EACH MONTH WE PUBLISH A THOUGHT LEADERSHIP PIECE TO SPARK DEBATE AND CONVERSATION. WE HOPE YOU ENJOY THIS SERIES SHOWCASING DIFFERENT APPROACHES AND OPINIONS THROUGHOUT THE FIELD OF MEDIATION.

 

The Rough and the Smooth – The Ups and Downs of a Mediator’s Job

 

“We mediators are overwhelmingly positive about our job – most of us relish the prospect of our next interesting appointment.” says mediator Sue O’Brien. But she admits there are not only the dream mediations where everyone works together.

Surprises that cause the mediation to lose momentum and leave the mediator to deal with the fallout are among a mediator’s pet hates, she says. Can you relate to any of these experiences?

 

 

We mediators are overwhelmingly positive about our job – most of us relish the prospect of our next interesting appointment – but chat to any colleague, and one or two niggles will soon bubble to the surface. Equally, we all have tales of dream mediations where all the participants were well prepared, worked hard at the problem and worked collaboratively with their mediator. In this brief piece, I look at some examples of both the rough and the smooth – and I’ll look forward to comment from other practitioners.

We are of course only human and whilst we determinedly remain impartial and treat all participants even-handedly, our cool and calm exterior sometimes belies the irritation we are feeling when faced with certain behaviours.

Ask any group of mediators to name their pet hates, and the following will come up time and time again.

1. Springing surprises

Examples might be

•  Different attendees turning up from those notified before the day.

•  New issues being introduced without prior warning.

•  A decision maker suddenly not being available. How a mediator’s heart sinks when, despite prior assurances, at 4pm she or he is told the “decision maker” only has limited authority and the true decision maker is in fact on a wood-carving retreat in Borneo.

Surprises can destabilise the process and cause the mediation to lose momentum whilst the mediator deals with the fallout.

2. Lawyers devoting energy to telling the other team that their case is doomed to fail

This never works! But it does entrench positions.

3. Advisers who don’t give their client time to consider and respond to an offer before jumping in to insist that the other side haven’t really moved (whilst of course their own client is being far too generous).

This behaviour can so easily stifle the client’s creativity and autonomy and undermine their confidence. The mediator will often want to use an unacceptable offer to help people develop their thinking. A domineering adviser can seriously hinder that process.

4. People who won’t make any form of offer which represents less than total capitulation by the other side, because that would amount to “bidding against themselves”.

Unless parties engage in negotiation, the mediator does not have anything to work with, nor are the parties likely to find out what might solutions be available. Parties who make offers, which are non-binding at this stage, can to some extent define the parameters of the negotiation.

5. Failing to think ahead

So often in discussions it becomes apparent to the mediator that the team has not worked through any “what if?” or “what else?” scenarios. This sort of lack of preparation can meaner much slower progress and a longer mediation.

We feel irritated – sometimes intensely so – not only because our own job is made harder but more so because of the impact these scenarios can have on the parties. We all know that those representatives and advisers who collaborate with their mediator to create a positive atmosphere for negotiation, and who enable their clients to make the decision which is right for them, tend to secure speedier and arguably better outcomes for their clients than those who opt for disruption.

There are undoubtedly many other “pet hates”. If you are a mediator, do let me know what yours are. And if you are an adviser, what mediator behaviours get your thumbs down?

Happiness is…..

The behaviours I listed above can both alienate the mediator and be unhelpful to the parties. They tend to stifle momentum and jeopardise progress.

But there is another, more positive side to the coin and thankfully we often see advisers doing it well. My top three tips as to how advisers can best support the process are:

1. Be Curious

Good advisers avoid hectoring their opponents and instead show curiosity about the other side’s case. They will ask questions rather than make categoric pronouncements. They will explain what they need to hear from their opponents in order to develop their thinking. They know that this does not mean that they accept the other side’s case but rather that it is worth understanding why that case differs from theirs. This approach is far more efficient at drawing out weaknesses in the other side’s case than berating the opposition.

It can also help with privately recognising weaknesses in their own client’s position – which leads me to my second point.

2. Realistic preparation

We frequently see advisers running into problems in trying to manage their clients’ sky-high confidence and expectations on the day. Preparing the client for a realistic range of possible outcomes before the mediation can avoid simmering conflict between the adviser and client on the day, and allow more latitude in the negotiations.

So mediators recommend that preparation involves the parties and their advisers admitting the difficulties in their own case and making a plan as to how to deal with those difficulties, rather than waiting until they are pushed into a corner.

3. Involve the mediator 

High on any mediator’s wish list is being invited to sit in on private deliberations. It is tremendously helpful because it gives the mediator a high level of understanding about what is and what is not going to be possible. This private information is not shared with the other side but it can nonetheless help the mediator have productive discussions in that other room, i.e. discussions which might lead to a proposal which chimes with both parties’ thinking.

Again, I’ll be really interested to hear your feedback.

 

A version of this article also appears on The Property Mediators website.

ABOUT THE AUTHOR

Sue is a commercial mediator with a focus on on property, professional liability, commercial and probate disputes. She spent her early career in the City and in Paris and subsequently became Head of Dispute Resolution at a major regional firm. Sue was accredited as a mediator by ADR in 2008 and has been mediating full time since 2016.

Sue combines a keen analytical intellect and sound legal knowledge with approachability and informality. She brings optimism and energy to her mediations and is often commended for her commonsense approach to problems.

Sue O’Brien