It’s 8:30am and I’m arriving to assist at my first mediation since completing the qualification. I’ve read the papers – more than 250 pages of summary and accompanying detail- and am trying hard to empty my head of all the preconceptions they have created and to focus on the essentials: being calm, remembering the names of the key participants and my desire to practice short and open questions if appropriate.
The day doesn’t start quite as I expect, and I wonder if they ever do… all the participants are early, we can’t access all the booked rooms and the venue are determined to know exactly when to serve lunch (it says 12:31 on their sheet which seems pretty specific to me). It’s fine, I smile, introduce myself, keep parties separate until I find someone with a key; I confirm we’ll have food arrive earlier rather than later – it’s hard to know how the day will progress and low blood sugar will not drive progress.
And at first, the day seems slow. The principal mediator and some of the parties have made a site visit the night before so this moves discussion into highly detailed considerations and as we work through the morning, I wonder quite where these are taking us and how we get above them to some of the big picture issues. The mediator facilitates a joint meeting, preceded by a short “hello” for the two individuals whose interests are in conflict. Once again, I am struck by the impact of this humanity: it is clear from what each says that they have liking and respect for one another and that they genuinely want to find the best possible resolution to help each move on. Going to court will be expensive; it could also take a very long time and be extremely complicated: it’s very apparent that this is in no-one’s interests. The power dynamic is not quite as I had anticipated: ultimately it will be for the claimant to decide whether any offer will be enough to dissuade him from proceeding to court; to achieve this he needs to persuade the other side’s solicitor, acting for an insurer as often the case, of the validity of his claim. Each side really needs the other to help them if they are to find a way through this.
And mid-afternoon when tempers are getting testy, I’m not hopeful of reaching agreement, though when I ask his views, the mediator enigmatically refuses to be drawn – “I don’t know.. , I won’t speculate, I need to remain open to all possibilities..” – it’s a useful reminder. Hs is getting keen to move things on though; the claimant and his team have crunched facts again and have done enough to demonstrate the basis of the claim and it’s not clear that revising any more of the detail is going to help anyone; the negotiation could start soon in earnest but only if both parties can establish that they are operating in the same ball park and there is some skilful work for the mediator to do to check this and to manage expectations on both sides.
It’s 6pm and suddenly we’re at a new pace. Could a deal be done? Maybe it could. The solicitors have key roles here, especially in ensuring that the clients are informed in their choices. The mediator also has a frank 1:1 chat with the claimant: the best possible deal is still some way from what he hopes to leave with… but does he really have a choice? An analysis of the prospects of further legal action are not very positive: 15% chance of a similar sum perhaps 18 months down the road, almost no chance of anything more; 85% chance that the outcome would be worse. He gulps and decides to accept the bird near the hand, acknowledges that the end to the uncertainty will be a relief, wishes that the mediation could have happened sooner.
And by 8.10pm, authorising phone calls have been made, documents are signed and we are done, solicitors having agreed steps to tidy up the ends. Neither side is” happy”; each accepts that this is the best outcome that can be agreed. I am struck by comments each highly-experienced solicitor has made spontaneously during the day about the value of the mediation process. “It’s the most efficient means of investigating the issues” one says in the joint meeting. “We can look at the papers together, ask questions and reach a shared understanding of the problem and how this might be fixed. You can’t do that in a court; and it will take much longer than the 2-3 hours of our discussion”. “Mediation is ideal in action of this sort,” the other comments later in the day, “the client can contribute to the discussion; he/she also gains an appreciation of the constraints on the other side and what this means for a potential outcome”.
Travelling home, I’m surprised how tired I am, notwithstanding some lengthy breaks in the day. It’s been intense, exciting, frustrating, worthwhile. And I’m hoping that all the participants will still think agree with this last point tomorrow, the beginning of their new chapter.