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Regulars
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Written by Bill Wood QC
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Thursday, 01 November 2007 00:00 |
 One might expect the difficult mediations to be the ones filled with anger, emotion, aggression and insecurity. But any mediator will tell you that in truth anger and emotion are the railway tracks on which mediations run. As so often in life, it's the quiet ones you have to watch out for.
I recall with nothing but affection the opening statement that was limited to the three words 'Fuck off, arsehole.' Similarly the marketing manager from the machine tool company who suddenly burst out with the following: 'You keep saying you are my competitor. You aren't my competitor. You're just like a Jack Russell that is trying to shag my trouser-leg.'
In those moments the English language was doing its job. The atmosphere was dynamic. The speakers were in each case committed to the process and ready to invest in it. Both of them settled their disputes. I have no doubt that they did so the more readily for having (horrible word) vented their emotion. (Incidentally can somebody invent a more positive term to replace 'venting'. This is a magnificent phase of any mediation if not of all human discourse. Making it sound like an embarrassing bodily function is quite wrong.)
The mediations that bring you out in a cold sweat every time are the quiet, stagnant ones. These doldrums are caused by uninterest, inertia, lack of preparation, lack of authority and sometimes by a cocktail of all of the above.
In such cases you are greeted by a party who says something like this: 'I am a vice-president of legal at Verylarge plc. I have the full authority and I should add the confidence of the Verylarge board and shareholders. We take this case very seriously indeed.
'I have brought my lawyers with me today but I have instructed them only to make brief opening remarks as we do not think it is our task today to try to litigate the case. We approach this in a commercial and pragmatic spirit. Having said that any settlement will have to reflect the enormously strong legal and moral arguments underpinning Verylarge's position.'
In the mediations of which I now speak this can be translated as follows: 'I am the junior employee of the claims department who was handed this file last night. I had a quick look at it in the pub. In terms of preparation this puts me substantially ahead of the partner from the commercial firm who is here to look after me and make this all look frighteningly expensive. His opening remarks will be limited to various expressions of goodwill and good sense because he knows nothing whatever about the case. He will spend the day ignoring or slapping down the associate who drafted the short position paper.
'My boss has told me to do nothing significant until about 4.00pm and then to ring him. He should have completed thirty-six holes by then. My future employment depends upon my telling him that it has all gone swimmingly well (even if in truth the lawyers and I have been wholly unable to answer any of the points thrown at us by the other party and the mediator). He may at that stage give me some authority. (I have to remember that up to that point it is not that I have lacked authority, simply that I have not been persuaded to offer more.)'
When I think of mediations of this kind there are two further elements that stalk my nightmares: the 'herd problem' and the 'merits problem'.
The herd problem arises where the mediating party is made up of a group of interests all separately represented. The claims managers of different insurers subscribing the same risk spring to mind. After desultory conversation with the mediator ('Don't worry Bill. We've done the course. We know what you're trying to do.') they ask for some time to discuss the case in private. I have never been present for such a discussion. I know that they are usually interminable. Judging by their usual outcome I can guess that what happens is this. One of those present kicks off by making some scrooge-like suggestion. This is then condemned by the others as a proposal of reckless generosity. Hours then pass before the next minute concession is nervously proposed. When these guys are in a tough mood they can make you feel like a stand-up comedian playing a wet Tuesday afternoon.
The merits problem is another cruel trick played on the mediator. It is a form of Murphy's law which dictates that the side which is unprepared, unperturbed and won't engage with you is the one who has the weakest or no case in law. 'I think you need to do some more hard work in the other room' this party will offer engagingly. 'We understand all the risks'. Thus you are condemned to another 20 minutes in the robust, but now slightly puzzled, company of the other side. They take you yet again through the drawerful of statutory defences protecting their position. As to these you can see no answer. You make your excuses and return to the blithe spirits next door with a heavy heart.
These cases can and do leave the mediator flat-footed, gulping like a stranded fish. A nightmare certainly. But also the ultimate challenge, like climbing a completely smooth rock face.
My worst ever case had all of these features. Utterly exhausting. But did it settle? Certainly. That is after all what they had come for. |
My Toughest Mediation 
