There comes a point in some mediations when the parties start to despair of ever reaching a settlement. This is often when sugar levels start to drop in the afternoon. At that point the mediator needs to work really hard to keep everyone focused, engaged, positive, and in the building! There are several ways that can be used to help break a seemingly impossible deadlock.
Positive thinking and tea and biscuits
It sounds terribly ‘British’ but some sustenance and taking a step back to regroup can work wonders. A mediator needs to be positive and to encourage the parties to believe that the case can settle. I often use the example of a case where one party wanted to received £3m and the other thought it was worth £30,000. Seems impossible – but we got there.
These often happen at the start of mediations but there is great value in having them when an impasse is reached. By that point all of the arguments have been rehearsed. However, it is often useful for the clients to hear the discussions between their advisers. I am not a fan of taking experts off to a separate meeting for them to agree things. In my experience what can happen is that they do this and then go back to their respective clients and ‘renege’ or soften what was agreed. This can be a total waste of time and lead to further entrenching. It is often better for the discussion to take place when everyone can hear what is being said and the clients can assess the strength of arguments for themselves.
This also gives the lawyers an insight into how the experts will stand up under cross examination, both their own and the other side’s.
If nothing else, such a meeting will make the parties realise that there are things that they are never going to get the other side to agree with and that they have to accept to ‘agree to differ’. Once they realise they are not going to persuade the other side of their view they can then use their energies to try to find a settlement.
Putting the lawyers together
It can be helpful to put the lawyers together, not to talk about law, but to have a frank discussion between them and the mediator about possible solutions. This often leads to ideas that can be taken back to clients, at the same time, so no one has to ‘make the first move’. Several ideas can be mooted at the same time, the lawyers can seek instructions and then feedback in the neutral environment with the mediator. This can help to take the emotion out of a fraught situation and can stop personalities ‘playing’ to the mediator. It can also save a lot of time.
This can be particularly useful where it is not just money that is in dispute. It may be that the lawyers can work with the mediator to think up some other solutions that can be put to both sides.
Most clients know their ‘bottom line’ and are often ready to talk about figures but get tied up in the arguments being had by their advisers, be it experts or lawyers.
Putting clients together
At one mediation both sides’ advisers told me at the start of the day how difficult the other side’s advisers were. Sure enough this descended into an argument between the advisers. The clients themselves had both seemed very willing to talk sensibly and I was able to get them in a room together with just me. The deal was done within 20 minutes. Even without there being any difficulty between lawyers, which happily is not so common, there is often value in putting the clients together at a point where the negotiations have become stuck. It is marvellous how often a solution suddenly arises. The skill of the mediator is in being able to recognise those opportunities.
Removing other obstacles
Another obstacle in a mediation can be both sides having different views of how a third party eg an insurer would act. A joint call to that person can often provide an answer, so that the parties can stop arguing about what might happen, and use the fact of what they have been told will happen, to either remove issues from the table or work that into the solution.
These can be helpful when parties are very far apart on quantum and neither is prepared to make a leap to close the gap. Sealed bids need to be handled carefully and everyone needs to be very clear on how it will work.
The idea is that both sides give the mediator their ‘bottom line’ figure. The mediator can see if they overlap (very rare). If they do then the parties can agree in advance what would happen – the fairest way would seem to be to settle at the point which is half the overlap. So if the defendant offers to pay £50,000 and the claimant offers to accept £40,000 then the settlement is at £45,000. Also the parties can agree that if they are within a certain figure apart that they will take the middle figure. So if the agree that any gap of less that £20,000 will be spilt, if the defendant offers £35,000 and the claimant will settle at £45,000 then the settlement is at £40,000.
In practice what usually happens is that the parties are still apart more than the agreed gap. But it often encourages them to make big leaps and unlocks the process. The mediator, of course, has to take great care with the information she has been given as this is confidential until there is either an agreed overlap or the parties say it can be released.
Splitting the difference
Not terribly sophisticated, but it often works, particularly near the end of a negotiation where there is only a small gap to be bridged. My very first mediation settled when, on his first offer, the defendant suggested splitting the difference and the claimant agreed. If only they were all that easy!
Above all, keep an open mind and be willing to try what is suggested, even if you think it is hopeless. Remember most mediations do settle.
(This article first appeared in the Estates Gazette).