The silence was palpable. Saying nothing is hard enough in normal circumstances. It’s doubly hard when sitting alongside the key players in a mediation, watching them inch towards a better understanding of what they need to do to achieve the deal they know they need to get to.
I found myself ostentatiously picking up my water glass and sipping from what little remained of the contents. I looked out of the window. Made eye contact with my assistant, who was watching her first full commercial mediation. Feigned writing some notes. It was so obvious, to me, what they needed to say. But they needed to find the words, not me.
And they did. From a position of complete impasse, they gradually demolished the assumptions which each had made and which had informed their legal advice, spawned two litigations and produced hundreds of pages of forensic accountancy analysis.
Neither had “duped” the other, as one party had earlier suggested. The provisions in the company accounts were nominal and payments recorded there had not in fact been made, contrary to the belief of the other party. They and their respective companies had not each benefited unfairly from the efforts of the other. They agreed that each faced financial ruin if the cases proceeded to the several weeks of trial to which they were heading. The scales fell away as they learned from each other what had actually happened with the contracts. Why hadn’t they talked? Too busy, more urgent things to do. Trust had broken down. They quickly defaulted to seeking legal advice. That advice had included not to talk to the other lest they compromised their positions.
Inexorably, they moved to a solution. But now they were far away from their starting points. They had to bring their colleagues along. And what about the lawyers? I spoke for the first time in a considerable while. Can you recommend to your colleagues what you have tentatively agreed between you? If so, go and speak to your colleagues. I’ll ask the lawyers to join me in the main plenary room while you do that.
An hour later, after further meetings with me privately and then jointly, the clients walked into the plenary room and informed their lawyers (and the forensic accountants) that the deal was done. Relief all round. I knew that the lawyers would be fine with this. I’d got the nod a while ago. The dispute was too difficult to be resolved simply by representatives. They needed their clients to engage.
The return of this kind of autonomy to the clients as decision makers is, I believe, one of the most important contributions that mediation can make. Perhaps too often, clients have tended to defer to legal advisers, and the lawyers, understandably (but perhaps in a rather paternalistic way) have assumed responsibility. But lawyers can confidently let go in situations like this. They, and the mediators, need to liberate the clients.