Challenging Assumptions in Mediation

I share examples from two very different mediations, each challenging some assumptions about what can be achieved – and how.

Number one: a dispute about interpretation and application of a limitation clause in a commercial contract. No factual dispute at all. In a large construction claim arising out of building a public facility in an overseas jurisdiction, the parties had agreed that the claim was so high (multi-tens of millions) that whatever the decision on the matter of interpretation, it was unnecessary to explore the figures. Similarly, primary liability was not in issue. Subject to a couple of further interpretation variables, if the clause provided for A, then x was due; if B, then y would be payable.

Classically, this fell into that small category of cases for which mediation has often been deemed inappropriate – or unnecessary. It was a simple point of law for a judge or arbitrator to decide. But here we were at 11.15am, after the lawyers had met with me to prepare an agenda of the issues requiring to be addressed, each party (lawyer and client) laying out its arguments in front of the other’s legal advisers and client. They were analysing legal propositions and the risk attaching, with me posing some questions about the meaning being ascribed to certain words in a contractual cap and inquiring about the advice tendered by leading counsel.

It still took several hours to explore the risks and opportunity costs, test the realism of some key arguments, and deploy “Mr Justice Not Very Bright “ in each room. For one reason or another, this notional judge tends to ask awkward questions, as if he does not understand the points being made. He proves to be a useful tool on occasion, sometimes dropping hints about how he might view things in a court. He performs the same role privately for all parties, but in different ways of course. And he always qualifies his comments with the observation that he does not have complete knowledge and that parties and their lawyers are completely free to disregard his remarks.

Incidentally, while my penchant for inviting the clients and counsel to join me for a quick pastry or “breakfast” at an early stage does not always meet with ready approval, here it worked a treat. In this session, the principals soon discovered a common bond from the past in their industry, and this gave them much to discuss throughout the day, as well as generating the goodwill to enable them to meet and complete the deal when the lawyers needed that extra commercial input later in the day. It was in their corporate interests to reach an agreement and they did, on the back of the risk analyses which the day had encouraged and empowered them to conduct.

Number two: an oil and gas employment dispute involving a very senior strategic adviser and his erstwhile employer. It seemed to be a classic for a bit of relationship-building, as hurt and humiliation were high on the list of the consequences of an unforeseen redundancy. It also seemed to be as much about ego as about money.

The two protagonists could still speak fairly amicably to each other in a kind of mentor/mentee relationship. Inviting them to meet together early in the day would have been an obvious strategy for this mediator, with an opportunity for each to set out how they saw things, get things off the chest, give explanations for what had happened, enhance understanding, acknowledge the other, and so on.

However, contrary to many of these types of cases, there was no meeting at all between the parties until they came together to sign the settlement agreement at 5.30pm. All negotiations were conducted through or with the two very able lawyers. And when the parties did meet, the clients were soon chatting away, almost as if they might start their working relationship again. They won’t but the geniality confounded many assumptions I might have made. Keeping them separate until an acceptable arrangement had been achieved had worked well.

One small, notable, deviation from the norm may have been the key in this one. I had arranged to meet each party and his lawyer at my hotel the evening before, just to “get to know” them. At the crossover point between meetings, they bumped into each other for the first time in months. They had a pleasant exchange of words. Maybe, in that informal environment and at that moment, that meeting was all that was needed to take the edge off the anxieties about what was to come next day and temper the stored up hostility of the past.

We’ll never know, but what we do know as mediators is that we are always learning and that there is no fixed way to do this.