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Regulars
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Written by Andrew Paton
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 When reflecting on my toughest mediations, several sprang to mind. The first concerned a boundary dispute which was on its way to the Court of Appeal. After hearing the Appellant make his opening statement, in person, the Defendant (also in person) rose, stabbed his finger towards the Appellant's chest and said, 'This is bo***cks; the only mistake I've made here was in not getting you shot', before walking out.
I was left with an Appellant in a state of shock and an Appellant's girlfriend in floods of tears. I felt in something of a quandary about what to do. Electing to follow my guiding principle of 'travelling hopefully' I spent a couple of hours talking through the issues and risks and eventually helped the Appellant to formulate a proposal that seemed to deal with his neighbours problem. I was both surprised and delighted to learn that, three months later, the case had in fact settled along the lines which the Appellant had proposed.
Then there was the time when 62 people turned up for a five party mediation. The largest team comprised 12 members including leading and junior counsel, a formidable party from the solicitors and an expert who had been flown in from Austria. The most pressing problem that I had to deal with in the first place arose from the fact that the largest room available could only accommodate 30 people seated at the table. I solved the problem by issuing tickets, six per party, for the front row. Those without tickets had to stand. This was the mediation that taught me that however carefully you try to manage the moment when the parties first come together they will invariably do something different. I had suggested that, having had their tickets, the parties should simply take their place at the table and then we would proceed to introductions. In fact all 62 individuals shook hands 61 times. It took forever. The mediation was scheduled to last for two days and, guess what, it did - but produced no settlement. Mediations always seem to expand to occupy the time allocated to them. It did settle about three months later after a lot more work over the telephone. It is one of the few cases where I have been persuaded to make a non-binding recommendation. So confident was I that a deal would be done on those terms that I actually blue tacked a score sheet to my wall to record the yes votes as they came in. Much humble pie was consumed when not one single approval was received. Nevertheless the parties, graciously, allowed me to continue working with them and eventually terms were agreed.
Yet another mediation seemed to go horribly wrong when the Defendant, on being told that the Claimant's final offer was £260,000, picked up his coat and walked out confirming that when he had said that the most he would pay was £150,000 he meant it. On being informed about what had happened, the Claimant decided that, after all, he was prepared to accept £150,000 by which time, of course, the Defendant was on the Tube and out of mobile range. Sensing that the opportunity to settle might be slipping away I kept on phoning the mobile until, at last, the Defendant surfaced at Paddington. The terms of settlement were finally negotiated over the telephone whilst the Defendant relaxed over a pint in the station bar. Not for the first time did I appreciate that no one knows what their own 'bottom line' is until it jumps up and hits them.
On reflection, however, my toughest mediation is always the last one that doesn't settle on the day. No matter how hard, long, difficult, emotional or traumatic the mediation is, if it produces a settlement, the stress just simply melts away. Conversely, if the parties part with no deal having been done, I always seem to suffer agonies of remorse, recrimination and regret as I reflect over the process to try to work out what else I could have done to help. This is despite the fact that, intellectually at least, I am fully 'on side' with the proposition that my task is not to settle the case but rather to help the parties to do it for themselves. The last such occasion was a couple of weeks ago and concerned the contamination, through the escape of a noxious substance, of a property in the course of construction. The parties came towards each other to some extent but never really got into the 'ball park' where a deal could be done. Whilst I have done several mediations since then, I am still trying to come up with fresh ideas to help the parties into the zone. I can't stop worrying about it; right now that's my toughest mediation.
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My Toughest Mediation 
