Human beings are incredibly complex. Now there is an understatement if ever I heard one! We have evolved considerably from our “cave man” past but the traits needed for survival are still ingrained in our DNA, whether we like it not. Depressing as it is, we also have tribal instincts embedded in our psyche. Just look at the various religions, football teams, associations, companies, clubs, etc etc. I try to be a good Catholic – but fail regularly! However, I like being part of the Catholic community. It makes me feel safe and gives me an identity . We all want to belong.
We all like to think that we are incredibly civilised, good and reasonable. I am no different but I know that if anybody ever harmed my wife or daughters the veils of respectability, normality and conformity would slip, leaving behind a raw and damaged being intent on retribution, revenge and destruction. It makes me feel uncomfortable thinking about such things but we all need to know who we are and what makes us tick. It can also be extremely helpful in allowing us to get to know and understand our opponent.
Now you might be wondering “What has all this got to do with the usual subjects of adjudication, arbitration and mediation that this column is dedicated to?” Well, if you allow me to change direction, I will now explain.
I remember being involved in a very difficult mediation. The parties’ identities and the details of their particular dispute will remain secret for all time but what I can tell you is that the dispute was over a fairly modest claim of around £250,000. The parties had embarked on a long and very expensive arbitration. In fact the parties managed to spend around £5 million in legal costs between them before the award was due to be published and it was decided to try to mediate. Common sense had evaporated and the dispute had turned into a fight to the death.
The mediation was scheduled for two days. Both teams were well prepared. The tension in the rooms was incredible. I have never seen so many experts and lever arch files of evidence assembled for a mediation. Day One was spent fact-finding and understanding the parties’ positions. At the end of a very long and tiring Day One, I was sure that the mediation was doomed to failure. I was looking at a large cross on my mediation log! I remember sleeping very badly that first night. How had things got to such a low point? How would I move the parties from their embedded positions? Did anybody have the telephone number for Paul Daniels the magician?
Sometime during that first night I realised that any further discussions on the merits of the parties’ cases in the dispute would not be helpful. How could I get the parties to engage? A change of direction was clearly needed!
Day Two started with a joint session attended by both parties’ lead negotiators and myself. I put a number of questions to the lead negotiators which I asked them to take back to their private rooms for a private discussion later in the day.
Did both parties recognise that there could be no winner in the arbitration? Why had the parties taken the decision to arbitrate? What would their clients think of them if their conduct ever became public knowledge? Did they know how they had got into such a mess? What was driving them to continue with the arbitration? Why had they agreed to mediate? What did a ‘win’ in the arbitration look like? What did a ‘lose’ in the arbitration look like? Did they really want to settle? Had anybody any ideas to move the mediation forward?
What followed was a series of private sessions with the parties. We went through the questions I had put to them. Those discussions have to remain private but it is fair to say that the tone of the discussions changed to an analysis of the personalities of the main proponents. It was painful but it was finally admitted, somewhat reluctantly, that a serious clash in competing personalities at site level was the root cause of a dispute that now had the capacity to destroy one or both parties.
The dispute did finally settle at the end of Day Two of the mediation. I am still not quite sure how it happened but at some time during Day Two a certain amount of introspection took place in both rooms. Once both parties realised that human traits had driven them to a place that threatened their very prospects for survival, a way out had to be discovered. Gambling on the Arbitrator’s award was not an option for either party.
Now I can hear you say that you would never allow this to happen to you - and just maybe you would avoid such a disaster. All I can offer by way of advice is to analyse yourself and the personalities in your team. It is a truly frightening thing to analyse your own personality traits and, whilst I don’t suggest you apologise for your caveman past, if you are to avoid a replication of this sobering story, perhaps it is worth the discomfort after all.
Peter Vinden is a practising adjudicator, arbitrator, expert and mediator. He is Managing Director of Vinden and can be contacted by email at firstname.lastname@example.org.