A day in the life

In an ideal world, what should the process of mediation look like? Helen Kilroy lets it be

In the March, July, and September Gazettes we had insightful and educational articles by Judge Michael Peart, Bill Holohan, and Liam Guidera on different aspects of mediation.

Taking them as read, and the excellent guidance they provide, I have been asked to consider what a mediation process looks like for the mediator on ‘a good day’?

For me, four ‘Cs’ immediately come to mind: collaborative, considered, concise, and creative. The good days generally involve several of them; the very good days involve all of them. 

With a little help from my friends

Collaboration – as a mediator, collaborative processes are the easiest to manage. Parties and advisors who choose to collaborate at mediation are often rewarded with a very productive outcome.

I say ‘choose’, because how everyone behaves at mediation is a choice. Collaboration starts when the parties’ advisors engage with the mediator in a ‘process call’ to agree preparations for the mediation.

Ideally, that call will address certain basic questions. What materials would it be useful to brief to the mediator? Would an exchange of information on a particular issue facilitate parties to better understand their risk on the issue? Should there be an exchange of expert reports or expert conferral in advance of the mediation? Who is attending the mediation, and how might the day be best run?

Having rows about preparations rarely improves the mood for the day of mediation and, if you have to ask the mediator to make directions on disputed preparation points, it can undermine the voluntary nature of the process.

Many preparation rows are about what the mediator should receive. In that context, remember that parties can say what they want to the mediator in private session. So why waste time rowing about the briefing?

It is more effective to be collaborative, acknowledge that the other side can share what they want with the mediator privately if it is not in the agreed core book, and avoid an unnecessary row before the mediation.

On the day of mediation, having a collaborative engagement with the mediator is generally much more productive than taking an aggressive or adversarial approach.

The mediator is there to help. While venting at the mediator might ease the mood in your room, remember that you need the mediator to advocate and persuade for your client with the other side.

The mediator is more likely to do that if you work with, rather than against, them. The more open you can be with the mediator in explaining your needs, and listening to and understanding what the mediator is saying to you about the other side’s needs, the better.

Having a professional and collaborative engagement with other advisors at the mediation helps you to keep the focus on finding a path to resolution.

How you engage with colleagues on the day of the mediation sets a tone. Working with them throughout the day in a collaborative rather than aggressive or adversarial way in response to their suggestions (whether shared through the mediator or in joint sessions) can often have a positive ripple effect when it comes to managing difficult aspects of the commercial negotiations or drafting points later in the day.

Remember: the dispute is your clients’, not yours, so don’t make it personal; your clients might get annoyed or upset on the day, but mirroring their emotions rarely helps the process!

Within you without you

Considered approach – parties and advisors who adopt a considered approach to mediation are a joy for mediators to work with. Their approach is underpinned by conducting a detailed analysis of the claim in advance of the mediation, and thoughtful engagement on the day of mediation.

What does this approach entail? Ideally, it involves looking critically at the strengths and weaknesses of the claim, both from the plaintiff’s and the defendant’s perspectives, and considering the most likely outcome at trial.

If you adopt this approach, you and your client will be able to explore the impact of the likely trial outcome on your client personally or on their business – and on the other side.

Having conducted such an analysis, you will be well positioned to consider what alternative outcome at mediation might be sufficient to meet your client’s needs and, at the same time, be acceptable to the other party.

Doing this work in advance of mediation will help in managing your client’s expectations about possible settlement terms. If a party has unrealistic expectations on the day of mediation, it will slow the process down at a minimum (while the mediator explores risk with them and seeks to establish what is a realistic outcome) or, worse, can result in the talks breaking down.

Time spent reflecting on the claim in advance of mediation can be invaluable in identifying points of sensitivity for your client or the other side – for example, a reputational or relationship issue between the parties.

Once identified, the issues can be shared with the mediator, with a view to the mediator being forewarned of the need to manage or navigate around the issue.

A considered approach also assists when points of tension arise on the day of mediation. If you and your client can reflect before reacting to a point of tension, that can be of great assistance in defusing the tension.

Fixing a hole

Be concise – most mediators will tell parties that less is more in all aspects of mediation. The mediator is not a decision-maker on the merits and will not decide who has ‘behaved badly’ (even if you ask them to!), so the mediator does not need to read or be told ‘everything’.

On a good day, the mediator will be able to explore with each team privately what the likely case outcome will be, and how that outcome will affect each party.

To do that, the mediator needs enough information to understand what the issues are, so as to be able to ask questions about the risk of adverse outcomes – and the shape of those outcomes.

The mediator does not need to see all affidavits, exhibits, witness statements, discovery, correspondence, or necessarily the pleadings, though, on occasion, a good briefing might require inclusion of some of that material.

What the mediator does need and want (ideally in advance of the mediation) is clear guidance on the issues in dispute and the impediments or blockages that parties and their advisors see to a deal being reached.

This could be set out openly (in a position paper that will be exchanged), or privately (in a confidential letter for the mediator’s eyes only). The sooner you disclose impediments, the better, as it gives the mediator time to reflect on possible work-arounds and explore them with the parties and their advisors.

At the mediation, being concise in engagements with the mediator and colleagues helps to keep the discussions moving. It can be very frustrating for parties if they are left hanging around for long periods while the mediator struggles to gather answers, information, or instructions in the other room.

As advisors, your role is to be equipped to answer the mediator’s questions clearly and concisely. You need to be well prepared to be able to do so, as does your client.

Getting better

Being creative – an invaluable aspect of mediation is how the process facilitates a safe (without prejudice) space for creative solutions to be explored. Creative solutions are ones that the court generally cannot order in the underlying proceedings.

Participants who combine the three ‘Cs’ (of being collaborative, considered and concise in their approach) tend to build trust with each other as the process develops, and that facilitates creative problem-solving.

If you really listen to the other side’s needs, you can try to meet them. If you see the other side’s problem as your problem too, you will be motivated to work with the other side to resolve them.

Several examples come to mind:

• In a contractual claim, agreeing a payment moratorium, suitable payment instalments, and appropriate default provisions,
• In a defamation claim, agreeing how an ‘offending’ article that cannot be removed from the ‘official record’ can be linked effectively to a clarifying statement, so both are always read together,
• In an employment claim, agreeing a package that includes a termination date to facilitate further pension contributions and payment of benefits in a tax-efficient manner,
• In a negligence claim, agreeing the form of an apology acceptable to the plaintiff,
• In a property claim, agreeing what boundary for partition would best suit each side’s needs.

Being collaborative, considered, concise, and creative in your approach to mediation might sound like a big ask. But this sort of positive approach to the process goes a long way towards delivering excellent outcomes. 

Helen Kilroy is vice-chair of the Law Society’s Alternative Dispute Resolution Committee and a partner in McCann FitzGerald.