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 Why choose mediation rather than an RTM?

by Tony Allen

Many personal injury and clinical negligence claims are settled through round table meetings (RTMs) now. The mediator’s fee is saved, and the lawyers feel that they have retained control of the settlement process. RTMs usually take the form of lawyer-to-lawyer discussions, with their clients side-lined in another room, to whom the lawyers report and give advice to get their instructions. Joint meetings with all present are rare at RTMs. Why and when should you consider having a mediator for such cases?

How does a mediation differ from an RTM?

There are a number of important differences.The mediator manages the process, chairs joint meetings and is able to have private discussions with each party on a confidential basis throughout the process. Lawyers can concentrate on the important job of giving best advice to their client.

Everyone will normally attend at least one joint meeting run by the mediator, at which both parties (the decision-makers) and their lawyers will be able to say whatever they believe might influence the other party over the outcome of discussions. These take place in what is set up as a safe and confidential environment, with contributions unlimited by rules of evidence and not on oath. This really enables all parties (whether claimant or defendant) to have a valuable chance to have their say and to talk to the opposing decision-maker and advisory team in a kind of "day in court" that is so rare in the civil justice process or in other settlement processes like RTMs, let alone Part 36 procedure or court-door discussions.

For much of a typical mediation, each party and their legal team will be in their own private room and the mediator will shuttle between each room, discussing the messages that each party wants to give, testing out progress, conveying questions and answers (where given) and ultimately offers to settle, processing these with each party. At times the mediator will leave parties on their own to consider how to react to what they have heard.

If settlement terms emerge, the mediator will usually leave the lawyers to draft an appropriate settlement agreement or consent order, finally ensuring that it covers all areas hitherto in dispute, all agreed terms and checking it for workability and clarity. If settlement does not emerge, the mediator will almost always offer to follow up the discussions to see if further progress remains possible, once parties have gone away to reflect. Many disputes settle some days or even weeks after the mediations as a direct result of the mediation discussions and the mediator’s follow-up.

A mediator will always have an eye on non-monetary and non-legal remedies which may add value to settlement of civil proceedings.

What does a mediator add to settlement discussions?

Is your client the kind of person who would appreciate the opportunity to be fully involved in the discussions which might lead to settlement of their case? Will an RTM really provide such an opportunity? Or would it be better to use a semi-formal process run by a neutral who can make it as easy as possible for your client both to contribute and to hear what has to be heard to decide on whether settlement terms are acceptable? A mediator will take responsibility for the process off the shoulders of the lawyers and allow them to concentrate on advising on the merits and risks which need to be considered.

 A mediator will make it possible for each side’s client to play as full a role in their claim or defence as they wish and are advised to take. RTMs place each lawyer at the centre of the process, and joint meetings at which clients are present often do not take place. But cases belong to parties and not their lawyers, and some clients do not want to be excluded from the centre of their case. A mediator can help them to have a say in a protective environment, and to be able to hear what they may need to hear to assess their strengths and weaknesses. A mediator adds a very significant dimension to both information exchange and negotiation, by protecting each party from difficulties in disclosing their hand to their opponent. Face to face negotiations at RTMs often involve high demands and bluffing over what might really be acceptable. Reaction along the lines of "they would say that, wouldn’t they" are typical, and positions taken may well not be believed. With a mediator, messages can be conveyed indirectly and dispassionately with the authority that only comes from being a neutral, with the mediator giving guidance about what the other party might like to hear in response.

The mediator operates entirely neutrally as between the parties and can discuss matters privately with each team and give advice about what the other party might wish or need to hear in contemplating settlement, and then with their authority convey information, arguments and proposals between rooms. Arguments presented by a neutral will often have greater effect than those presented by an adversary in litigation.

An experienced mediator can also simulate what a judge does - by asking difficult questions from a neutral standpoint. The difference is that a mediator will only do this in private sessions with each party to help them test out the strength of their case, an cannot and will not compel an answer to be given, let alone to convey any answer to the opposing team without specific authority to do so. But it means that a proper testing out of each party’s case can be done, clarifying whether any settlement terms offered at the mediation are worth accepting or whether it is better to go on towards trial. When a judge asks an awkward question, this is done in open court in the presence of both sides, and such questions have to be answered.

A mediator is used to dealing with apparent deadlock and because of the work done in each room can suggest ways of breaking it. A mediator can often persuade parties to keep trying to seek for settlement when they are tempted to give up and walk out, helping parties to close what seem to be intractable gaps. Mediation has a very high success rate, especially in personal injury and clinical negligence claims, and related professional indemnity claims, often attributable to the efforts of the mediator to keep parties trying to make progress.

Differences in legal status between mediations and RTMs

Mediations are always conducted within a confidential contractual framework, created by each party and the mediator signing a formal written mediation agreement to ensure a more secure environment for discussion than mere "without prejudice" privilege can offer on its own. Parties formally contract to treat what happens at the mediation as confidential, and courts have held that this extends the protection of mediation content from judicial review. Well drawn mediation agreements also specify that settlement terms must be put into writing and signed by the parties for them to be binding, so that no deal can be done unintentionally, so that what has been agreed and any limits on what has been agreed can all be clearly seen and applied.

What I will never do when mediating…

Try to come between a legal team and their client in advising on the merits of a claim or defence. My job is to provide a fair and neutral process for the benefit of all parties so that they can decide what to do about the merits of the dispute, not to show up lawyers in front of their clients. Lawyers protect me from having to give advice on the merits, and can give clients properly partisan advice on the risks of success or failure.

Try to strong-arm parties into a settlement – while I believe that it is better for parties to choose settlement than risk trial, I also believe in each party’s right to choose whether to settle or not: preserving my settlement rate is an irrelevant consideration.

Try to prolong a mediation in order to earn additional fees: I want to conclude mediations as quickly and efficiently as possible and will frankly tell the parties to end the process if my assessment of each party’s position suggests there is no point in carrying on. However, my experience of mediating for over 18 years tells me that disputes frequently settle to my (and everyone’s) surprise by persevering with discussions. So if I suggest that the mediation continues, this is based on my honest appraisal that there is still a chance of achieving an agreed outcome, even if it looks unlikely.

 

(c)   Tony Allen

 

Becoming an Excellent Mediator

When facing opposite choices, it’s all a question of balance

by Heather Allen

(This article first appeared in www.mediate.com in October 2012)

The excellent mediator must answer the challenges posed throughout by the participants’ behaviours and the content of the mediation, and it is the extent to which balance is achieved at every moment through the exercise of good judgement that determines effectiveness. The mediator’s focus and approach must change frequently throughout the mediation – sometimes planned and sometimes intuitive.

The following headlines seek to describe and define in summary some of the areas where the mediator must make choices to create the appropriate balance, which can make all the difference to the outcome for the parties. The word ‘balance’ in no way implies that the answer lies in the middle with the scales gently poised in equilibrium; in mediation, the need for a particular focus may be extreme in one situation and at another be absent entirely. The really effective mediator does not fall into one category or another but uses the full panoply of techniques, skills and approaches to meet the changing demands of each case, each situation and each person involved.

Each of us, depending on our experience, expertise, emotional and practical preferences, will feel more or less comfortable at different points on the spectrum for each of the aspects listed – the skill lies in the ability to be flexible, even to the extremes which lie far outside our own zones of comfort, and helping the parties to be flexible, too.

o Task – Process – Relationship

The management concept that a balance is needed between task and relationship is relevant to the mediator, with the added dimension of process being critical, too.

o People - Issues

The temptation for some whose professional experience is in the content of the mediation, or conversely where their training is in psychology, for example, must be particularly alert to the need to leave for a while the understanding of the

issues – or the understanding of the people - and move as needed along the people / issues spectrum.

o Detail - Big picture

Jungian theory of type suggests that each of us has a preference for detail or big picture – awareness of this as a starting point, as with other aspects, helps to move us appropriately between specific and global viewpoints, and t help the parties to do so.

o Widening/Opening up – Narrowing/Closing

Thinking of a mediation as being in the shape of a kite, starting at a point and opening up, then turning the corners and converging at a final point of agreement, the mediator helps the parties to open up the picture, and then guides again in order to leave the wider discussion and move to ideas for settlement and agreement. The exact shape of the kite will vary mediation to mediation, as more or less time is needed for exploration, explanation and discussion before the parties finalise an outcome they can all live with.

o Support - Challenge

Another useful management concept is the balance between supporting and challenging an individual or team on their journey – at any moment, too much support and the parties stand still, comfortable but making little progress; too much challenge and they lose hope and give up trying, or fight the mediator rather than attacking the problem.

o Comfort – discomfort

The comfort of the mediator may need to be sacrificed for the comfort, or necessary discomfort, of the parties. The balance between support and challenge has relevance here, too.

o Exercising control – letting go

In relation to managing the process, working with the views of the parties, and enabling change to take place, the mediator treads a fine line between being accepting and exerting control. The excellent mediator needs to be a figure of authority and at other times the humble servant of the parties.

o Past - Present - Future

The mediator must act as a guide through time. Anger or despair can leave parties stuck in the past, yet there is usually some need to talk about what has happened to bring parties to this point; frustration or anxiety can lead parties to rush to seeking agreement before it has been established what else needs to be resolved beyond the obvious, as a basis for detailed negotiation. With so much to think about it can be a challenge for a mediator to take seriously the maxim

that ‘what is happening right here and now in the room is the only thing that matters’, and that the focus should be on the present and staying in the moment with a party.

o Measured /Slower - Momentum/Faster

Part of the task of the mediator is to create momentum to help parties see and use the opportunity that mediation affords to reach settlement. However, momentum is different from speed, it does not mean one-paced, and not just fast. This is an aspect more likely than some others to be affected by the emotional state of the mediator, who is also subject to anxiety and pressure; the mediator has an important role in assisting the parties to move through the mediation at a pace consistent with sustaining progress. The pace needs also to be consistent with the needs of all parties – and where one party is ready to move forward much sooner than another, the mediator must help all parties to cope, even with boredom, and to keep in view a horizon of settlement.

o Driving - Pulling back

This idea is similar to creating or controlling momentum, above, but with an emphasis on the outcome. There are occasions where the job of the mediator is to drive the process forward, to encourage the parties to develop ideas into agreements, and there are other times when such activity would be premature and risk any progress made being stalled or even reversed. A mediation does not succeed on the basis of what the mediator wants but what the parties need. Similarly, acknowledging or confronting a situationor bypassing a difficultyby ignoring or changing the subject, both have their place in an effective process.

o Focussed - Fuzzy

The use of these words will have a different resonance for different people. Clarity, precision and getting to the point are characteristics highly valued in some professional cultures and in some parts of the world more than others. There are moments in a mediation where honing an idea, taking time to work in depth on an aspect or finalising wording are vital to progress; and there are other moments where leaving things vague, shading the edges of an idea or generalising to avoid commitment can create freedom, scope and possibility. We sometimes need to abandon our own urges for the definitive to allow the best to emerge from mediation.

o Content - Process

The mediator will, of course, talk with the parties about the content of the dispute, in order to clarify what really matters to them and what they need from any settlement, as well as discussing in more detail the risks and opportunities, the options for resolution and the practicalities and technicalities of any agreement. The mediator, as the primary manager of the process, must also

discuss process issues with the parties, to keep them informed about what is happening, to consult and discuss the use of time consistent with progress and to check and confront any possible challenges to the safety of the process, in terms of confidentiality, conflict of interest, authority to settle and the preservation of the mediator’s impartiality. A mediator should keep content and process both fully in view and not get sucked into the content or hide-bound by using the process rigidly.

o Legal - Commercial - Personal

There are at least these three dimensions in every mediation – there are other Models, too, which alert us to the need to move the conversation around, in this model around a triangle of topics – the balance in any mediation will be different from that in another. In every mediation there should be opportunities through questions, silence or other expressions of interest, for the party to open up the legal, the commercial and the personal aspects, in order to find new areas for negotiation that might hold the key to settlement.

o Coaching - Directive

The choice here is between helping the party to decide for themselves and telling them what to do; offering flexibility and certainty in appropriate measure. When a mediator is directive s/he wants the party to comply, when coaching s/he wants to enable and empower the party to make their own decisions and or take their own action. There is often a distinction, too, in style and tone of voice, assertive or gentle. Mediator motivation, however, must be the same for each – from a perspective of non-bias, and with the best interests of the parties and the integrity of the process paramount.

o Calm - Energised

The mediator can and should affect the tone of the mediation. The mediator models the desired tone as a starting point for influencing the level of energy, relaxation or calmness at any stage. Tenacious or relaxed mediator, both are valuable. More direct techniques may sometimes be needed to affect significant change; holding up a mirror to the party to describe and challenge the current approach, thus coaching towards a change in attitude or style or offering a break for reflection or refreshment.

o Together - Separate

This is a process choice for the mediator – to put or keep parties together, to meet privately with one or more members of a team, or to leave parties to meet on their own. There are judgements to be made at every turn about the purpose of meetings and the likely dynamic created by mixing teams and varying the personnel in meetings.

o Pastoral - Practical

There are occasions when the mediator needs to be nurturing, to provide the necessary comfort and security to allow the parties to participate effectively. On other occasions the primary task will be to help the parties to focus on the practicalities of settlement rather than on their emotions. Get that balance wrong and the mediator will get in the way of resolution, either by slowing down the process with an overemphasis on the past and the emotions associated with what has happened, or will miss the point about the need for restorative processes to be part of any settlement. Linked to this idea is the balance between being passionate, compassionate or dispassionate – all appropriate at times.

o Confidentiality and using information

The importance of honouring promises and keeping the process safe is paramount for a mediator. However, the effective mediator knows when to encourage parties to give up their information and to use it to create momentum and progress. In this and in other contexts, the mediator needs to be both a safe pair of hands and a risk taker.

o Facts and figures – Feelings

Each mediator is likely to have a preference for working with either the facts or the feelings, and every mediator needs the flexibility to work outside their preferred zone in order to meet the needs of the parties and the particulars of the dispute.

o Patterns - Inconsistencies

Many mediators come from professional backgrounds where challenging apparent inconsistencies and contradictions is a daily activity, and this, used sensitively, contributes to their effectiveness. However, spending too much time searching for lies and deception will divert from progress; whereas looking for patterns in behaviour and conversation can lead to greater understanding about what really matters and what might lead to settlement.

o Seriousness – Humour

The mediator who can bring humour and a lightness of touch to the job will offer the parties a chance to relax for a while, putting things into perspective. A change of atmosphere can help the parties tolerate each other’s presence and can improve the prospects for successful negotiations. Inappropriate light-heartedness in the face of anger, worry or despair will alienate the parties and create distrust of the mediator.

o Personal / self-disclosure / sentient - Professional / detached / objective

The mediator is there to talk about the parties and their perspectives; "don’t talk about yourself" is generally good advice, especially for the new mediator.

However, the mediator who knows how to pick the right moment to disclose something of themselves, authentically – perhaps feelings, hopes, frustration, experience - can add a new and powerful dimension to the role.

o Good judgement - through analysis and intuition

Excellence requires good judgement, a mixture of well-informed analysis and powerful intuition. Intuition, although less easy to define and to teach, is not random or haphazard; it is the culmination of confidence and competence developed through experience. The mediator needs to be relaxed and attending to the ‘here and now’ in order to drawn on and trust their intuition. Judgement is built in similar ways, through learning and experience, although using analytical skills to decide on action. Good judgement also demands courage and a letting go of ego. The excellent mediator exercises good judgement throughout, for the benefit of the parties and the process over any benefit for self.

The simple and familiar choices about whether the mediator is present or absent, or is silent or speaking have an impact on progress, and neither is always wrong or right. In reflecting on your own practice, a number of further demands might occur to you, requiring a different balance, in different circumstances with different parties, at different times. The old distinction between a facilitative or evaluative mediation fails to grasp the subtlety demanded of and used by the excellent mediator.

© Heather Allen