If You Don't Try, You Don't Get

By David Goldberg

Mediation is daunting, it’s expensive, it’s not suitable for a case of this type, it may not work and worst still, it may even show our hand.

All valid comments and ones frequently encountered by clients when embarking on mediation for the first time. That said so is my response, that “if you don’t try, you don’t get”. Often a blunt statement of the obvious is enough to tip the balance and lead to an open mind, plus perhaps my confidence in hosting the event in the first place assists!

In reality, the fear of the unknown is often the biggest reason clients are reluctant to try mediation. That and the absence of positive reinforcement of the process by their advisors – solicitors and counsel alike. Unless their often long serving and trusted solicitor has confidence in the process, they will not either. In my experience counsel seem to be far more amenable to the process generally – possibly as they are not so emotionally invested.

It’s for this reason that solicitors need to embrace mediation as a viable option and one with a proven track record of success. There is no guarantee that mediation will work but as stated above - “if you don’t try, you don’t get”. Often, the exercise is successful, but if not, it can narrow the issues and focuses the party’s minds on other ways of resolving the matter short of an uncertain trial. The comments from clients have also been positive – a flexible way of getting closure, sooner rather than later and at far less expense than may otherwise have been the case without the ongoing hassle. This alone is positive feedback as well for the conducting solicitor.

Despite the fact there are serious potential consequences of failing to engage in ADR, case law emphasising the need to consider mediation, an irrational fear persists! There is also the possible potential angst of embracing technology and the dreaded on-line experience. 

It is for this reason that I have delivered some very well received free 30-minute Zoom mediation experiences for solicitors so they can experience the process first-hand and see how it works. I’ve run these for groups of up to 6 solicitors at different firms and for entire dispute resolution teams. The outcome of the exercise is that the solicitors understand and have practical experience of and confidence in the process and will pass that on. Some of the feedback comments from my sessions were:

• I was sceptical about online mediations and how they could work but you've confirmed that they can in fact work, and in most cases, can work as well as a face to face mediation! It's definitely useful to know the option is there as an alternative to face to face once this has all blown over as well, particularly if the parties are geographically far apart.

• Many thanks for your presentation and time this morning, it was very informative, and I feel that I can now recommend remote mediations to my clients with some confidence in how they operate.

• David thanks for the recent online mediation experience session. It was very useful. I feel much happier with the concept of online mediation and would be happy to put it forward to clients and to take part in online mediations myself. You also gave me confidence that online mediation really could work.

I’d recommend this offering for other mediators to spread the word generally and to build their own presence and brand awareness.

At the end of the day, if you can remove an obstacle to the process at an early stage and demonstrate screen sharing and breakout rooms as well as the confidentiality of the process - that the other side can’t hear them in private session the process will run more smoothly from the start. 

I’m also very conscious of the need for and strongly recommend the benefits of a short 15-minute session in advance of the mediation day with each side separately. I propose you involve solicitors and clients so time at the start of the actual day is not wasted setting ground rules. You can also establish any issues that will impact the day (time or personalities) and tailor your approach accordingly. It may become cleat that a joint open session will be a good idea or a disaster! Remember no two mediations are the same so one size does not fit all. This short investment in time will also assist in more quickly building a rapport with both sides and their advisors. Again, a simple exercise that will assist in the mediation starting on a positive note with confidence in the process and the host.

As a helpful tip, its often a good idea to set up a WhatsApp group with the conducting solicitors or counsel so you can liaise with them about entering breakout rooms. This is often appreciated as a subtle way of checking your presence is wanted when you are ready, rather than just joining or sending a disruptive internal Zoom chat when they may need a bit more time with clients and don’t want the flow of that disrupted.

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