Where it is logistically possible (and that may only be in some cases), I have recently begun to suggest that I meet with parties and their lawyers on the evening before the full mediation day. I usually meet privately with each group for one hour to 90 minutes. People are slightly more relaxed and that can open up the mediation. I find I make a lot of progress during these times. That means that the following day gets off to a much faster start. And, overnight, people have things to consider just from the questions I ask and the fresh thinking which occurs. It also means that I can plan the choreography for the morning with greater clarity and assurance, getting to the heart of matters more quickly. This can bring the added benefit of a speedier day all round, with a significantly earlier finish than is often the case when starting cold on the mediation day.
This approach brought about a really useful moment in a recent mediation. I had held private meetings with the parties, a big corporate on one side, and life partners on the other who were in business together and involved in a long-lasting commercial relationship with the corporate. There were serious court proceedings ongoing, with a considerable amount of animosity and bitterness owing to events which had seemingly broken the relationship. In my meeting with them, I had pointed out to the partners that there were two participants on the corporate team who were new to the situation and that it might be useful for us to use the process to enable them to engage with these new players early the next day, so that they could convey their side of the story to people who might carry less baggage.
As I ate dinner in my hotel later in the evening, the “new guys” passed by and invited me to join them for a drink in the bar. (I had been unaware of the fact that they were staying there). I explained that my independence as mediator prohibited such socialising with one party only. However, I did know that the partners were staying in the hotel. So, later, I took a walk to the bar in the hope that something useful might happen. The partners were seated at a table just a few feet from where the two new guys were sitting. Neither pair was aware of the other. Each was enjoying a drink. I moved between them and invited them to meet, saying that I thought it would be a good idea if I introduced them to each other. A very human moment followed. The awkwardness of the situation dissipated as they exchanged pleasantries and smiles, as well as recognition of the difficulties they faced with their dispute. I didn’t allow them to get into detail but it was enough to reveal the underlying decency of those present – and for each to say that they genuinely wanted an end to it all.
Less than twelve hours later, I sat in our plenary room as the same four plus one or two others (and one lawyer each) had a frank and honest discussion about what had occurred two years ago. Much greater understanding was achieved including, as usual, an expression of regret that they had not been able to have this conversation back when it all started to go wrong. The conversation was smoother and more direct because of the chance meeting the evening before. Fascinating. What a process.
(Events and players changed in part to preserve anonymity and confidentiality)