The International Evolution of Mediation

pepp-10-logo-eduPepperdine University School of Law’s Tom Stipanowich and Karinya Verghese have recently published a well researched article exposing fascinating regional differences in mediation practice which include regional divergence such as the relative use or non-use of joint sessions; how mediators handle information received from parties in caucus and mediator evaluation and opinion giving.

The article is a revised and expanded version of lectures delivered by Tom as the New Zealand Law Foundation’s International Dispute Resolution Visiting Scholar. The full text is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457

A Christmas Treat

post-carmel-bgBill Wood QC recently had the good fortune to co-mediate with retired US Federal Court Judge Layn Phillips of Newport Beach, California.

Take a moment out from your Christmas rush to watch a stunning short movie called The Mediatorwhere a cowboy mediator seeks to resolve a dispute between a boy and an Indian.

Beautifully shot, written and directed by two of Layn’s talented family, Graham and Parker Phillips, it’s so good you could even chalk it up to CPD.

… but it’s fair to say it doesn’t have the ending that most of us aim for.

Failure to Mediate… next case please

In the High Court: Gresport Finance Limited v Battaglia [2015] EWHC 2709 (Ch) the Chief Master found that the Defendant had agreed to a mediation but had then failed to attend and had failed to provide reasons for non attendance…. read more

The Client as Decision-Maker

The silence was palpable. Saying nothing is hard enough in normal circumstances. It’s doubly hard when sitting alongside the key players in a mediation, watching them inch towards a better understanding of what they need to do to achieve the deal they know they need to get to.

I found myself ostentatiously picking up my water glass and sipping from what little remained of the contents. I looked out of the window. Made eye contact with my assistant, who was watching her first full commercial mediation. Feigned writing some notes. It was so obvious, to me, what they needed to say. But they needed to find the words, not me.

And they did. From a position of complete impasse, they gradually demolished the assumptions which each had made and which had informed their legal advice, spawned two litigations and produced hundreds of pages of forensic accountancy analysis.

Neither had “duped” the other, as one party had earlier suggested. The provisions in the company accounts were nominal and payments recorded there had not in fact been made, contrary to the belief of the other party. They and their respective companies had not each benefited unfairly from the efforts of the other. They agreed that each faced financial ruin if the cases proceeded to the several weeks of trial to which they were heading. The scales fell away as they learned from each other what had actually happened with the contracts. Why hadn’t they talked? Too busy, more urgent things to do. Trust had broken down. They quickly defaulted to seeking legal advice. That advice had included not to talk to the other lest they compromised their positions.

Inexorably, they moved to a solution. But now they were far away from their starting points. They had to bring their colleagues along. And what about the lawyers? I spoke for the first time in a considerable while. Can you recommend to your colleagues what you have tentatively agreed between you? If so, go and speak to your colleagues. I’ll ask the lawyers to join me in the main plenary room while you do that.

An hour later, after further meetings with me privately and then jointly, the clients walked into the plenary room and informed their lawyers (and the forensic accountants) that the deal was done. Relief all round. I knew that the lawyers would be fine with this. I’d got the nod a while ago. The dispute was too difficult to be resolved simply by representatives. They needed their clients to engage.

The return of this kind of autonomy to the clients as decision makers is, I believe, one of the most important contributions that mediation can make. Perhaps too often, clients have tended to defer to legal advisers, and the lawyers, understandably (but perhaps in a rather paternalistic way) have assumed responsibility. But lawyers can confidently let go in situations like this. They, and the mediators, need to liberate the clients.

 

Mediating for the Long Game

In recent weeks, I have had the privilege of mediating and facilitating in different matters with representatives of four governments . On one occasion they were on the same “side”; on another, notionally on different sides. A common theme to emerge was the needs and behaviours of political masters who were not present.

The representatives themselves were very aware of the need to try and build good relationships with their opposite numbers. That required a degree of honesty about the political realities. I could sense that frankness was helpful as it built confidence. It also allowed reflection on what could and couldn’t be done. Critically, the conversations were possible because of the framework of confidentiality which prevailed. And we ate together, which always helps to break the ice.

A good deal of time was spent thinking about “victory speeches”. What were the needs of those outside the room? How could they be addressed? What could be said that would help get any agreements over the line? Paradoxically, of course, the representatives needed to work together to achieve outcomes that would be deliverable. In a sense, they had more in common in this task than they had with their constituents outside the room.

Such cooperation on matters of process builds the kind of goodwill that feeds into substance. Trust is built and understanding enhanced. Us and them becomes “us” for the purpose of the negotiation. There is nothing unusual in this. Sophisticated negotiation often requires this kind of collaboration. That’s where the input of the mediator can be vital to create and sustain the safe space for this to occur, especially when the going gets tough.

The prize is worth the effort, as it was in the matters of which I was part, as those involved made real breakthroughs in the course of a day, avoiding or ending months or even years of deadlock. Often, of course, there would be more work to be done over the months ahead. An important component therefore is agreeing some sort of protocol for future engagement, both in terms of communication and substantive topics.

Equally, it can be important to commit to meeting again, out of the ordinary run of the mill, in order to reflect on progress, address any regression and be accountable both for what has worked well and for that which can be improved. This can be the difficult part as there is a tendency to think it will now all work out fine and that one such engagement should be sufficient. Mediators and facilitators, therefore, have also to be able to encourage a long game, just as much as taking pleasure from the quick fix and instant gratification of “settlement” on the day.