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Antony Sendall’s Top Tips For Mediation Advocates
By Antony Sendall
It is always possible for a mediator to spot the lawyers who understand the mediation process and those that do not. If you are beginning to act regularly as a mediation advocate, it is worthwhile considering the undertaking of some mediation training, either targeted at mediators or tailored especially for mediation advocates. Lawyers who do not have a good understanding of the dynamics and inner-workings of the mediation process can be a very significant obstacle to the successful outcome of a mediation. I have gathered below a few brief observations from my experiences as both a mediation advocate and as a mediator.
- Choose a good mediator. To do this you will need to understand what it is that mediators really do and a bit about how they do it. This topic is a whole article (or possibly a book) in itself. I have not written the book yet, but I have already written the article and if you feel so inclined, you can read it here. In particular, consider whether your mediator really needs to have subject-matter expertise. Perhaps the most common misunderstanding of the mediation process is that the mediator usually needs to have subject-matter expertise.
- As with any advocacy skill, preparation is everything. It is not just about knowing your client’s case inside out. There are a whole host of other key matters you should address with your client before you go to the mediation:
- You need to know and understand the strengths and the weaknesses of the legal case. You need to have a good understanding of the litigation risk if the case does not settle.
- You also need to understand what makes your client tick and their attitude towards the idea of settlement. In particular:
- What are the pressure points for your client?
- What are the circumstances that may make settlement critical or more desirable
- How badly does the client want to resolve the issues?
- What does a good settlement look like to the client?
- Are there any ‘over my dead body’ issues that may need to be examined and unpacked?
- Are there any terms that are ‘must haves’ in any final agreement?
- Does the client understand who will be present at the mediation and how the process will work?
- What are the costs to date and what are the projected future costs? Almost every mediator will ask you about this issue so that a good assessment of the litigation risk can be made.
- Spend some time talking to the mediator before the mediation day to find out more about the mediator’s approach and the style he or she likes to adopt.
- Consider having a pre-mediation meeting with the mediator before the day of the mediation. Although this may entail extra cost, it can be a very worthwhile thing to do. Most mediators are only too pleased to have such a meeting.
- Bring any documents you think you may need to the mediation. Bring copies of anything you might want to distribute.
- Arrive early enough at the mediation to allow the client to acclimatise themselves before the mediation starts.
- Make sure that there are arrangements in place for refreshments, including contingency plans if the mediation goes into ‘overtime’
- Be aware of any time constraints that may apply to anyone present.
- Written Position Statements and/or oral Opening Statements are an important part of setting the tone for the mediation. Do NOT under any circumstances use these as just another litigation tool to explain why you are going to win and the other side are going to lose. It is likely to be very counter-productive. Try to make these statements focus on the future and resolution rather than upon the past or the merits of the underlying claims. The parties should already be aware of the strengths and the weaknesses of their case and the mediator should have a good idea from his/her pre-reading.
- When considering what documents the mediator will need to pre-read, do not fail to see the wood for the trees and do not overburden the mediator with background documents. Even in the most complex of matters, the mediator will not need to be provided with what is effectively a trial bundle. The mediator is not trying the case. By all means bring documents to the mediation in case you need to refer to them, but consider very hard whether or not the mediator really needs to study them before the mediation.
- Try to leave your litigator toolkit at the door as you enter the mediation suite. Mediation is not litigation. Your instincts to be the mouthpiece for your client and to protect them from any situation where they might say or do something that may impact negative on their case, need to be kept very firmly in check.
- Become an active listener and understand what that really means. Learn to really ‘hear’ what the other side are saying. Listening is not agreeing. Try very hard not to interrupt other parties when they are speaking. You will always get your chance to respond. Silence really is golden. Especially during the opening session, if you do not have something constructive to say, shut up and listen.
- Do not be afraid to sit around the same table as the other parties. As stated above, mediation is not litigation, but nor is it just negotiation. It rarely works well if it is reduced to shuttle diplomacy with the mediator walking up and down a corridor carrying messages between the parties. Shuttle diplomacy is not mediation. Have the courage to look your opponents in the eye and discuss frankly your respective proposal for resolution, but more importantly, have the courage to let your clients sit there and do the same.
- Do not be afraid to let your clients talk, whether to the mediator or to each other. Try to think of your role as being much more of a ‘back seat’ role. At a mediation the clients are the really important people. You are there primarily to provide guidance and legal advice not to act as a barrier between the parties. If two large and experienced commercial concerns represented by effective and experienced commercial lawyers have not managed to resolve the problem without the need for mediation, the chances are that the blockage to resolution has something to do with the individual characters on each side. Give the mediator the freedom to explore that. Good mediators have those skills. It’s not about ‘banging heads together’ – it’s a much more sophisticated process than that.
- Always be prepared to let the parties meet with the mediator without their lawyers present. This is often an issue which makes litigators anxious and feel vulnerable, but the mediator is there to see fair play and it can be a really useful way of unblocking even the most difficult impasse. If you have chosen a good mediator, you and your clients should have nothing to fear from such a step.
- Find an opportunity either before the mediation or at an early stage during the mediation to discuss with the other side’s lawyers what the broad shape of a possible agreement might look like. If there are some ‘must have’ terms or even if there are a collection of boilerplate clauses that you would like to include, it is best to get those fleshed out early. If not you may find that you are trying to haggle over these clauses when everyone (including you) is already tired, agreement in principle has been reached and all that the clients want to do is to sign and to leave. It is important to get these clauses right, so discuss them early and not at 2am.
- Never underestimate the enormous power of an apology or an expression of regret. It is very common for the mediator to be told by the parties separately how much they regret allowing the situation to reach the point that it has. Do not be afraid to state this openly and clearly to the other side as early as possible. It can have a very powerful effect on the whole tone of the mediation from that point, especially if that feeling is mutual and is expressed by all parties.
- Encourage lateral thinking and creative solutions. Mediation is an incredibly powerful process and the range of outcomes is only really limited by the imaginations of the participants. Be conscious that there may be solutions that are completely outside the scope of what a court or tribunal might award. There may be common interests that can be exploited to forge a new relationship between the parties that can help to resolve the differences of the past. Even in commercial money claims the range of solutions are far more extensive than finding different ways to ‘carve up the pie’. Be flexible, new outcomes that no one has ever considered may emerge in the course of discussions.
- If you have a proposal for settlement to make, make it early. Put it on the table at the very beginning, if you can. Even if the other side does not ‘snatch your wrists off’ to accept it, you can at least use it as the basis for future discussion.
- Try really hard to discourage the use of “bottom lines” or “over my dead body” issues or other strong positional expressions. They are usually fairly meaningless in a negotiation and in a mediation, they can become a source of embarrassment and difficulty, especially if positions need to shift during the course of the process in order to achieve settlement. They can also give a sense of apparent impasse to the other party who may be discouraged from finding other ways to resolve the dispute believing that the other side are intransigent.
- Throughout the whole process try to keep your client focussed on the future and on finding a way to resolve the current situation. It is very easy to become completely absorbed in issues as to who was to blame for getting the parties into the situation. This is rarely, if ever, a profitable line of inquiry in a mediation. It is better to agree to disagree about whose fault it was and to attempt to find a sensible way forward. Obviously, it may in some cases be essential for both parties to acknowledge at least a partial responsibility for what has gone on in order to be able to move forwards.