. That’s the way to be a lawyer. It’s the way to be a mediator, too.

Jeff Kichaven is principal mediator at Jeff Kichaven Commercial Mediation in Los Angeles. He focuses on insurance, intellectual property and professional liability matters.

Leading UK Sets and Individuals Recognised

Twenty-five UK barristers’ chambers are recognised for exceptional performances in the latest research by Who’s Who Legal across 26 practice areas, including mediation.

Brick Court Chambers is a large and prestigious commercial, competition and public law set with outstanding strength and depth, earning recognition in half the practice area chapters in this edition… Brick Court stands out in particular for its undeniably top-tier competition law practice, as well as its commercial expertise in the banking and finance, insurance and reinsurance, and energy sectors.

The set is also a leader in alternative dispute resolution, earning multiple high-status listings in our arbitration and mediation chapters.

Of the top four mediator silks recognised by Who’s Who as “most highly regarded” two of those four are from Brick Court;

Brick Court Chambers boast an impressive bench of commercial mediators with extensive experience in high-profile disputes worldwide. Three prominent silks are recognised.

Door tenant John Sturrock QC is considered a “thought leader” in the area. Sources cite his keen intellect”, “preparation to get at core issues” and “massive wealth of experience in difficult negotiation situations”. Another respondent maintains, “John is the best mediator I have met and has brought about a settlement in two cases which I thought resolution was impossible.”

William Wood QC is also regarded as a “thought leader”, earning widespread praise from peers who regard him as a “stellar performer” and “one of the world’s top mediators”. Wood regularly mediates on a wide variety of complex and high-profile disputes internationally, including a high number of competition, insurance and telecoms matters.

The “extremely popular and successful” Stephen Ruttle QC is a leading mediator in the international commercial sphere praised as an “innovator” and “extraordinary performer”.

Tony Willis of Brick Court Chambers is an eminent mediator with an excellent reputation in the field. He often handles cases across Europe and the Middle East.

Find the Right Thread to Pull

Litigators discussing the wisdom of hiring an evaluative mediator at a recent ADR conference;

“It’s just too risky – we don’t want a mediator telling us anything, we can get a Judge to do that. What’s more it make s it harder to settle, not easier, if doubt goes out of the room”

When one of the huddle said “…hang on a minute – I’m not talking about a thumbs up/thumbs down kinda guy, I want someone who finds the right thread to pull so I can resist (so as to make my argument) or allow me an organised retreat if I choose, that’s what I mean by evaluative…’

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.