How do you prepare for mediation?

Sabine: What do you do to prepare for mediation?

Well, I wouldn't like people to try this at home, but what I do to prepare for mediation- as in my law school days, I could never study in a quiet library. In fact, I didn't really know where the law library was the five years I spent at law school. I always used to have to be in a buzzy atmosphere. So I, normally I read the papers the night before and we often get a lot of papers. But, less is more, as I say to the lawyers. But I'll read the papers that night and in the morning it's an early start in a cafe near the mediation venue, and I will prepare with all the noise and the espresso shots around me. And that's the way I do it. And I'm a visual learner, so I will always reduce the- usually the factual chronology to a wiring diagram. So I will write out on my- I have a book for each mediation I do, an exercise book- and I will do a wire diagram, a line drawing of contract, sale, breach, and that's how I kind of get it. Because my old boss used to tell me "Facts are king," and I think that's the same in mediation. Facts are king. And you've got to understand how the parties are putting their case. The facts, the structure of the argument really needs to be burned in for the day. And mediators are- good mediators are quick learners. You know, quick acts. So you learn stuff, it's short term memory. By the- mediate on the Monday, by the Thursday I can hardly remember what I mediated on the Monday because stuff went it and then stuff went out. My old boss also said "flush mentality," so he used to come back from court and go "Tchhh!" (Sabine laughs) Used to go.

Sabine: Good for confidentiality purposes, too.

Yeah, yeah, yeah, that's right. Yeah. So people- one of the funny aspects of being a mediator is people will come up to you in the street and say, "Gosh remember that three years ago, "that was the most important day of my life." And you know, you're going, yep!

Interviewer: Can you give me an example of how good preparation, both practically and mentally can bring about a good outcome in negotiation?

Sure, let me think about an actual example. I think making people plan ahead. So not arriving hot and sweaty, not arriving without time to think through exactly how you want to say something and who you want to present it to, and in what manner is really, really important. Silly things like having a good night's sleep, not over-drinking the night before, making sure you're going to come fresh to it. So you're going to really give it your all is very, very important. So you physically need to be ready for a negotiation as well as emotionally. You need to recognise in yourself, if you are a passionate person, if you have felt hurt, if you want to express anger, that that's probably okay and important to do it, to get off that tension. But that and you also personally need to move on. And then you need to reflect, who am I speaking to? Where are they coming from? Are they going to be emotional? How does that make me feel? How am I going to manage that? Do I need to accept it, reflect it, acknowledge it, so that I can move them on towards the negotiation phase? So recognising who am I speaking to? If they're going to get really angry and shouty and fast talking, what am I going to do about that? Sometimes just stopping and pausing and changing the pace is really, really effective negotiation. It is just not letting someone dictate the pace of the negotiation. You watch it in a tennis match. Some person plays super-fast and the person slows the speed down and they get to win the point. It's not to win the point so much, it's merely to keep control of where you want your outcome to be.

Interviewer: What can you say about how the lawyer prepared your client for negotiation in this instance?

I think she did really well, I think the things that she did well were, that she talked about what the process would look like. She also asked him about what the main issues that he thought were urgently needed to be discussed. And she did so in a way that was really interesting because when he said, you know, one comment about, well that wouldn't, I don't want this to come back in the future. Well, she said in what way? Because maybe naturally you might understand what he's inferring too, but you might not and or he might have a different interpretation so it was good to get clarity about what he doesn't want. And because that feeds into the worst case scenarios for him and what would be considered as a loss for our client. She also asked him, you know, well what would you like to get out of this? And he's identifying things, he's also expressing that he understands the other party's concerns and demands and pressures. That can go a long way to showing that the, you know, her client understands some of what's driving them and that will be really important. I think too though, it provided a point of clarification about what is their criteria that they're using and that can be really critical. And lastly, she prepared him for, you know, what if they don't like, you don't like what they have to say. And that is reality testing in one capacity, this attorney may not know what exactly she thinks is a realistic outcome, she may not want to actually say that ahead of schedule. But she, you know, she's asked what happens and he said, ah I don't know this makes me feel really uncomfortable. And I think it was a really important comment to make because she really needed to prepare her client in case it doesn't go that way because there's a danger in lifting up expectations to a certain point. If it's possible, maybe not even probable but possible that it may not go the way that he intended. So just be able to prepare him for that and to bring then out his best alternatives and his worst alternatives. Those are pretty important to identify early on, so you have some idea what skin you have in the game and what you desperately don't want to lose or what, you know, you see as your end game and what you really don't want to go beyond.

Interviewer: So, given that lawyers are now more familiar with the mediation process, what can they do to help their clients agree in mediation and prepare for the process?

Well, I think it's very important that the lawyers, obviously having an in-depth knowledge of the process, explain all the ins and outs of the process to their clients, and certainly I have picked up on a number of occasions that the clients actually don't fully understand the nature of the process, and if you get into a deep conversation, they can be reluctant to explain the vital features of the dispute that has arisen. So, effectively, lawyers must take more time to explain the ins and outs of the process, and in particular, as to how the mediation actually works, like, in a recent situation, the solicitor had retained three rooms, and there were three parties, and I said, "well, I'll need a room." And it's only, it's only a little example, but "well, no, you can go into each room and keep moving around." I said, "no, not necessary. I may go to their rooms, but I may want them to come to a separate room." So, little things like that, but that all needs to be explained to the clients, and I often feel that that in-depth explanation isn't furnished and should be really. Other than that, it's, I suppose, the length of time that may be involved, people are inclined to get a bit upset if you've started at, at maybe nine or ten in the morning, and you're still going at nine or ten at night, and people may say, "look, I've had enough, I'm going home." And I think it would have been of significant importance when those events have occurred, as they have with me that, you know, the solicitors would have explained to the participants, "look, this could go on, but if the mediator feels that it's worthwhile to continue, you should accept that situation and keep going." So, these are just small things, but they're important at the end of the day. So, in a nutshell, the participants in the mediation should be fully advised of all the nuts and bolts of the situation, and those smaller matters that I've mentioned.

Interviewer: What role do barristers have in preparing clients for mediation?

Well, if a barrister feels that mediation would be the proper solution in the best interests of the client, then the barrister should help the client prepare for the mediation. The barrister should understand what the mediation is about so that he or she can explain that to the client. And then it's to prepare the client for a sea change of attitude. We're not now trying to win over the other side. We're trying, in fact, to collaborate with the other side to achieve a resolution of the conflict. I often say to clients at mediation, when I meet them before the day of mediation, that they should suspend all their thinking about the adversarial nature of litigation and they should look forward to the resolution of the dispute. They should change their mindset. I think barristers should say that to clients, that for a short period of time start thinking about the resolution of this conflict, rather than the winning or losing of it.

Sabine: You've said it it's useful to talk to your clients maybe or to the parties a little bit before they make an opening statement. So what would you say to them? How would you prepare them to do so?

Well, it's always useful to talk to a client or a party, and it's always useful to listen to them, and it's extremely useful to actively listen to your client. But what I would say to a client participating in mediation is this, take a break from the way you have ordinarily looked at this problem, take some time to yourself and try and work out what you will say which will help the other side. I'm going to ask you to do something which sounds counter intuitive. I'm going to ask you to think of ways in which you could help the other side to resolve the dispute. What would work with them, do you think? What's motivating this dispute from their side of it, do you think? How can you help them? And that's such a surprising question after parties have been involved in the preliminary part of litigation for example, it's so surprising that I think it changes the mindset, and I say to people also, litigation makes you look back to a time which was unhappy, which caused you difficulty. I'm asking you to look forward to the resolution of this dispute and what you will do after it is resolved. So help the other side and also, look forward, keep looking forward, looking back is the stuff of litigation, looking back with a view to finding fault or vindication for yourself, that's litigation, looking forward is mediation. So change the mindset. Change the way you're looking at this, forget everything you have learned.