Sophisticated clients often demand a mediator’s view of a case, but mediators are generally trained to resist. JAMS International panellist William Wood QC (pictured) explains the dilemma.
Market demand for an external health check on the strengths and weaknesses of a case is evident, and rising. Nevertheless, when a mediator offers an opinion on a case, it can narrow resolution options, and close possible avenues to settlement. Managing this tension is part art and part science, and a key challenge to the modern commercial mediator.
One of the benefits of mediation is that parties have access to an independent mediator, often a seasoned lawyer, who can help them reach a mutually beneficial settlement. While neutrality is the bedrock for a good mediator, independence, according to Bill Wood QC, does not mean inertia. Good mediators should also be able to assess the nuances of a case and provide parties with thought-provoking responses – though not necessarily opinions – that can help them find the common ground.
It can undermine a mediation if parties expect a mediator to adopt a judicial, or quasi-judicial role. Wood says that the parties should be clear from the outset about what benefits a mediator can bring to the process: “There is not much point in parties simply saying to a mediator ‘this is what we will settle for; go and get it’; the mediator needs to be equipped by you to make your points in the other room and to make sure that the other side really understands your position.”
Rather than merely focusing on settlement, a mediator can be a conduit; they can be used by parties to explore and even challenge the strengths and weaknesses of a case. A mediator, of course, has to balance what insights they can provide with how they provide them in order to ensure that they do not compromise their independence. Mediators are there to assist the parties in finding a solution and not try to unfairly make appraisals of the arguments.
“A mediator has to be aware of being pushed into a bald evaluation of a case,” Wood explains. “Even when using these procedures the mediator’s approach is different to that of a judge or arbitrator. A mediator is not there to make a judgment so feedback has to be presented in the right way.”
Wood suggests that carefully weighted phrasing of feedback is effective in helping parties consider their stance and come to their own decisions. By asking questions and posing alternative viewpoints, rather than either remaining passive or by passing direct opinions on the merits of a point or arguments in a case, mediators demonstrate value. For example, simple, open questions such as, “what do you think a judge would make of that point?” or “Do you think the average person would see that as fair?” or “If you were on the other side, would you think your point is reasonable?” can help provide fresh angles that can help reshape perceptions and open up ideas more effectively than simply offering an opinion. That distinction may sound theoretical but Wood emphasises its importance.
Where the picture becomes more complicated is in the increasingly common “mediator's proposal”, where the mediator may ask the parties to provide, confidentially, their reactions to a possible settlement figure. This figure would likely be more than the defendant has ever offered and less than the claimant has ever said they will accept. Their respective responses are not disclosed unless both sides agree the figure.
Trying to coax the sides into a more flexible approach cannot simply be a case of saying whether the price is fair or not, says Wood. It is not for the mediator to represent his or her views but to stimulate negotiation. Wood suggests instead that a mediator will likely be more effective in posing questions about the fairness and appropriateness of a settlement figure.
While parties are encouraged to think creatively about utilising the mediator during the process, a mediator’s view may be sought in the event that the matter does not settle. Wood gives an example where the mediation agreement was recently amended by two parties to include the provision that, should the mediation be unsuccessful, the mediator would express privately and confidentially his views on the merits of its case to each side.
“I agreed,” he states. “This was an unusual provision for a mediation agreement but illustrates the demand that exists from sophisticated parties for an outside health-check of the strengths and weaknesses of their case. I do always have a clause that says if a stalemate is reached, I can at my discretion make a simple settlement recommendation. It has only ever been used a couple of times. These two parties very definitely wanted something more than that.”
The message is that a mediator is a flexible resource and much more than a horse-trader. Parties are encouraged to select an appropriate mediator, and utilise the full range of that mediator’s experience and expertise as appropriate to the dispute. Wood summarises that, to this end, a mediator can be an effective sounding board for lawyers and their clients. Parties can review ideas and issues about the case with the mediator in order to get an alternative and independent viewpoint.
“A mediator should provide a useful perspective on your own position and not simply be a go-between. He has a job to for you in the other room and a job to do for you in your room too.” he concludes.
This post was written by Antony Collins who is a freelance journalist. He can be contacted at email@example.com