I am currently involved in a large mediation which I am struggling to settle. It isn't a complete train wreck. A gap of over £10 million has been reduced to less than £500K and the Parties are still talking to each other and otherwise exploring options to avoid spending the equivalent of the GDP of a small African country to litigate the dispute; so we will see.
In my private sessions with the Parties, both sets of lawyers over two long days said that they had started to lose confidence in the mediation process. I have heard this from other lawyers recently and it concerns me that Parties may be losing faith in a system of dispute resolution that I fervently believe in.
So why are Parties losing faith in mediation? Could it because they enter the process with expectations that are simply unrealistic? Do Parties refuse to look objectively at their own case when negotiating? Do instructed experts lose sight of their roles and sometimes end up polluting the settlement well? Are the lawyers themselves to blame for encouraging their clients to set unrealistic objectives. Are there hidden agendas that the mediator cannot identify? Yes, you've guessed it, I have encountered all these problems over the last 20 years (with many more besides) and sometimes with all of them arising in the same mediation! Happy days!
But what about the mediator's role? Do Parties select a Mediator who is merely going to facilitate the dispute, or do they select a mediator who has specialist knowledge of the industry and who might be willing to evaluate a Party's position in a private session, if only to break a deadlock? Is this approach a legitimate technique for a mediator? What if one Party desires this approach but one or more of the others doesn't want to know?
There is no doubt that if a Mediator begins to evaluate the dispute there is a possibility that he or she could risk losing the trust of one or more of the Parties. Care must therefore be taken in how you approach the evaluation of a Party's position, if indeed you should adopt this approach at all.
OK hands up! I admit that I am often inclined to tell a party that I think a position is going to be "difficult" (diplomatic speak for hopeless) to sustain, if I am convinced that they really need to hear what can be a difficult message to deliver. I justify this approach on the basis that a party is better to hear bad news within the confines and relative safety of a mediation as opposed to finding out after it is too late in an arbitration, adjudication or court case. Care needs to be taken in delivering such a message but I would argue that it cannot be right for a mediator to say nothing when he or she hears something that is plainly incorrect, particularly if a failure of the mediation is then likely to be the end result. It is not about the Mediator having an easy life, it is about trying to get the job done.
But I can only adopt this approach if the dispute falls within my specialist knowledge. So, in construction, civil engineering and professional negligence claims involving construction professionals, I consider it is legitimate to express a view in private if I hear a position being advanced which I know I would not entertain as adjudicator or arbitrator.
Clearly, in cases where I don't have specialist knowledge, for instance personal injury or medical negligence, it would be inappropriate for a construction professional to express a view on a party's case and so I stick to my knitting in such cases and adopt a facilitative approach. But this doesn't mean that I can't reality test a Party's position by asking probing questions and looking for the all-important breakthrough and concessions.
So how do Parties improve their chances of success in mediation? Clearly, approaching the mediation with an open mind, being willing to listen, negotiate and compromise are all important factors. BUT, above all else, make sure you pick a mediator who will be willing to go the extra mile to get the job done. Finally, ask yourself if you or your Client ought to select a mediator who will be willing and able to evaluate a position if he or she identifies that this approach is or may be needed in order to reach a settlement. Perhaps it is time for a different approach and Mediators who are willing to evaluate will stimulate renewed interest in the mediation game. Evaluative Mediators – enter stage left.
Peter Vinden is a practising Arbitrator, Adjudicator, Mediator and Expert. He is Managing Director of The Vinden Partnership and can be contacted by email at firstname.lastname@example.org. For similar articles please visit www.vinden.co.uk.