Outcome Forecasting, Decision-Making and Settlement - Webinar

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“Mediator's New Breakfast Club Recording - 25th November 2020”

Topic: Outcome Forecasting, Decision-Making and Settlement 

Guest Speakers: Stephen Bate - Barrister, Accredited Mediator, Chartered Arbitrator, Legal 500 2021 listed as a Leading Mediator.

Transcript

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Welcome to the mediators, new breakfast cup, and virtual meeting by zoom. We are just let everybody know we are going to record this. So we'll make make the proceedings available shortly afterwards. Particularly welcome to all our participants, we had over 150 people registered. And as we opened up, we had about 80 on the call, and that's increasing all the time. So that's a fantastic turnout. And you're all very welcome. However, the one downside of that is that we're not able to ask all the new attendees of the attendees for the first time to introduce themselves because there's simply be too many, but people attending for the first time might want to email either David and or Martin palter, just to set out who they are and what they do. Otherwise, the format is much as as we've developed. I will my Michael COVID, obviously, and I will introduce our great speakers, Stephen data in a minute. And then Dave, oh, and we'll wrap up at the end. And very much in Dave's debt and Martin's as well. And also, we should name check the late David rich Belfer, really having helped to kick all this off. I expect we're all very experienced with zoom meetings now. But just a couple of points, there is a chat facility which can be used. This is being run as a zoom meeting. So that means that Martin can control who isn't isn't muted, but hopefully you can all see who's on the call. And then we will leave the meeting open at the end, and there'll be an opportunity for some networking.

 

We'll put up a couple of poll questions as we go through which require a yes or no answer. And then we'll put up the answers. And I think that's all I was going to say. The only other kind of pop up parish notice really is that for those who are interested, it appears that Supreme Court one year and one week or 10 days or 12 days actually after it ended, its hearing in the Halliburton and chub case, is apparently going to a pine on Friday. So those of you who might be interested in conflicts of interests when other appointments should be declared, particularly in relation to arbitrators may want to take note of that. So without further ado, on to Stephen, whom I hope you can all see. Stephen is a friend and colleague. And he started off life as a barrister. And now he's a full time independent, neutral, accredited practising mediator, and arbitrator. He's mediated an awful lot of business and commercial disputes and has a particular interest in the sports area. When I was asking him about his hobbies, he mentioned, sports of all kinds as opposed to all kinds and also an interest in fishing, particularly fly fishing variety and history. And I think he's also going to share with us I'm ride a very kind of personal take on what led him into mediation. So, Steven, without further ado, my hand over to you and I will mute myself and look forward to hearing from you.

 

Thank you, Michael. And good morning everyone. forecasting is a part of life, the weather, the stock market, economics, politics, COVID. And it's likely effects and the forecasting, we do routinely going about our daily lives. The forecasting I want to talk about is the prediction of case outcomes by party's lawyers in mediation, to talk about its role and relative importance in settlement, and to see how it connects to decision making, whether to settle the dispute or to press on to trial, or the final hearing of an arbitration. This is a club for new mediators in particular, and I want to tell you a bit about how I came to mediate where they met whistlestop tour of my 16 years of mediation and some of my experiences of how forecasting did or did not play a role in the outcomes. My professional background is Michael has said is as a barrister. Initially, I did a wide range of civil and commercial disputes. And then I came to do more and more entertainment and media cases, records, films, TV and so on. In 2003, I did see it as five day mediation course, became accredited. Looking back in my mediation records, I see that my first mediation was in July 2004. It was done under the county court scheme, and I was paid 100 pounds. I recall saying that it was the best 100 pounds I earned in my life, and I meant it. Since then, I've gone on to do a lot of mediations. Many have been routine. But I've generally learned something new and everyone I feel have been very colourful to mediations involving or with a background of knives, guns, death threats, rats, tears, shouting and walkouts, not the rats, but in other ways, much like the music litigation I used to do. Not outcome forecasting. And I'm talking here about the general run of civil litigation and civil disputes. How often are those of us who have mediated been told by both sides that they're going to win the case? Or they're likely to?

 

Martin is going to do a poll for you to participate in if you wish, with that question and a follow up? Of course, the mediator rarely knows. But my sense is that in many cases, both sides have been advised that they're likely to win. Why? I think in part is because most cases are decided on the facts. Take contract disputes. As an example. When a dispute arises, commercial trust breaks down, something has gone wrong with a bargain. Both sides think they're in the right, lawyers become involved. And the correspondence is hot it up as rivalled positions are taken. Of course, each side's version of events cannot be true. parties to the same transaction, how can they possibly have such differing beliefs? I discussed this problem with sir Brian Neal, the former appeal court judge before he died. And what he told me was that it seemed to him when he was a trial judge that it was as if each side's witnesses were occupying two different worlds, so different weather positions that were being taken. I call it the problem of Two Worlds. Could it be that one side or its witnesses are lying to their lawyers, sometimes, of course, but in most cases where the facts are disputed, courts make findings based on the recollections of honest witnesses. Having thought about and read around the problem, it seemed to me there were probably several reasons for the two worlds limitations in human perception, witness memory, the role of bias, all these are connected, I suspect. limitations on forecasting as an exercise. A forecast is not a prophecy, and also that some lawyers are not very good at it. Perception is selective and not objective. In 1951, a game of American football was played between Princeton and Dartmouth universities. It was roughed violent and very controversial. studies were carried out by a social psychologist and survey researcher published in a now famous article, they saw a game.

 

In the first part of the study, students from each college were asked questions about which team started the rough play, and whether the game was clean and fair, rough and fair or rough and dirty. The results showed why discrepancies of perception comparing one set of students against the other. In a further part of the study. The authors are students from the two universities to watch a film of the game and to say which team had committed the greater number of fouls. Students from one university saw the other team making more than twice as many files as their own team. Students from the other university thought that the number of files was about even and the author's came to this striking conclusion. It seems clear they said that the game actually was many different games. It is accurate and misleading to say that different people have different attitudes about the same thing. But the thing simply is not the same for different people. The problem of false testimony is not confined to recollections of visual events. Consider this example of flawed recollection that followed a meeting of the Cambridge Psychological Society, recorded in an Hunter's book memory. Two weeks after the meeting, each of the participants was asked to recall what had been said in a discussion. After the meeting. Their recollections were compared against a recording. The participants forgot over 90% of the points discussed, they were wrong about nearly half of the points they did recall. And they recall comments that had not been made and converted implicit meanings into explicit comments. Some of you may also be familiar with to have Mr. Justice Leggett now Lord Leggett's decisions in Gethsemane and also blue and Ashley. And one article that was quoted in the blue and Ashley judgement from academic psychologist said this, what gets encoded into memory is determined by what a person attends to what they already have stored in memory, their expectations, needs and emotional state. This information is subsequently integrated, that is consolidated with other information that has already been stored in a person's long term memory. What gets retrieved later from that memory is determined by that same multitude of factors that contributed to encoding as well as what drives the recollection of the event. biases in my book, which you may have seen mentioned off in the flyer to this meeting, I referred to 11 party and witness biases party bias is slightly different to witness bias. These include self serving bias, the need to distort information to maintain self esteem. The primacy effect information considered early in the judgement process is overweighted when a final judgement is made.

 

So information coming to the attention of a party early in the dispute from its staff might be given excessive weight for example. And a third example of these is the empathy gap. The tendency to underestimate the effect of our emotional state and overestimate the intellectual influence on our decisions in a business dispute, the mediation or both. An example of that would be to maintain that the dispute is purely commercial and not affected by the emotions of the participants. The third layer of bias is lawyer bias. Us research. A lot of us research that has been conducted indicate that lawyers are not always good at predicting case outcomes. In one article, which brought together a number of studies called insightful or wishful lawyers ability to predict case outcomes, the author's pointed to overconfidence and other biases in many fields of predictive decision making, stating previous research revealed that expert predictions of the likelihood of events were influenced by the person on whose behalf they were working, and that overconfidence was more prevalent, when the expert had some degree of commitment to an emotional investment in the outcome. More generally, lawyers may engage in wishful thinking, they might believe a certain outcome is probable simply because of the desire to reach it referring to further research. So how does all this relate to the mediation process? Part of the mediation may involve what's often called reality testing.

 

This is generally done in private confidential sessions. As many of us know, it involves looking at the realities of the dispute, both practical and legal. Not every case needs the reality testing of legal cases, and in some it will be wrong to do it. A few examples from my mediations, for example, a computer software dispute where one side had a terrible legal case. The other side's lawyers were pressing me to make clear to the other side in private session what an awful case they had. I never went near it. The other side that had the terrible case were competently advised, negotiations proceeded and the deal was done. I never had to go there. A right of way dispute where part is fixed on practical arrangements. The breach of Covenant case where parties negotiated a surrender of the lease. With parties legal cases you are treading carefully as an mediator. In reality testing, mediators are not there to advise, of course on the legal merits. But they can ask questions and discuss aspects of the case. And so this may result in a revision of the party's risk assessments. Where parties lawyers, where parties have their lawyers with them. Sometimes it's early in the case, and lawyers have not yet advised. Here an open discussion can often be held, looking at the possibilities. If the lawyers have advised, sometimes a party is prepared to discuss that advice with you sometimes up to a point or not at all. If there is a reticence to share information, fine, acknowledge it. But you can still look at the future of the litigation Of course, you can play with percentages. competent lawyers generally would not give a case more than a 70% chance, especially where there are disputed factual issues. So you can take a 70% chance of success as an illustration and discuss the realities of a 30% chance of losing the case. What does that look like? Some people say that would mean if you put that case in front of 10 judges, you would lose three times. And of course, if you were to lose, there would be adverse cost consequences and other financial implication to be looked at. One has the suspicion that many litigants start off being very happy with that risk. But during mediations, their appetite may grow less. In a book called Smart Choices by experts in decision analysis have Mandakini and Rafer.

 

The authors say this, some people make their decisions based on the most likely scenario, attempting to eliminate complexity by ignoring uncertainty altogether. without bothering to make a risk profile, they just assume that the most likely chain of events will occur, determine their best choice under those circumstances and pursue it. Effective decision making takes all viable possibilities into account. As a mediator, you're often told that the client party is likely to win has a better an even chance of success or something like that. The lawyer can be asked, Well, what are the chances of losing, they can be asked to give a percentage chance if they're prepared to and if they're not, a discussion can still take place. In my view, meaningful advice should be expressed in percentage terms as a figure or range in relation to each potential outcome. Imagine you're told that the case is in the 65 to 70% bracket of success. That is, most issues involve more than one base cases involve more than one issue having to be resolved in favour of a claimant or a defendant. Imagine you have a damages claim for breach of contract. The claimant has to win imagine on four issues, the facts first second, did the language of the contract require the defendant to do what the claimant says? Third, if so what loss was caused by the breach? And four is the nos excluded by an exclusion clause? So the mediator can ask, Well, how is this 65 to 70% arrived at

 

if causes their independence, it may be right to multiply them the so called multiplication rule that will produce an overall percentage of much less than 65 to 70%. So there we have a possible discussion about what the forecast actually means. There might also be a discussion about the damages if a million pounds is claimed, are the prospects of recovering 1 million the same as recovering half a million, or does the forecast have to be refined again. Decision trees and data analysis are sometimes used by lawyers to advise their clients and in mediations. There's also outcome prediction software available in the market. Those advising defendants are often keen to stress the number of issues on which a claimant has to win in order to succeed. Using the multiplication rule, they say that the claimant has to succeed on several issues, the combined probability is being less than 50% But not all causes are independent. The multiplication rule would not apply if the causes are connected. The fact that there's been a breach of contract and also a loss may mean that the causes are connected. But also in chopping up the various issues, it's possible to lose sight of the whole. Which brings us to the next topic of how judges make decisions. I see So Peter Cresswell has registered for the webinar. And no doubt he can tell us what this is all about. But here's my take, from my experience, the overall merits of a case often matter very much. And in discussing this with other lawyers, it has been their experience too. There are a couple of quotes from former judges that you may be familiar with, but some of you may not be. And I'd like to mention the late sir john Donaldson master the roll said this in a lecture. It was always said of Lord Denning, that he claimed to decide intuitively, what should be the outcome of a case and then go on to analyse the law in such a way as to justify his intuitive decision. Of course, he was wrong to say that quite wrong. Most of us do exactly that. But we would not dream of saying so. And law brown Wilkinson said this in a lecture he gave on the domestic human rights legislation.

 

When I was first made a judge, a wily old judge advise me, just remember, Nick, dirty dogs don't win. That is a principle which lies at the heart of the common law. It's the basis on which the overwhelming majority of cases are decided. The judge looks for what are called the merits, and having found them seeks to reach a result consistent with legal reasoning, whereby the deserving win and the undeserving lose. Unfortunately, this judicial method is seldom reflected in judicial behaviour, or in the reasons given by the judges for their decisions. When we get to the judgement, we very seldom find any reference to the merits. The articulated reasoning purports to be based on a process of compelling legal argument, leading inexorably to the result achieved. So what does this mean for reality testing parties as a mediator, the mediator is in some ways in the position of a judge, given the papers on the day before the trial, of course, they only get some of the many documents a judge will receive. The mediator isn't advising or predicting outcomes. But the mediator can share a reaction or a possible reaction with parties while not losing impartiality. For example, in a recent mediation, I had a private discussion about how a court might be influenced by the way in which the contract had been terminated. Might a judge I asked think that the defendant had not been given a sufficient chance to respond to the allegations of breach before the contract was terminated. I emphasise that I wasn't suggesting this had happened. But was it possible? I now turn to how all outcome forecasting sits with the other issues in the dispute. What is its relative importance? bearing in mind the practical and commercial issues in play? Of course, the answer is it all depends. In some cases, the legal merits are decisive. And I would say of the ones that I've mediated these are the minority of cases.

 

But are the legal merits over emphasised by lawyers. in discussions with the mediator my experiences they often are, I recall one case, a private session with board members of a company, their solicitor and barrister, the barrister aggressively declared that an offer of X was the maximum the company should make, given its high prospects of success in the litigation. My reaction was to say that I understood that this was the legal advice, but my sense was that it didn't address the commercial risks for the company. in pursuing the litigation, we discussed the risks and a more realistic offer was put forward. In another case, the party's offers got stuck at extreme ends based on their views of the litigation. An 11th hour offer broke the impasse and it showed clearly how commercial realities can be decisive. parties can get stuck on forecasts, but you can help them take claimants looking to recover money. The example of a 1 million pound claim like anything else, this claim is an asset. And the asset has a value the defendant does not have I would might tell the litigants you're 1 million pounds in the other room. Your Claim isn't like the building across the road. Your claim is our right to go to court and pursue that claim to judgement. as low as we know, this asset is called a shows in action. So what is the value of this asset? Take a claim said to have a 70% chance of success. It may well be fair to multiply those prospects as a percentage against the 1 million pounds. Price in recoverable costs, the chance of losing and wasted time or opportunity cost a premium for certainty. And the actual value of the claim may be much less than appears. And sometimes that's a helpful way of getting parties lay people away from fixing on numbers that are in their lawyers documents. where both sides say that they have an arguable case the practicalities generally take over in my experience. One dispute I mediated was a contract case between a music publisher and a songwriter and performer.

 

The publisher have been paying the writer and performer money for more than 10 years under the agreement. And he hadn't written a single hit song. But one day he did not just one but several. He co wrote them with another writer. The song went into the charts, he got a recording deal, and a major record cut with a major record company and a worldwide tour. The publisher sell the rights to a large international music publisher or what was the problem. The problem was that the writers lawyers advised that the agreement was unenforceable between the writer and the original publisher. A mediation was convened between all three parties, it went on all day and all night. The result was a renegotiated publishing deal signed at 5:30am. The writer left for Japan that afternoon to do the tour and the mediator went to bed. How should a forecast beef combined with other considerations, parties will sometimes have worked out their BATNA before coming to mediation the best alternative to a negotiated settlement for a claimant this will reflect what it would recover if the case succeeded. Less irrecoverable legal costs and maybe other case related considerations. a claimant may then work out it's what are its worst alternative to a negotiated agreement. That's if they were to lose in court and then calculate their bottom line settlement figure based on prospects of success. That's fine as far as it goes. And of course, the non legal factors have to be priced in to I'm not sure that the decision making around settlement is always all that it could be.

 

There are many decision making tools available from the commercial arena. And one is known as the T chart. Essentially a list of pros and cons of waiting of factors that enables a balanced judgement to be made. Its origin lies in a famous letter written by Benjamin Franklin to Joseph Priestley in 1772. Franklin wrote this in the first part of his letter, dear sir, in the affair of so much importance to you, wherein you ask my advice, I cannot advise you what to do determine, but if you please, I will tell you how. When these difficult cases occur, they are difficult chiefly because while we have them under consideration, all the reasons pro and con are not present to the mind at the same time. But sometimes one set present themselves and other times another, the first being out of sight. Hence, the various purposes or inclinations that alternately prevail, and the uncertainly to that perplexes. us and then he went on to set up his approach. Structured decision making is critical in deciding whether to settle a case or fight it. Not only the legal risks, but the practical and commercial risks should all be measured considered and a balance struck between them. litigants should have a dispute strategy and of course, they generally do. key factors in any analysing analysis include to identify each potential outcome legal and practical or commercial. If you like. percentage chances of each outcome occurring, the consequences of each outcome, whether the consequence would be a pro or a con for the dispute strategy, and a method of weighting the consequences and percentages. A final factor to bear in mind is decision making bias. One a particular interest is that people are often risk seeking when confronted with a loss.

 

Faced with a certain prospect of losing $900 or a 90% chance of losing $1,000. Studies have shown that most will choose the latter. See can manage diversity is Thinking Fast and Slow. And studies in the field of us litigation have shown how risk seeking defendants can be refusing settlement offers that precede trial outcomes where the outcomes are many times worse than the office. Studies in behavioural economics also show that people become non rational in competitive bidding, the higher the stakes, the analogy with litigation is all too obvious as the costs increase. So that is my review of forecasting and mediation for today. Looking back on these past 16 years of mediation, mediation has taken me into many corners of life. Not only business matters, but the Private Lives of members of the public, including public figures. In no particular order. These examples, timber imports, pop songs, films, ball bearings, lifts, cartoons, football clubs, ice skating, land development, family trusts, it agreements, internet sale platforms, leases, joint ventures power plants, property insurance. Sikh temples, share sales, contaminated horse feed, employee covenants, healthcare trusts, barristers fees, defamation, from racial slurs, flying schools, credit card payment services, game parks in South Africa, the sale of broadcasting businesses, motorbike distribution, image rights, academic publications, land disputes between members of the traveller community, data protection and privacy. I have hugely enjoyed the disputes I've mediated the complexity of the commercial disputes, their architecture, and the ways of solving the puzzle they present. Helping parties be they companies, legal partnerships, or individuals can be very satisfying, and also immensely frustrating. As we know, mediation calls for huge reservoirs of patients from a mediator. But what really makes it for me are the people, those who have roles to play in the businesses, each has their particular angle, to be understood and blended into the outcome, whether a settlement or not. It is where individuals have been litigants that I have felt the most professional satisfaction.

 

As we know litigation can dramatically affect people's lives. And it's often preceded by serious events, the commercial break down of a school, a disclosure of personal data, a falling out among family members. But when the protagonists can choose an outcome that ends the dispute by settlement, I feel delight in the relief that they may feel. Two years ago, I did a mediation about a life changing disclosure of confidential information. The claimants life had been up ended as a result, the claimant had her husband travelled to the offices of a city firm with their lawyer. And the whole thing was very unfamiliar to them. It was agreed that the claimant would be paid a six figure sum at the end of the day, and the settlement agreement was signed. I was about to leave. And the claimants husband walked up to me and thanked me. He told me how much their lives have changed because of what had happened. And then we talked about how misfortune can sometimes create opportunities. He said to me, I used to be a simple builder before all this happened. And now I run this building company. I never knew that I had it in me to do this. Those for me are the magic moments. Thank you. Thank you, Steven. That was fantastic. Steven, with typical modesty did mention his book, which I'll put up resolving business disputes. It's it's about good reason. Obviously a lot of the material in the teach shared with us is shared with us is in there. First thing we should probably pick up is the results of the of the two poll questions. And the first one is that with about 60% of the 100 of you on the call responding 89% of you thought that encountered people who thought that they that they thought that they were going to win. And then the answer to poll question two was actually 61% of you said that they actually believe that. So it's probably that kind of bears out what what Steven has to say. So, I thought we might try and open it up to the meeting. And if you'd like to raise your hand, Martin will, will unmute you. And this is not an opportunity for people to grandstand, but to ask questions or make useful observations. So, Martin looks like Chris Megan's got his hand up, Chris. In fact, Julian Whiting is first up. Okay, good. Julian, where are you? Oh, here. Hello. Okay.

 

Brilliant. Steven. compassion, love thoughts. Great. Just wanted to clarify, is that a sight screen between behind you because we play cricket together? That's the first thing. And secondly, just for the just the the item? Did lawyers and judges ask these days like they used to in personal injury cases? What efforts? have both sides made to settle this matter before me? Is that still a common thing for judges to raise?

 

Either, as I said, I don't do court work very much anymore, if at all. But I hear that they do. They did have been starting to do that when I stopped at the bar. And I hear that reported to me by party. So I'm pretty sure that very much goes on.

 

Thank you. Just the last bit I just wanted to say, to be understood and blended into the outcome. Fantastic. I think that will send a lovely ripple through your community. So thanks so much, David. Brilliant. Okay. Thanks, Jenny. Chris, over to you. peacemaking, thank you. Oh, yeah. There we go. Go ahead.

 

brief comment. What I've often found in mediations is that on the rare occasions when the parties failed to settle, is because each side believes that they are being perfectly reasonable on their interpretation of the case. And it can be useful to nip that in the bud. In preparation for the mediation, I send out what I call a confidential checklist, where ask the parties to write out the strengths of their case, etc. But then to pretend to be the other party and try to work out what the other side where the other side is coming from, on the basis that either party may think of a watertight case. So we must question why it is that the other party is in the next room at all, because they must have a point of view as well. So trying to get into the head of the other side can be very useful in mediation to find. Yes, David, do you want to comment on that?

 

I think that's a great tool to use and ways of unpacking the problem that I was talking about the problem of Two Worlds. Is is I think itself an interesting area for development in mediator practice. And Chris, I think that's a really good tool to try and look at that problem. Well, if anybody wants a copy of my confidential checklist, I'm relaxed, just let me know.

 

Okay. Thank you so much, Chris. And I think Martin Susan bloom is up next, Susan, go ahead.

 

No, thank you. I couldn't raise my hand except like this. All right. Go ahead.

 

I'm a non lawyer mediator, trained with the wonderful late Paul Matt Randolph and Monica hanaway and others at regents college. I'm a psychologist and a management consultant by background and a coach. And one of the things that I've found very important is the need for emotional resilience in life anyway, but particularly when conducting mediations what would you say the balance of probabilities would be in your experience and thank you for your very insightful talk on that overtaking almost everything else, that ability to be resilient to whatever but buffets you whilst you before you come to the mediation, and then when you're in the mediation.

 

I think it's terribly important. And I think and I think there's a there's a prior problem With that, which is to get participants to acknowledge, in whatever way is appropriate that that is an that that is a factor and an important factor in what's going on. Because so many times, parties in commercial disputes will say, Oh, it's, it's not about emotions or anything like that. It's all about the money. It's about, they owe us this and they haven't affected behave fairly, and so on and so forth. But I know and I smoked, many of us here know that underneath it all, there is emotion raging, in some cases, and if not raging, certainly present and relevant, where others are contributing to the picture. And so reading or trying to read what's going on, and managing it is very important. And I think particularly, when negotiations get going, I try and get parties to hold their breath and not get carried away with the whole process and dance of it. And, and to take their time. Because we all know that much of the real work in the mediation happens in can happen in a very short space of time. And I try and tell parents, listen, this is really, really important. So don't rush it. I know, it's been a long day, but we've got to take our time. So I try and give them that kind of message, too. Thank you.

 

Thank you, Steven, do we have any other hands up at the moment to want to make make a comment or Okay, Dave? Go ahead,

 

Stephen. I found that very few people know, call parties know anything about parts 36 offers until it may be raised on the day. If you are finding something is intractable, to what extent you do try and get people to to contemplate the part 36 offer that they might make subsequently, but actually put it on the table that that day during the mediation

 

was certainly I have discussions where things get stuck. And I would might say to a party. Well, I imagine that given where we are, you might want to you might be putting a part 36 offer on the table. I mean, there's obviously where solicitors are present, lawyers are present. And that doesn't necessarily mean the end of the might, the mediation may have come to an end if the thing doesn't work on the day, but it may well be that the that that you've cracked much of the problem, you don't know it rather like Dambusters, all the balls go into the damn wall. But actually the dam was about to break. And but it doesn't quite break on the day, but it breaks a few days later. And that can be very helpful.

 

I'm specifically thinking about a mediation. One of my very early observations and 12 hours in I raised the question of part 36 is none of the parties neither of the parties knew anything about them. So having been advised about them by their legal representatives, we got to a point where one party so this is the part 36 I'm going to issue tomorrow or Monday. which is which is a better or sorry, less advantageous to the other party. Then what is on the table now. So if you take what's on the table now, you'll do better and that actually broke the broke the impasse. Now, very interesting now.

 

Okay, thanks, Dave. Anybody else up at the moment, Martin? Roger Levitt, we'd like to speak. Roger, go ahead.

 

Thank you, Steven, that was really, really interesting. I wonder whether you've got any tips for this particular issue that's come up for me in a recent mediation, because I'm surprised it's it's gone. This far not found it happened before. One of the solicitors just hasn't engaged at all. He hasn't engaged in the pre mediation literature that I send out a bit like Chris, pre mediation, zoom meeting. He doesn't respond to emails, text messages. And he did attend the mediation, although he arrived about half an hour late, which was very, very impressive. And he was convinced that his they had a very strong case, although with reality testing if he was prepared if he had been prepared to undergo reality testing, I think would have given him a completely different impression. And, and so it didn't serve for and after the mediation, I staying in touch and Again, he doesn't, he doesn't engage. So, two to two and a half weeks after the mediation now I've I've accepted that. That's a he's not, he's not gonna respond, and the other side are gonna have to issue proceedings if they if they choose to. Yeah.

 

I mean, it's difficult obviously to say which one would need to talk a bit more about the specifics of it and see how because I suspect is quite granular how one would specifically react to what he was not doing. But my take on it would be to, to be quite honest, which has I'm sure what you've done, Roger, is to be pretty proactive around his non engagement. And and how I would have drawn him out, I don't know, it might have ended up in a terrible route, but but my instinct would be to really challenge that non engagement as as appropriately as one could and as rigorously as one could.

 

Hmm. I mean, he he, he shows all the signs of being a solicitor who is, is heading for negligence claims if he hasn't already had them. Yeah. You know, obviously, I, I can't, I can't alter that myself if he if he chooses not to engage. Yeah. Okay. Thanks. Sorry. Go ahead.

 

I only I mean, on the day I imagined you would Did you try and have conversations with him about the I'm going to win line?

 

Yeah. But absolutely. He was completely convinced that he had a powerful case. And he wasn't, he wasn't to be dissuaded.

 

So. So I mean, there's a whole number of considerations that I raised in this talk, you can put models to somebody like that, of course, they weren't listened necessarily. But even on a 70% case, that it's still there are still all sorts of issues. And it's ultimately for the client to decide has the client has the client had a chance to digest all this with the practicalities for them, and implications for them of carrying on all the way when I remember a case was very, very stark, where the client came out. Look, locked me out between meetings and said to me, Steven, this case cannot go to court. And I said to him, Look, Jeff, the way this works is, you are the client. Here's your lawyer, and you tell him what to do. And the solicitor had run away with the litigation spent, I mean, hundreds of 1000s of pounds, and the case, barely got to witness statements. And it was just a very stark example of the lawyer taking over.

 

Yeah, that's that's a really interesting point, isn't it? That I had one recently, which was a family business dispute where the lawyer really that you know that, you know, I always say to people, parties, well, sometimes the clients wind up the lawyers, sometimes the lawyers wind up the clients and somebody, sometimes people wind up everybody winds everybody up. But this was this was really, really difficult, where the lawyer was really running it for the the law firm for it was difficult to see why this particular law firm was doing it because it didn't seem to be any gain for them in doing it that way. Okay, so it's 953. Do we have any other any other? Anybody else who needs it, Chris? Well, Peter, go ahead. He needs to unmute Michael. Does he? You can't unmute him, asked him to.

 

There you go. Steven, thank you for first class presentation. The parties often think that the justice system is perfect. I say in mediations, the justice system is not perfect, and does not deliver the same result in every case. If you if you think about it, why do we have an appeal system, if we're going to get a first class consistent result at first instance, there are many cases where you get a different result at first instance, in the court of appeal, and the Supreme Court. So I think it's helpful to say two parties. If you go to the court, do not expect one consistent result from every judge. There are cases where the same facts were put before 10 judges with the same legal issues, those judges would arrive at different conclusions. It'd be interesting to conduct some research whereby you had 10, judges independently watching the same facts, the same submissions the same dispute and also write separate judgments that would show that you didn't get the perfect answer.

 

Thanks, Peter. Any any thoughts on that, Stephen? Mark, just

 

a very, very interesting and a great, great trial to do. And I think in in some of the American literature, they've that sort of exercise has been done. I can't remember exactly. It has been done with judges, but it's been done with law students, and so on and so forth. And it where you have one set of results is where the each side is given the brief for one or other party, and you get completely different pictures. And the other exercises along the lines that subito was just mentioning just now of of comparisons, but I think it was it was a bit different.

 

Okay, thanks him. We got Mark Matterson. Up next mark, go ahead, if you're unmuted. Just got to find him in this big audience. Good.

 

presentation, I just wanted to share something with you when some technique I use sometimes in terms of drawing on past experiences, when in private with parties, I'm trying to explain the risks to them. So this is the story of a case I had where it was a breach of fiduciary duty claim. And in private with the claimants, I was saying, isn't there a danger here that the judge might take the view that these breaches are technical and not particularly serious isn't the risk, you know, he's not going to find it sufficiently serious to find in your favour. And I was telling Marty soon, you're talking rubbish, I got terrible feedback, similar feedback to Cedar I'd ever had. And then not the last, it was all quiet. And then two and a half years later, I saw the decision of a Court of Appeal case where the claimant had lost at first instance, had gone to the court of appeal, he lost to the court of appeal. And so I sometimes in mediations will say to parties when I'm discussing risk, I had this experience. And this is what happened, you know, I didn't do anything about it. So you never know. And it just it's a backup in terms of the reality testing a little technique I will sometimes use. Yeah. Thanks. Any, any thoughts on that seem?

 

Very, very interesting. And of course, very useful. And I use, I can't remember what examples I use. But I mean, I use examples like that, that sort of thing, too. Because what we're trying to do is, is to get through to the lake to the lay party.

 

Yeah, that's I mean, that's commercial. Yeah, that's right. And of course, one has to do that without offending the law is too much, because they're the people who give us the work because they tend still to be the main gatekeepers. Do we have any other? Anybody else? bursting to say anything? Dave? Go ahead.

 

Ah, I'm not sure if I'm bursting to say this. But I often find that people are all parties. So what would you do to the mediator? How would you respond to that?

 

I find it enough. I've never been asked that question. And I would, I would basically throw it back at them. I would try. And what I try and do my reaction is I would try and go through a set of questions with them, so that they answer their own question.

 

Yeah, good, good. We're putting it. Okay. Well, we've got to just about 10 o'clock. What we were proposing to do was, I'll ask Dave, to give a vote of thanks in a minute. And then we'll leave the we've got 91 people on at the moment. So we had a maximum of 100. So really brilliant turnout, and probably people from all over the world as well. So absolutely fantastic. And then we'll leave the meeting open maybe for about 15 minutes. So if people want to network and chat, they can they can do that. But please don't all try and talk at once. So, Dave, over to you for a vote of thanks to Stephen.

 

Thank you, Michael. There have been several posts even which I'm sure you won't have had a chance to see. But everybody's has really enjoyed your thought provoking discussion today. So commend commend your book if anybody hasn't yet bought it. And thank you very much indeed.

 

Okay, thank you very much. So, if people want to chat, we'll leave the meeting open for 15 minutes or so, Martin, I think you'd probably unmute people. But please don't all talk at once, as we still got 80 odd people on the call. So does anybody want to have a bit of a chat? Please? Go ahead, Michael. Justice, just to remind people, Oh, yes. next meeting and stuff. Yeah.

 

The January meeting should be on the second or third Wednesday. So if you could pencil both those dates in your diary, and I'll send seven rounds, an email as soon as we've got the date settled.

 

Okay, that's great. Thanks. Thanks, Dave. So, but if like to mute everybody, then we can all have a chat, the remaining 70 odd people who are still on the call. Stephen, I was just going to say that You once told me that you had a mediation where if it hadn't been resolved at mediation, it would have been resolved by sawn off shotguns or, or kind of chalet leads or whatever.

 

Yeah, I can't remember which one, which one that might be I had a recent colourful one, which did involve a background of guns. Members of the traveller community. Yeah, well, it was a dispute over land that had been bought. And nothing's put in writing. But there was a transfer and none of the arrangements were put in writing. And of course, there were arguments about who owns what, and then bits were sold on and so forth. And there was a lot of ill feeling. Yeah. And a lot of things happened before it came to mediation.

 

Yeah. The other observation I was going to make, which is a point I hadn't really thought of before, is that some parties, particularly if the individuals enjoy risk, you know, I think that was a point that you mentioned, they kind of they like, even though they're, you know, maybe, you know, disputes are our core business, or the, or the business core business, and most of us here, but they're not of the average business person. And yet, sometimes they really get into it, and they, they enjoy it, and they enjoy the excitement and the risk.

 

And quiet. And, of course, business people are used to risk and they're comfortable with it. Yeah. A lot of what they do their bread and butter is, is forecasting, risk taking. It's land territory that they know Well, yeah.

 

Where one party ordered me to go into the other room and say to them, the name of the Hitman then turn to use matches did. Of course, I had to wind up the mediation. It was quite hopeless. And I couldn't tell you the party why I'm here. Yeah. perfectly reasonable all afternoon.

 

Yeah. Stephen? Yes. Hi, it's Mickey Harris here. I just wanted to ask you a question. Just because your insight might be very useful. Okay. When you're when you're looking at percentages and wins and losses, how do you decide we talked about judges intuition? Who is most likely to be the party who will be first to compromise? And do you have any rules about how you gauge that?

 

So making what I've just heard, because there was an interruption, I think was, how do I work out which party is first to compromise? And that Do you have any rules around that?

 

Yeah, would be most likely to most intuition before.

 

Yeah, I may have an intuition of where that might be. But it wouldn't overly influence where I would start, if I thought that that party might make a really realistic first offer. I might start with them depending on the context, because as I think no, making a realistic first offer is much more powerful than making some fairly derisory offer because it just encourages the mirror. image of offer

 

is based on how you feel during the session.

 

Definitely. But I mean, I'm always looking for a realistic. So if they're a candidate for it, then it's obviously a good place to start thinking, but there obviously be a context. They may have made earlier offers and it may not be them to go. Okay, thank you. Interesting. So anybody else want to chip in? On your I think you go ahead.

 

Steven, thank you so much such an interesting talk. I was wondering how you might address the situation where litigation has proceeded for some time, based on one lawyers, over optimistic view, perhaps of the merits of the lawyer realises that he or she has allowed the client to come down this expensive path. And perhaps the cage isn't as strong as he or she thought originally. But obviously, he is in a difficult position, because he doesn't want to appear to back down and say, Well, actually, I got it wrong from the start. How would you address that? As between lawyer and client? And as Michael said earlier, not wishing to undermine the bows feeders?

 

reaction is I? I would, I would, I would be wanting to have a private discussion with a lawyer to see exactly what had happened. And if if the if the position were that he came to the conclusion, he might have been negligent in what he'd done, if it had gone into bed. I don't know if it's one of those cases where it might be as as bad as that. Is that

 

fair? Well, not necessarily negative, but perhaps over enthusiastic or perhaps documents were later shown here, which caused him to have a rethink? Well, I mean, my

 

reaction is that I would, I would encourage him to, to tell his client that that is where he now is. I mean, his duty to his client, his duty to his client is to, is to give them informed advice. And that's a continuing obligation. And if if there's a problem around that, we'll have to rethink. They're not prepared to do that simply because of what reaction it might bring. I would strongly encourage them, not to duck away from their obligations, because it will make a real problem for the mediation because the client can't have an informed risk assessment, because that is that's potentially another breach of duty, or a breach of duty itself. And I would, I would hope that a discussion would lead to a way of the client being able to have a private session without me with the lawyer. So matters can be brought up to date.

 

Yeah, that's much. Yeah, that's a great point. Also, just picking up the point about part 36 offers wonder what people's experiences are of them? Probably don't see them as often one doesn't see them as often as one should. And often, they're only thought about after the mediation, interestingly. And I suppose that also goes to how well our parties generally how, how well, a party is prepared, and have they thought about their what's likely to happen on the day that Best Worst outcomes and all the rest of it is you mentioned, Stephen, and certainly my experience of judging in mediation competitions, including the ICC in Paris, is that because the student parties, there are actually a few marks for working out those things in advance. They tend to be better prepared than parties and real mediations. Everybody, anybody else has got any thoughts on that one? That seems to reduce everybody to silence.

 

I find. I will. It's very infrequent, though that prior to the mediation, the lawyer has told the party the percentage chances of success and unless that question is posed on the day, that's that's only where the real bargaining starts. When people when the parties appreciate how much risk is there still running?

 

Yeah. Okay, well, I'm just wondering what we might now draw this to a close We still had 42 minutes or 42 people on. So thank you again for your attention. Steven, I think we can let you go. Now. That was a great session, universally positive feedback and all very thought provoking. So I just cannot just mention which fire call immediately. Sorry, somebody is fiddling with their keyboard. Can they stop it, please? Sorry. Thank you. Yeah, go ahead. Yeah.

 

procmon on radio four on the wireless yesterday about five, immediately after the Great Fire. And it was very interesting, because basically, what it was saying was, was that the judges were acting effectively as mediators for the first time, really in history, because you had lots of disputes between occupiers tenants and owners as to who was responsible for rebuilding.

 

Okay, it was a really it was the long view conducted, right? Yes. breeland It's really you, you'll get it on. I play. It was really useful. Yeah, it was really interesting.

 

Okay, well, thanks again. Thank you again, everybody. Thank you, Stephen. Thank you, Dave. And I wish you all a great day and stay safe and well and COVID-19 free. Thank you.