A Stupid Bear’s Thought on Mediation
By Martin Plowman
Published on August 19, 2011
I often say in the early stages of a mediation that I’m a stupid bear, and need to have things explained to me. Mostly, the parties and their advisors nod in agreement at what is obviously a self evident proposition, but every now and then someone says “I’m sure you don’t mean that”.
Well, actually, I do. Not literally, of course. For a start, Ursus arctos (the common brown bear, though sadly they’re not exactly common any more) weighs at least 300 kg when fully grown, and whilst I seem to be losing my battle with my waistline, things aren’t that bad (yet).
And as for my being stupid, well, I do have twenty years’ experience as a litigator and over five hundred mediations behind me, so hopefully I know just enough about the law, and about mediation, to be able to offer some help to parties trying to find a settlement. But, in terms of what is most truly important in each mediation – the parties’ cases and, even more importantly, their hopes, aspirations and needs, I am, at the start of each mediation, a stupid bear.
I have, of course, read the papers the parties send me. There are mediators who don’t bother, and who just stick some yellow post it notes on the papers at random, so that the parties will think they’ve read them. But I do read every page, and so, yes, I’m broadly familiar with the issues in the dispute. But inevitably, I still know much less about the dispute at the start of the mediation than the parties, or their advisors, do. And I usually know next to nothing about the parties’ aspirations, about their attitude to litigation, about their attitude to risk, or about their hopes for the mediation.
I have come to the conclusion that the “stupid bear” mindset is a crucial part of being (hopefully) a good mediator; one needs to come into the mediation open and receptive to what the parties say, to every nuance of how they and their advisors put their cases, and to what they want. When budding mediators ask me for advice about being a mediator one of the things I tell them (right after “You won’t make much as a mediator”) is “It’s not about you; it’s about the parties. And about their advisors. Not you”.
I mediate full time now, but for some years whilst my mediation practice was building up I ran a litigator’s case load alongside my mediations, and I would attend mediations with my clients. I learnt a lot from some great mediators. But, sad to say, I saw some bad ones. The truly awful ones almost invariably had a high profile. They were, or considered themselves to be, “stars”. Clever bears. Very, very clever bears. And terribly important bears too. And that, I think, was part of the problem.
Probably the worst mediator I ever saw was on the panel of one of the best known and biggest mediation providers in the UK. His profile contained a quote that said something like “You are the best mediator in the world” and his fee would have gone a fair way to restoring the public finances of most European states to robust health. I travelled to the mediation eagerly looking forward to learning from him.
He called my client “Jane”. Her name was Joan. He carried on calling her Jane, even after she had pointed out that she was called Joan. He called me “Mr Dragon” (for reasons that, to this day, remain obscure to me). No stupid bear, he didn’t need us to tell him about our case, because he knew our case better than we did.
It bore no relation to the case we thought we had, but that just showed how little we knew. He knew the other side’s case better than they did, too. Judging by the expressions on their faces, they have as much difficulty recognising their case in his description of it as we did in recognising ours. The distinction between joint sessions and private sessions was irrelevant because only one person did any talking. Him.
From first to last, it was all about him. Eventually, having said that we would work on as long as it took until the parties accepted the settlement that he had determined was going to be agreed, he announced out of the blue that he had been “signalling for hours” that he needed a pizza, and that the mediation was over. You will think I exaggerate, but not so. And a case that should have settled, that cried out for settlement, didn’t settle.
The “stupid bear” mindset – not approaching the mediation with one’s own “clever bear” solution, but being open and receptive to what the parties and their advisors say, and just listening – is crucial for a successful mediation. It’s not the mediator’s role to give the parties legal advice. It’s not the mediator’s role to tell the parties what terms to settle on. It’s not even the mediator’s role to tell the parties to settle at all.
A settlement may not be right for one or both of the parties. Mostly, of course, the savings in costs and emotional energy, the avoiding of litigation risk, and simply the ability to put the case behind them and to move on with their lives makes a settlement mutually beneficial. But, there are occasions where that is not the case. One party may require a decision on a point of law. Or to send out a message to a wider audience.
Sometimes (though rarely) one party’s negotiating position really is so unrealistic that the other party is better off taking their chance in court. These cases may be the exceptions, but they do exist. The point here is that it’s not the mediator’s decision as to whether a settlement is right for the parties; it’s their decision.
It is precisely the fact that the parties are empowered by the mediation process to take that decision for themselves, to take back control of their lives, that can make a mediated settlement a positive outcome for the parties, rather than just an unsatisfactory compromise. And to reach that outcome, the parties need the help of a stupid bear.
Martin Plowman, from the United Kingdom, has successfully mediated over 500 cases.
Article picture: GulArt via Pixabay