In the world of dispute resolution, mediation sits somewhere between the extremes of court and arbitration on the one hand, and arguments in a bar or across the garden fence on the other. It is in a sort of twilight zone of the law where most of the rules are flexible and, to a great extent, can be made up, before and during the mediation process.
This is largely because mediation is a contractual structure. There is no need for the process, or its outcome, to be consistent with any particular rules of litigation. There is no need to follow precedent or, subject to some caveats, statutes; and no requirement for reasonableness or common sense – commercial or otherwise. Rules of evidence need not apply, or they can be applied in ways that would not be accepted by a court. If a participant agrees to do something then, provided it is not criminal or otherwise expressly prohibited by overarching law, it is irrelevant that only a fool or a loon would do it; that it is wholly unreasonable or nonsensical; that you, as the lawyer advise against it; and that a judge would order otherwise.
This aspect of the process can make lawyers uneasy and it is a difficult part of the mediation training course for lawyers to deal with. Not least because lawyers are used to advising on principles that, more or less, are certain and born of sound reasoning.
Of course, lawyers should still advise clients on the relevant law. However, mediators can (and should) help participants to open their options and move outside the rigours of the law. They can ask questions about motive, belief, hopes, fears, desires and wishes; and they can draw out the emotional elements of the dispute. Something may be important to a participant for reasons that are wholly irrational and/or invisible to everyone else. A participant may value a thing improbably highly so that, by giving that thing, the other participant may be able to achieve a settlement that otherwise would not be available.
Lawyers are not unemotional but they are trained to try to remove emotion from their view of the law. In general, there is a right and wrong position in each claim and those positions must be established by objective, pragmatic reasoning rather than by subjective, vacillating, emotional reactions. Mediation disrupts these concepts and lawyers can struggle with this.
Forget ‘us vs them’
Lawyers are also trained to take their client’s side and to fight for their client’s rights. But mediation seeks to moderate the aggressive ‘us vs them’ elements of traditional disputes. That is not to say that aggression is removed. Indeed, allowing participants to vent anger and frustration is an acceptable part of the mediation process because in the course of an emotional outburst the truth might emerge (‘If only you’d just say you’re sorry’ or ‘I always wanted that knitted cat thing that uncle Bill kept by the fire’). Such revelations can lead to settlement proposals that, up to that point, had been unimaginable (‘So if I say sorry you’d be willing to…?’ Or, ‘So if you get the knitted cat thing you’d be willing to…?’).
In such cases, if everyone follows the more traditional litigation routes, the real core of the problem may be hidden by the legal arguments and the formalities of the traditional processes. The law and lawyers may get in the way – not intentionally, but simply because that is the way traditional processes work. Learning to step back and allow the emotional sides of disputes to emerge is a part of mediation training, and it can be a hard thing for lawyers to do. It feels dangerous and uncontrolled (imagine allowing a client to say what they think!).
Looked at in different terms, traditional litigation processes tend to promote the intellectual equivalent of trench warfare and the taking of fixed (entrenched) positions. Mediation moves those elements out of the way, brings the participants into ‘no man’s land’, and opens the world of options and ideas. It puts a basic point: tell me what you want. However, mediation should move on to add a supplemental ‘and why’.
Understanding why something is important can lead to huge breakthroughs in the progress towards settlement of a dispute. Everyone sees the world through unique emotional filters. Therefore, until it is known why something is important, the emotional power it exerts and the apparent irrationality that it elicits cannot be understood. And until that emotional power is understood (or at least recognised) the negotiations will struggle to proceed to resolution. The person demanding the ‘thing’ will not give it up. They are emotionally tied to it and, typically, no amount of (apparently) rational argument will displace the (apparently) irrational attachment.
So we see, yet again, how mediation throws certainty to the wind. Does anyone enter mediation with any sense of how it will work out? Remember, the participants are emerging from their trenches and walking into no man’s land – will they be bombed or invited to play football and share chocolate? The participants enter the process knowing only that they will be allowed, more or less, to say what they feel, as well as what they want from the event.
This is all quite alien to traditional litigation processes and the mediation arena can appear an unfamiliar place for lawyers. Their role changes quite considerably and, to some extent, their importance diminishes. They are not the leaders of the debate. Their clients are given free rein and encouraged to speak out – rationally or otherwise; coherently or not. And, as everyone is speaking out, everyone else needs to be listening. Perhaps the greatest lesson of all in mediation training is based on the cliche ‘we have two ears and one mouth, and they should be used proportionately’. Indeed, I think eyes should be added to the list, because watching what is going on is also very important.
Listening and watching are some of the most valuable things lawyers can do while the participants are talking to (or shouting at) each other; or, sitting, silently seething. What is being said? What is not being said? What is body language saying, or not saying? As noted, emotional outbursts can reveal many things, intended or otherwise. Good mediation lawyers should be alert to them – their own clients may be too distracted or emotionally charged to notice elephants in the room, let alone nuances and subtleties that can bounce across the table like peanuts carelessly dropped from the pachyderm’s trunk.
In conclusion, lawyers who participate in mediation need to adjust their minds to a new and unusual world. They need to step back from the legalistic arguments and typical concerns that wrap themselves around traditional litigation; step away from the entrenched ‘us vs them’ mentality of litigation and encourage clients to speak out, vent their emotions and anger; say things that, in normal legal actions, would be inadvisable; and, to listen to what is coming from the other participants. Biting their tongues, opening their ears and eyes, and allowing things to happen may be the best things that a lawyer can do – even though they grate on the nerves and contradict the ingrained instincts of the litigator.
Christopher Parr is a solicitor and mediation services director at Unity Legal Solutions.