Common Problems in Mediation and How to Overcome Them
24 October 2021
By Anthony Marks
Reproduced by kind permission of ADR Group
In this short article, I consider some of the issues I have experienced in mediations that I have mediated; and suggest some practical solutions.
Parties not willing to meet face to face in joint session
This is an increasingly common situation; the mediator goes ahead with private sessions, without a joint opening session. There have been debates in the mediation community as to the pros and cons of the joint opening session. In my view there are strong advantages in holding a joint session at the start:
It is an opportunity for each party to put its case to the other side and for the other party to hear it;
The principals in the dispute see the other side “in the flesh” and therefore may be better able to appreciate the other side’s position;
The mediator has an opportunity to set out a timetable for the day and ensure the parties understand the process; he or she can also ask open questions of both parties.
If there is no joint session, the mediator will obviously have to outline the roadmap in private sessions. The parties’ advisers are likely to put their strongest legal points to the mediator in the initial private sessions. In order to save time and avoid legal points being conveyed “second hand “ to the other side by the mediator, it may be useful to hold a joint session with the lawyers and the mediator without clients. I have often found it useful to hold such a session early in the mediation, even if there has been a joint session with clients and lawyers at the start.
As the mediation proceeds, the mediator will look for an appropriate stage to persuade the parties to meet face to face. If a settlement is reached without any face to face meetings of the principals, it will still be useful to suggest they meet at this stage, as this can help give the parties confidence in making the terms of the settlement work.
This can take several forms, including:
Each party not wishing to be seen to make the first offer;
A party making a derisory first offer and refusing to move from his or her position after offers from the other side;
An impasse where parties have each made an offer but they refuse to move any further.
In the first situation, the mediator will explain to the parties that there is no magic in who makes the first offer. The first offer is testing the water. If the party making the first offer can make its offer on a principled basis, this can be powerful in the subsequent negotiations.
In the second example, the difficulty with this party’s refusal to go beyond a nuisance or derisory offer, maybe that the party has not come to the mediation to try to find a settlement. The party may only be “going through the motions''. The mediator will need to explore with the client and their lawyers the reasons for coming to mediate and what they wish to achieve from the mediation. This private session will also involve reality-testing with that party to ensure they are aware of all the risks inherent in their situation.
In the third situation, where negotiations have progressed but reached a deadlock part of the way through, the mediator has a number of tools that can be used. First, the mediator will, in private sessions, reconsider with each party their BATNA (Best Alternative to a Negotiated Settlement). He will consider “what if’s” in terms of testing the party’s response if the mediator could secure a better offer from the other side, or to present the parties with a range of possible settlements. Other techniques are to suggest splitting the difference, to make a mediators’ settlement proposal, or for the mediator to make a double-blind offer. The mediator might also at this stage look for other incentives to settle, beyond monetary offers. It might also be helpful for all parties to break for a while or, as a last resort, the mediator might suggest adjourning to another day.
A party using the mediation purely to obtain further information from the other side
The exchange of information between the parties is one of the essential ingredients of mediation; the parties are able to get a better understanding of the other party’s position, helping them to evaluate their own position and negotiating strategy. I have however experienced mediations where it seems the sole purpose of, say, the claimant agreeing to mediate, is to obtain further information about the defendant’s assets, to assist with enforcement of a judgment down the line. The request for information about assets may also be linked to the reliability of a settlement offer.
Is this a problem for the mediator? I suggest the mediator should consider such request carefully with the defendant and his legal adviser before such information is disclosed, and whether the disclosure would assist in achieving a settlement. If it is possible to move forward by supplying the information, then on balance it might make sense to make the disclosure. It might also be necessary for the mediator to explore with the party making the request the purpose of the request.
A party asking the mediator for legal advice, or the mediator offering advice on the claim/ defence
There are obvious dangers in the mediator giving legal advice to one of the parties, raising questions as to the mediator’s impartiality; or undermining the position of that party’s legal adviser. If the mediator has doubts about the strength of a party’s legal position, this can only be addressed by realty testing and indirect questions.
I have had a situation where one party’s lawyer asked me, in pre-mediation discussions, to be evaluative in my approach with the other side! I pointed out that I had to be even-handed. It did however allow me halfway through the day’s mediation (when we were not making any progress in the negotiations) to say to the lawyer (who had asked me to be evaluative with the other side) that I was now going to be evaluative with their client’s case. I suggested that the amount of their client’s claim was considerably overvalued. They accepted the point and the case settled later that day.
Trust between the parties’ respective lawyers has broken down
This can happen where, for instance, the defendant’s lawyer has taken bad points on jurisdiction or service of the proceedings with a view to delaying the litigation process, ultimately running up unnecessary costs. This is a challenge for the mediator as the cooperation of the parties’ advisers is usually an important element in achieving a settlement.
The mediator has to work harder in attempting to achieve better communication between the advisers. Sometimes it is possible in this situation to bring the principals together with the mediator, although the mediator will have to earn the trust of the parties’ advisers for this to happen.