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Regulars
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Written by Jane Andrewartha
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Friday, 01 February 2008 00:00 |
 The young female trainee on the side of the multiple Defendants confided in me that she was truly pleased that I had been appointed – I felt flattered. I had not, she explained, been the choice of any of the parties – disappointment crept in. In fact there had been resistance to me – now rising panic.
The young female trainee on the side of the multiple Defendants confided in me that she was truly pleased that I had been appointed – I felt flattered. I had not, she explained, been the choice of any of the parties – disappointment crept in. In fact there had been resistance to me – now rising panic. However it became plain that all other suitable candidates were either QCs or had committed the offence of allowing their parents to send them to public school (one can easily see that there may be genuine doubt that such compliant children could ever make independently minded mediators). Some were both.
The challenge of multi party mediation does not lie in controlling the sheer numbers of those who turn up. Nor does it lie in the obvious problems associated with trying to give a dozen or more rooms the feeling that they are getting value for money when realistically they can expect to command no more than precisely one twelfth of your time. Nor is it remembering who everyone is (more than once I have enthusiastically introduced myself several times, all within the space of about 5 minutes, to the same increasingly bemused individual!). And it does not matter that the mediation is not only multi party but also involves multiple actions (possibly both arbitration and litigation) and is, in addition, also multi jurisdictional. The greatest challenge is to avoid competition to get the best deal, whether this be genuine
or tactical, between the numerous Claimants (or Defendants). This frequently involves parties creating a wholly unnecessary and totally obstructive artificial link between their fate and that of others.
There are Claimant representatives who insist that, no matter how favourable the proposed settlement figure, they will accept it only as long as it is more than another Claimant is getting. More difficult still are the Defendants, A, who will pay half what Defendant B is contributing but nothing at all if C is not 'made' to also contribute (B, of course, is sitting in his room offering 20% of A's figure while C has gone home).
Such tactics are often dreamt up by the representatives (legal or otherwise) once the mediator has cleared the primary and often difficult hurdle of getting monetary offers from multiple parties flowing in the right direction. The parties’ initial concerns that no settlement may be possible having receded, relief makes them bolder in their expectations of other parties (and, of course, of the Mediator!).
An early morning discussion, usually pre-opening session, with the various decision makers in each room will often obtain their assurance (usually only too willingly given) that they do not care about the fate of the other parties in the litigation. This is then usually sufficient to deter or squash such tactics later in the day.
Such pre-emptive action, however, does not cater for the trade unionists.
I have mediated a half dozen or so disputes involving trade union representatives ranging from arguments over pensions and disability payments, through terms and conditions of employment to a gay sexual harassment claim where one party nearly wrecked what could have been an amicable process by bringing their union representative with them. These are seasoned negotiators, happy to sit out the debate for as long as it takes to get the right
result. Even if the trade unionist represents only his own individual case the Mediation can be suffocatingly and distractingly crowded by the invisible presence of the future brothers and sisters who could suffer equal injustice if the ‘proper’ result is not reached.
So I faced a room of about 10 former union officials charged with a failure to properly discharge their duties. All were of an age when they should be embarking on well-deserved retirement after a lifetime as skilled industrial workers. Instead they faced protracted litigation. The legal cases against each of them differed radically. Their leaders were plainly in the most trouble but all were potentially threatened with poverty in their twilight years.
"Ah'm not settlin' 'ere today, lass, unless Charlie gets a fair deal"
"Nor me"
"And Ah'm not settlin' unless Charlie AND Fred gets looked after"
These pronouncements from three of the less obviously exposed parties. Touched by their loyalty but recognising a growing problem when I see one I announced that I intended to speak to each of them individually for 5 minutes. They looked uncertain but complied.
Of course, it took well over 50 minutes but it was time well invested. Some were just waiting to retire abroad, some were recently widowed adjusting to life alone, some had wives who were terminally ill and some themselves were fighting ill health. All were male. None were wealthy. They entered the room I occupied through one door, shared their personal fears and concerns and exited to join their colleagues whom I had already interviewed through
another.
Back together again they pronounced the process as not dissimilar to visiting the 'nit nurse' at school. I was not offended. A relationship had been established. I had acquired a huge regard for these difficult, bolshy even, but proud Yorkshiremen. They, in turn, started to open up as to their individual positions and concerns, fretting about Fred, Charlie and the others but recognising the need to address their own dire positions, trusting me to address
those of the others. Never abandoning their colleagues they slowly found solutions they could each live with.
A deal was done that embraced them all.
After the papers were signed their relief was visible, most showing emotion approaching elation at the end of many years of personal torment exacerbated by the predicament of their colleagues. They embraced the nit nurse, again individually, still proud but all signs of truculence gone, declaring that she ‘Done not bad for a lass’. I was no less touched by these events reflecting on the need always to treat every participant as an individual even when he himself is resisting that and endeavouring to tie his fate, to his own detriment, to that of others.
The toughest cases are not those where difficult representatives take illogical stands for tactical advantage but those involving real people of integrity whose principles conflict with their own best interests. They are also the most rewarding.
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