Overcoming blockages to settlement in mediation.

Recent statistics indicate 67% of mediations settle on the day and a further 19% soon after.  However, representatives and parties often experience difficulties in achieving settlement at some point during their mediation.

The mediator’s key role is to help the parties achieve settlement in their dispute. That often involves dealing effectively with various blockages that can arise during the process. The point at which such difficulties occur can vary. A party may enter the process with a fixed mind, though more often difficulties may arise later when offers are being exchanged, and frequently when parties are close to an agreement but cannot take the final step.

When a blockage occurs one of the key issues for the mediator is to understand what truly lies behind the ‘no’. This primarily entails the mediator talking to the party and finding out what the issue is. Sometimes a party may find it difficult to understand themselves, and just know that they don’t want to budge, as it does not ‘feel’ right or fair.

The mediator will understand and help the party process their thoughts and talk through how their concerns could be overcome. That may involve identifying key issues that still need to be addressed to reach a resolution; running through alternatives if an agreement cannot be reached; helping the exchange of information between the parties if that may assist, or helping the parties communicate in a safe and effective manner. Sometimes simply listening to a party process their thoughts and reach their own conclusion is enough.

The role of a representative in these conversations can also be important in that they may need to give their client the time and space to think. Often these blockages do not involve the legal issues that may have been the main topic of conversation between the representative and their client up until that point in the case.

It is also fair to say that blockages are rarely a ‘one room’ thing. Often the mediator may be having separate private discussions with both parties, and in those cases, the reason for the blockage may be completely different in each room.

The experience and skill of the mediator in helping the parties address and overcome blockages is critical to improving the prospects of the parties reaching a settlement.

How (not) to be an effective representative in mediation.

Many dispute resolution lawyers have considerable experience of attending mediations and will have considerably more experience than their client, for whom mediation may be a one-time event.

The most important people at mediation are the parties themselves. Mediation provides an opportunity for the parties to reach their own agreement, assisted by their representatives and by the mediator. Most parties who attend mediation want to resolve their dispute if they can.

Representatives, therefore, need to consider how they can best assist their client to maximise their chances of achieving their aim of resolving their dispute, as sometimes (and I stress sometimes!) a representative can inadvertently potentially lower the chance of a settlement being reached.

Here are a few examples:

• At an opening session, a representative makes a strident presentation about the overwhelming strength of their own client’s case and the pitiful prospects of success of the other party. They may choose to add in a few gratuitous insults for good measure. This approach may fleetingly make their client feel happy, but they then generally feel less happy when the other side’s representative is equally strident in their response. The parties then go back to private session frustrated and sometimes angered by the other side’s approach, which does not help develop an atmosphere for compromise. A more measured presentation at the opening session can be much more persuasive in moving minds.
• The representative arrives with a number of previous legal authorities and sees the mediation as being a mini-trial to debate the detail of the case. While legal topics are often addressed, they should form only part of the bigger picture of a mediation.
• The representative sees it as their job to act as a ‘human shield’ in private session and to try to dominate the conversation with the mediator instead of giving their client a chance to speak. While the representative is an important part of the conversation the key people at the mediation are the parties themselves.
• In private session, the representative will tell the mediator that their client’s prospects of success are a remarkably high figure (the highest I have heard is 150%). Now, I do not rule out the possibility that the representative tells their client that they really meant 50:50 as soon as I have left the room, but overstated prospects of success in private session can confuse the client. The mediator will not tell the other room what you consider your prospects of success to be unless that has been expressly authorised.

More often than not, of course, representatives provide an effective service to their client in guiding them through the process and advising and assisting them on the day. Sometimes however they need to guard against actions that may not actually help their client win the prize of settlement.

Nick Parker, Civil and Commercial Mediator, Hexagon Mediation.