3 tips for successful mediation

27 January 2017

My first tip for successful mediation goes right back to the earliest meetings between lawyer and client: manage expectation. All litigators know the importance of this, of course, and generally pursue a Project Fear of costs, unsatisfied judgments and wayward witnesses.

3 tips for successful mediation Slicing the pie : Different issues? Risks of that kind will make mean more to someone who has been through the mangle before, however. Lawyers sometimes lay too little stress on a risk that is obvious to them, but comes as something of a surprise, not to say shock, to a lay client with no experience of litigation. I believe you, but the judge may not. Without straight talking few lay clients really get to grips with the possibility that they can have a sound legal case, tell the truth but still lose.

In my own cases I often tell the story of an extremely experienced personal-injury QC who came to grief in the early 1980s. He was offered £800,000 on behalf of a motorcyclist with catastrophic injuries. Liability looked so straightforward that the insurers were looking only to reduce the damages for contributory negligence. The QC advised rejection: the claim was worth £1m – in the days when claims of that size were extremely rare – and the motorcyclist’s share of the blame could not be more than a fifth.

The Silk would have been right, had he not lost outright. Contributory negligence proved not to be the problem. The judge simply disbelieved the motorcyclist’s apparently straightforward account of the accident. In those far-off days it was normal practice to deny liability altogether even where the only real issue was contributory negligence, so the judge was able to dismiss the claim completely, leaving a severely disabled young man to face a lifetime on benefits alone. A number of my own cases have settled soon after telling that story.

The second tip stems from the first. It aims both to manage expectation and to make the process of negotiation more likely to succeed.

The hardest dispute to settle by negotiation is the tug-of-war. There is a single issue; usually how much one party is to pay the other. If one party pulls harder and gains £20,000 more, the other party is left with £20,000 less: Project Fear apart, what incentive does the paying party have to make concessions? He gains nothing.

A number of techniques for overcoming this obstacle are well known. The best known often goes by the name of enlarging the pie (or the cake). The mediator or the parties add to the mix an issue that is strictly speaking irrelevant to the dispute, so that the paying party obtains something for his extra £20,000. We will pay you an extra £20,000 as long as we can stay on your list of preferred suppliers, for example. We will pay you an extra £20,000 if our visitors can park on that bit of land you don’t use by the shed. We’ll take £20,000 less than we think our claim is worth if the doctor apologies personally for his mistake.

Enlarging the pie works because the party who makes the concession becomes thereby a winner. He loses something he would rather have kept – £20,000, in my examples – but at the same time gains something he very much wants – the chance to keep a good customer, a parking space, an apology.

Enlarging the pie works like magic to free up stalled negotiations, but some pies or cakes cannot be enlarged. An apparently intractable tug-of-war sometimes responds instead to a technique that looks at first sight to be precisely the opposite of enlarging the pie: slicing the pie. Break up what looks like a single issue into a number of smaller disputes and negotiation can begin on the only premise that is ever going to work, namely that everyone wins something.

No dispute looks more like a tug-of-war than union-led pay negotiations. We want more money for our members / You are not getting another penny from us. Strike or lockout – a trial of strength which the stronger party is bound to win: or is it?

Commercial disputes may be less public, but can be equally brutal. You owe us £100,000: pay up or we’ll sue / Bring it on, little man: we’re fed to the back teeth with you and you haven’t got the bottle. Again, it looks like a trial of strength.

In either case slicing may offer a way forward. Negotiations in the United States between two police forces and their police authorities show the way. Both negotiations had reached deadlock: the police wanted more money and the authority was refusing to pay a cent.

The breakthrough came from realising that the underlying complaint was a lack of reward for the loyal rank-and-file who would never be promoted lieutenant or even sergeant, but had nevertheless given long and efficient service. On that basis the claim for an increase across the board was split into a number of claims for different lengths and categories of service. The police authorities were immediately amenable to rewarding loyal service rather than mere presence on the payroll and the negotiations thawed.

Once the deadlock had been broken, enlarging the pie proved possible. The parties agreed the creation of an intermediate rank of corporal at a higher rate of pay. The police were happy, because the new rank offered higher pay and status for efficient long-serving officers; the authority was happy, because the new rank would free the even more expensive sergeants from some of their more routine duties.

In the end everyone won to some extent. The thaw would never have come, however, without the imagination to see a single, frozen issue as a series of issues on some of which (but not of course all of which) each party could claim a win.

The last tip is best suited for the mediation day itself, though it can be adapted to any negotiation. It is sometimes called the Dance.

For each issue he has identified the mediator draws a Cartesian chart. The x-axis represents time on the mediation day; the y-axis the range of possible outcomes on that issue.

Where the scale of the y-axis allows, more than one issue can be combined in a single chart – and for psychological effect, the more the better. Two six-figure money issues can be easily plotted together. Apples and pears, on the other hand, cannot: if one dispute is measured in money between £50,000 and £150,000, for example, but the other between 0 and 10 in the years of a contract, two separate charts will be needed.

The charts can be displayed on the mediator’s laptop, of course, but they are probably more effective as paper documents left lying on the parties’ tables, and so constantly visible, throughout the day. Either way the mediator should have several spares with a blank y-axis to accommodate any new issues that arise during the day.

Using two colours, at the start of the day the mediator plots each party’s opening position. As negotiations progress, the two positions should ‘dance’ closer together until they embrace.

The psychological effect of this is fourfold. It emphasises that the time for talking is limited. Second, it reminds the parties that several issues are on the dance-floor: a step back in one may be more than matched by a step forward in another. Third, it is a visible record of progress (or stasis). And above all it heads off the parties’ maddening tendency to keep harking back to their starting-point; it aims to consign to history everything before the latest plot, so the parties can concentrate on the real and (one hopes) steadily narrowing gap between them.

These techniques really do work – because everyone’s a winner! Slice the cake, enlarge the pie and enjoy the Dance!

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