Of Team Selection And Other Trials

Mediators think they probably have the best job in the world and they do not often make a plea for sympathy. But here goes.

As parties using mediation grow in confidence they have increasingly firm ideas as to how to conduct the mediation day. They are likely to have firm plans, for example, as to who should speak in the plenary session, when the first offer should be made and when and if clients should speak direct. All good.

Interestingly they also have firm ideas as to how the other side should conduct themselves. More difficult. We frequently mediate between parties who approach the mediation day in radically different ways and a conflict develops over process as intense as the dispute itself. One side may want the first offer at 10:15 am. The other wants an exhaustive series of meetings between the experts before any negotiation can happen. Choice of representative is particularly tricky. It could be “Where is Mr. Jones. None of the people attending know anything about this dispute” or as easily “Why is Jones coming? He is far too close to this dispute. He will never let them settle.”

This sort of dispute can start bubbling away well in advance of the mediation and the parties try to get the mediator involved. It happened today. I was copied in on an exchange in which one party suggested that both sides’ experts should attend next week’s mediation. His opposite number went straight into Caps Lock: “Our Mr. Jones will NOT BE ATTENDING”.

Unsurprisingly attempts to pick the other side’s team can touch a nerve.

“Good morning Sir Alex.

Arsene, how nice to hear from you. How can I help?

Well, I just wanted to share a few ideas about your back four for Saturday’s game.

Yes absolutely. Always worth listening to. Fire away…”

These rows can be an unhelpful start to the mediator’s involvement in the dispute. It is hard to build rapport with a party when your first telephone call   apparently adopts criticism of their strategy.   One has to tread carefully to avoid seeming to have adopted the opponent’s position. Following a volcanic discussion with Party A you call Party B. “Am I right in getting a slight sense that the parties have different views about representation?”

We will try to resolve these issues. They can give the mediator lots of clues to the psychology of the dispute. And parties do sometimes agree to review and change their approach. But in the end both sides only have the sanction of withdrawal as their sure remedy. The other side’s approach is the other side’s approach and you either work with it or you don’t mediate at all.

So, we will do our best but in the end it is your call.

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