Mediation

I thought it might be worth giving you my own personal take on mediation as I have been involved in two mediations in the last couple of months. One was paid for by the parties and the other was through the Tribunal service.

I found that the mediator was assisted by a comprehensive position statement in the private mediation. When you have a number of issues in play it is essential that you have a position on each at the start. This does not mean that you will not change your position but it does mean that you have actually gone through the issue with the client and established their starting position. I found the lack of a position statement in the judicial mediation meant that much time was spent at the outset finding out the parties respective positions.

One of the real advantages in the mediation setting is the ability to tell it how it is without the niceties and the restrictions associated with ‘open’ discussions. You can also share things with the mediator which you do not want shared with the other party. This can work to your advantage when the mediator knows your limits and can help move the other party within those limits.

The major disadvantage is the mid-afternoon moment. In both recent mediations there came a point in the mid-afternoon that the parties started to move their respective positions. Some observers of mediation call this the ‘mediation moment’. My own view is that this is what happens when people are being pressurised to make concessions over a lengthy period of time. They start to move not because they really want to but because the situation has continued for a period of time and they feel they need to do something. This is the most dangerous time for your client and it is essential that they understand that their movement may not be based on sound thinking.

Two tactics I have learned in the last two mediations is the reasonable last minute offer and the telling the mediator your top limit to settle but not actually making that offer to the other party.

The last minute offer if pitched at the right level is an effective way of causing the resolve of the other party to collapse. Faced with lengthy and expensive litigation and being tired at the end of the day puts very real pressure on the party to accept the offer. Beware the late offer!

Telling the mediator your bottom line without reaching it can be a two edged sword as it means that the mediator will put you under pressure to settle on that figure however conversely consciously or sub-consciously the mediator will try and move the other party towards your bottom line. So if you keep your nerve then the tactic is successful. It certainly worked for me.

My last observation is that judicial mediation is in its infancy and certainly requires some work but I have high hopes that this can be rolled out to cover any multi-day case within its jurisdiction as it is certainly cheaper than a full blown tribunal hearing.