Litigation is fought along a line determined by the remedies available to the court, while the outcome – the point on the line at which the litigation concludes – is largely the result of one or more binary choices made by the court. Mediation
opens up another axis of possibility; mediation takes place on – not ‘is fought on’ – a plane; it works best if the binary win/lose adversarial mindset is, if not forgotten, at least not allowed to override problem-solving.
For those trained in the adversarial system ‘mediation advocacy’ (itself something of an oxymoron because often there is no actual advocacy required) can seem like being an Olympic swimmer dropped in the middle of the ocean without having
been trained in how not to swim lengths.
Mediation can be thus be disconcerting for those coming new to it. There follow some practice points from the recent Civil Mediation Council Conference, drawn in the main from a session entitled ‘Knotty Problems – Overcoming Challenges in
Commercial Mediation’ led by Colin Manning, Mark Mattison and Patrick Taylor.
The Bar; a mediator's view
At the conference, the most frequently voiced complaint about litigators, and the Bar in particular, is that they go into mediation, unable to leave litigation behind. They address mediators as ‘Sir’, they make submissions (which is pointless
because mediators can’t decide anything), they grandstand and their vision stays so determinedly fixed on the litigation outcomes that they can be blind to, or worse can frustrate, the solution that lies off to one side.
That is not to say mediation is wholly ‘free-form’:
(1) There will always be the mediation agreement, signed by all those participating in the mediation; those who are not directly in dispute but there to provide moral support, still have to be bound by confidentiality.
(2) Discussions will always be without prejudice and completely confidential, unless and until a binding settlement agreement is signed.
(3) During the course of a mediation mediators will not communicate anything said by one participant to the other without express authority to do so.
(4) Those present and in dispute should have authority to settle.
(5) Mediators will always have the power summarily to bring the mediation to an end without giving reasons. This is essential because sometimes an issue of conflict, bad faith or illegality may arise and the mediator’s duty to maintain confidentiality
prevents the giving of an explanation.
Beyond these basics, the form of mediation can be extremely flexible. Mediators will invariably seek to establish a wider set of ground rules (standards of civility, a willingness to have the mediator to ‘reality-test’ a participant’s
position, an agreement not summarily to walk out without first speaking to the mediator). Family mediations will generally involve a number of shorter sessions, while in civil mediations, the tendency is generally for there to be just one, day or
half day, session. Beyond that the participants may, or may not, meet face to face. There is no prescribed form for making offers or limiting what offers can be made.
Being as flexible as it is, mediation can inevitably throw up difficulties which even experienced mediators can find hard to resolve.
Authority to settle
In the course of a commercial mediation involving a company, the stage was reached where terms of settlement were agreed by those present, but, at that point, those representing the company revealed that it was outside the ambit of the authority to settle
they had been given. It was a settlement which, moreover, could not simply be approved by someone else at the end of a telephone but which required a board meeting. The starting point of the discussion was whether there had been a breach of the mediation
agreement regarding authority to settle and whether the mediation should have been terminated summarily. In the case on which the example was based it had not been and the general experience was that limits on authority to settle were not uncommon.
A mediation agreement cannot expressly cover the extent of an authority to settle because that, in itself, would indicate one participant’s assessment of its own position to the other. There was some thought that summary termination might have
been justified if it appeared that the limit on authority had been a ploy to get the other participant to reveal the best terms on which it might settle in order then to put in a slightly lower offer.
In a mediation involving a family farm and a proprietary estoppel claim by the adult son of elderly parents, a daughter, a full sibling of the son, turned up unexpectedly to ‘support’ the parents. Indirectly, she and another sister had an
interest in the outcome of the litigation because of their likely inheritance prospects. Should she be allowed to sit in? The parents were happy for her to stay. What if she asked that her presence should not be revealed to her brother? The consensus
was that subject to obtaining consent of her brother, the daughter should be allowed to sit in, but the latter request, if made, could not be acceded to, not least because the daughter would have to sign the mediation agreement to preserve confidentiality.
Her presence was something that a mediator would have to deal with head-on. In the real-life case the daughter did not ask for her presence to be concealed and her insights into the dispute in fact aided settlement.
When mediations get stalled or ugly
Mediations can reach a point of deadlock or get unpleasant or personal. A break can frequently reduce tensions, chatting around a subject rather than directly talking about the issues can also help; in mediation understanding the subtext to a dispute
can sometimes uncover a path to settlement. Participants can be asked to put their best offer in the form of a ‘sealed bid’ in the absence of the mediator, who only looks at the respective offers after both participants have formulated
their respective positions, this can, at the very least, show whether or not there is any real prospect of settlement. As mediation advocates, be warned, sometimes in order to break a deadlock, mediators may even ask participants if the mediator can
speak to them alone, without their advocates.
There was no general consensus as to whether or when it would be right as, a mediator, to ‘slap down’ a participant who had descended into outright rudeness. Sometimes blowing off steam was a part of the process and sometimes swiftly shutting
down bad behaviour was key. The point was also made about the need to have some appreciation of cultural norms; without wishing to endorse any cultural stereotyping, to illustrate this the tale was told of a mediation between an Australian Company
and a New Zealand company, that every second word was ‘fuck’ wasn’t rudeness; it was just conversation.
Cognitive bias and judicial heuristics
Rawdon Crozier explains how leaving our hunter-gatherer instincts behind, and a knowledge of heuristics can assist lawyers, mediators in particular –as Spenser Hilliard and Ian Christie explained in a recent presentation at the Civil Mediation Council Annual Conference
The dictates of natural selection ensured that, among our early ancestors, those who spotted and fled from a marauding bear fared better than those who stopped to consider to a nicety, whether it was a marauding bear or in fact a tree shaped a bit like
a bear that they had just spotted. Those equipped with genes which supported the making of a sometimes wrong snap decision were just better at surviving long enough to ensure those genes were passed on to subsequent generations. Hunter-gather brains,
which served us so well as cave dwellers, serve us and the litigants we serve less well in the practice of the law. The quick, plausible evaluation can often lead us astray; it is a frequent problem when courtroom and science collide. A proposition
need only hold water for long enough to persuade a judge or the requisite number of jurors of its validity to produce, in some cases, a fatal result: despite having her conviction eventually overturned, Sally Clark did not long survive the experience
of a court’s being, as Bean LJ in a later case put it, ‘mesmerised by the confidently expressed views of a senior and distinguished expert’. Yet the evidence of the expert in question, Professor Sir Roy Meadow, was the equivalent
of running from the bear-shaped tree. Not being an epidemiologist and lacking any statistical basis for saying that the chances of having two cot deaths in a single family was a simple matter of multiplying the probability one cot death by itself,
he expressed the view that the chances of having two sudden infant deaths in the same family without some non-natural cause were odds of one in 73 million, which were as unlikely as ‘the chance of backing that long odds [80:1] outsider at the
Grand National… four years running’. There were other cognitive biases at work in the case; the credibility of expert witnesses can be dangerously enhanced by the ‘halo effect’, the tendency to assess the credibility of a
witness on the basis of a favourable initial impression. There is an equivalent ‘horns effect’, a tendency to assess less favourably someone who has made an initially bad impression. To use the word impression at all, however, implies
the intervention of an at least semi-reasoned evaluative process, whereas the fact is those biases can work on an entirely subconscious level. Those who doubt this might like to visit https://implicit.harvard.edu/implicit/ and take an Implicit Association
Working heuristically, the brain will react differently to objectively identical propositions, so a litigation risk, described as ‘a 70% chance of winning’, may be processed differently to ‘a 30% chance of losing’. Psychologists
can endlessly frame series of questions that will lead the most rational among us to say we would prefer coffee to tea, tea to a soft drink, and a soft drink to coffee. In reality-testing offers of settlement or a mediating party’s position
in negotiation, re-framing the offer or the position in different terms, or from the other parties’ perspective, can thus be an effective tool in the black arts of mediation (neither Hilliard nor Christie, I should point out, used the term ‘black
arts of mediation’).
Even the process of evaluating information to decide what the litigation risk is may be skewed by the heuristic tendency to follow a narrative which seems plausible even though it is based on too little information. I can give a graphic illustration of
this from the days when computerised conflict checks were in the realms of science fiction. A member of my then chambers ended up managing to advise both sides of the same dispute; the facts were the same but their description in the respective sets
of instructions, of course, was completely different. Both litigants were advised they had a 70% prospect of success.
Judicial heuristics is another up and coming field. We are perhaps behind the curve in this jurisdiction. France has already banned analyses of individual judge’s heuristic biases. Heuristics (possibly before they were even called that) famously
played an essential part in the overturning of Claus Von Bulow’s conviction for the attempted murder of his wife, immortalised in the film Reversal of Fortune. Two interesting introductions can be found in Heuristics and Biases in Judicial Decisions
by Eyal Peer & Eyal Gamliel and ‘Inside the Judicial Mind’ Cornell Law Review, Vol. 86, No. 4, May 2001 by Chris Guthrie, Jeffrey J Rachlinski, Andrew J Wistrich.