Most of my work as a mediator is in commercial disputes.

Commercial disputes are fantastic for allowing a Mediator to bring into play a whole repertoire of skills. The use of those skills makes a real difference to whether or not a successful outcome is achieved or not.

If the parties are accompanied by lawyers, then, if a mediator fails to take charge of the process (both pre-mediation and during the mediation) and fails to make use of a range of dispute resolution skills the most likely result of that will be that what was supposed to be a “mediation” becomes a lesser creature – a “hosted settlement conference”.

This is what I often do -

PRE-MEDIATION

• Ask the parties or their lawyers to send me (preferably at least 2 weeks before the mediation date) a folder containing their Position Statements, any pleadings filed in court, a summary of any prior attempts to settle the dispute and any other documents they attach importance to;
• After reading this material I then generate a Summary of that material and a List of questions that I ask the parties to review to prime their minds for the mediation experience.

AT MEDIATION

• I have a special Power Point slide show that I use to help explain the Mediation process and to focus the Parties (and their lawyers’) minds on a different set of questions that have nothing at all to do with the law, legal issues or measuring up “evidence” to the “legal issues” in the case. This is done to help shift the mindsets from one paradigm for dispute resolution (the legal one) to a different paradigm that chiefly focuses on the parties (not the lawyers) working out what is important to them and on what would have to happen that day for them to resolve their dispute and bring the litigation (if the matter in in court) to an end.
• I get the parties (not the lawyers) talking to each other in Joint Session as quickly as possible after the mediation process has been explained.
• I try to create a relaxed and informal atmosphere in the Joint Session that will foster conversation between the parties.
• I use the Lawyers (if they are there) to help clarify things that need clarification if it becomes clear during the discussion between the parties that such clarification is needed to keep them on track and on point.
• I get the issues that are coming out of the discussion up on the white board and seek feedback from the parties that they both see them as important issues in their dispute.
• I give each party breathing space by taking opportunities to summarize things back to them and asking each of them to signal that they are happy with that summary before we try to progress further in the discussion. Often this PAUSE in the dialogue between the parties, whilst I am summarizing, allows either or both parties to go deeper into a particular issue or raise a tangental one.
• When it seems to me that quite a lot of has been talked about and the parties have come to a pregnant pause in their face to face discussion, and they have both confirmed what they feel are the chief issues and each spoken around those issues to each other, I then suggest that we pause the joint session and allow each side to move to a private break out room where they can de-brief on that joint session discussion with their respective lawyers.
• It is important at this point that I move quickly to speak to each side of the dispute in their private space and where total confidentiality applies to my discussions with them.
• My moving into this dialogue with each party quickly I am able to get a quick handle on what has come up as KEY MATTERS OF IMPORTANCE for each side in the dispute.
• This allows me to identify any openings for moving the parties closer together and closer to settlement.
• It also allows me to identify the potential blocks and barriers and start to explore with each party options to diffuse or break down that block or barrier.
• Using this approach I am soon able to start getting permission from each party to communicate certain things to the other party to test reactions and responses.
• This can stimulate the further progress of the discussion that occurred in Joint Session.
• This process of helping explore options and ideas and shuttling them between the two sides will sometimes see the parties move ahead in their progress to a final resolution of the dispute in leaps and bounds, and if this occurs I see no need to move the parties back to Joint Session.
• But if this shuttle process seems to be getting bogged down by intransigence and falling energy I usually choose to move the parties back into Joint Session.

I am setting this out in some detail as I want people to see that Mediators need to be PROACTIVE in using their skills to facilitate and aid the parties to achieve dispute resolution and to try and avoid the whole process being hijacked by legal minds that are more attuned to “settlement negotiations” based around Legal Issues and Evidence and Facts rather than attuned to the Art of Mediation.

Christopher Whitelaw

Mediator