Mediating styles

6.3.1 Although there was considerable individual variation in style among mediators, it was possible to identify certain broad prevailing approaches to the business of mediation. First was the ‘counselling/therapeutic’ approach which was characteristic of some non-lawyer mediators. This involved focusing on encouraging communication between the parties and seeking to achieve reconciliation. Mediators who favoured this approach tended to be the most non-directive and the least evaluative. The rhythm of these mediations was relaxed, even slow and the mediators would expend effort in establishing rapport, gaining the confidence of the parties and seeking to improve the information flow between the parties. There was an emphasis on feelings, on acknowledgement of grievance and of counselling parties to think about solutions. Inevitably, legal considerations were unimportant in this approach and some non-lawyer mediators were at pains to stress their lack of legal knowledge. On the whole, this approach was least well suited to the types of disputes, the types of parties and the expectations of parties in the mediations in the CLCC. It occasionally led to frustration and to the accusation that the mediators had allowed the mediation to drift.

“I think when you are dealing with commercial dealings I think you can grab it by the throat. When you are dealing with emotions – things like divorce proceedings, personal problems, that might be a bit different and need a different approach. I think when you are just dealing with hard facts like commecialism and money and what’s the bottom line, I think businessmen just want to reach some sort of a compromise if there is one and for a mediator to take the bull by the horns and give his opinion. I did expect when I came that there would be a more positive approach rather than being left to make the decision yourself.”

6.3.2 Dissatisfaction with the therapeutic approach was not only expressed by business litigants. Many of the mediations involved individual litigants and, like business people, by the time that individuals have issued their proceedings or entered their defence they have formulated their arguments and position in the language of

legal rights and responsibilities. Although they may be interested in achieving a resolution through a problem-solving approach they often demand an acknowledgement and understanding of the legal issues which establish starting and finishing points. Moreover, since some costly and traumatic hypothetical trial is often used by mediators to increase the pressure to settle, it is possibly a little unrealistic to expect parties completely to abandon consideration of, and conversation about, what they see as their legal position.

6.3.3 The second broad approach to mediation was the bargaining approach. This approach emphasised the important of achieving settlement, tended to focus on the commercial realities of litigation and the disadvantages of continuing with the dispute. This was by far the dominant approach in the mediations observed at the CLCC but there was a spectrum of styles within this approach ranging from ‘cool authority’ to ‘scruff of the neck head-banging’. Most mediators, although often modifying their own behaviour, naturally fell towards one or other end of this particular spectrum. The cool authoritative approach tended to work best when the mediator was very experienced, had a natural authority, was knowledgeable about the relevant area of law an managed to convey familiarity with the facts of the case. Some of the best proponents of this style were barristers who were very adaptable and quick-witted. Mediators of this breed use charm, apparent sympathy and expert knowledge to gain the confidence of parties and legal representatives. Many of these, however, were most willing to cross the line between probing strengths and weaknesses of the parties’ cases, to communicating subtly or even directly their own view of the parties’ chances of succeeding at trial. When these types of mediators had established their authority, the communication of such a view would often be highly influential in achieving settlement. A danger, however, is that the view if formed rapidly and often on the basis of meagre information.

6.3.4 The following exchange, from the late stages of a mediation about a breach of contract, is an example of a mediator of the expert/authoritative variety, offering a view on the strengths of the plaintiff’s position in order to achieve movement in negotiations after quite a long sticking point. The mediator in this case had formed a

view early on that the plaintiff’s case was less strong than he thought and that he was being particularly intransigent. In the extract it can be seen that the mediator clearly advises the plaintiff that he is likely to have trouble in court. The plaintiff rapidly takes the point and even says “I bow to your advice”. He agrees to compromise.

Plaintiff He’s trying to play games with our offer and chisel at the sides. Mediator But you are trying to settle?

Plaintiff We are more than happy to defend the principle. Mediator But you have to consider the possibility of losing.

Plaintiff This isn’t about £20k in our pocket. We can easily get £20K back in our pocket.

Mediator But if you lose you will get a bloody nose. That doesn’t help the principle.

Plaintiff But it tells the marketplace you can’t make an agreement with us and walk away without a fight. Our stance is about much more than money.

Mediator Perhaps I need to be a little frank with you. It is far from clear that you would be able to divorce the later contract from the pattern of the earlier ones.