We attended a talk chaired by the Hon Mrs Justice Carr DBE on 20 October 2015 on the well trodden subject of “Getting the Most From Your Mediator.”
A good mediation joke was told – parties are mediating and the mediator says “what about an apology?” to which they respond “yes, we are really sorry we are mediating”!
Another: – husband and wife are mediating and husband says “I’ll give her the house, the car, my pension, everything!” so the mediator goes to see the wife and asks “what do you want out of the process?” Answer- “I want him to listen to me the way he listens to you!” Joking aside, mediation can result in surprising outcomes.
Other insights (some more obvious than others) that emerged:
-consider the documents and prepare. With litigation you work according to the Court framework whereas with mediation you need to know what happens if the mediation fails. You need to evaluate the true worth of the deal – deal or no deal.
-recognise who owns the dispute and work together to recognise not a passive observer.
-do you need a preliminary telephone call?
-no cynicism.
-consider preliminary plenary session. Less can be more in terms of the opening statement. Don’t miss the opportunity by repeating the position statement.
-think about what hope to achieve in each session, as each session is a vehicle taking you on a journey.
-ring of confidentiality.
-open adult respectful conversation.
-manage expectations and the process.
-rapport, trust, credibility.
-explain the process and use it well and it will produce something that works.
-help start a discussion, structuring the debate.
-mediation is like a slow puncture- let some air out at the start and then find something to repair it.
-better than a day in Court as actually get to have a say whereas in Court a lot is based on witness statements.
-catharsis so can move on as litigation can fracture relationships and have an impairing psychological impact. How can you build a relationship from a system that creates winners and losers?
-can time limited mediations be unsatisfactory ? (I do not believe so!) costs and expense is an issue surely? Yes a two day mediation can be satisfying, but for whom? Can it be helpful not to push for a settlement and take one’s time?
-in most jurisdictions they do not understand the need for a closed session and shuttle diplomacy which does not occur on the continent or the US and the purpose is to bring the parties together. This is the model used in family mediation where the parties are often not represented. Not everyone thinks this way.
What do clients actually prefer? We suspect that the more direct approach may be too daunting for parties and the separate sessions that we have got used to after a joint session is the best way to proceed in our culture?
