The Mediation Albatros

albatrosI was mediating last week, and am pleased to say that I was successful in resolving the dispute that had been referred to me.

I say “pleased” with some hesitation because I have a rather bizarre record which hangs a little like an albatross around my neck: I have never failed, as a mediator, to resolve the dispute before me. It is a somewhat bizarre record, as improbable as Perry Mason winning every single case he fought on TV. There are some mediators who have mediated hundreds of cases, and for them, of course, such a record would be impossible. Mediation is not my only focus in life (although I do enjoy doing it) and I have done only a few dozen mediations as mediator.

Litigation is not a zero-sum game, and in the vast majority of cases, good sense should persuade the parties to settle their dispute without going all the way down the litigation track. In construction cases, the end result of litigation that is all too often that both parties end up as losers, because of the huge legal cost, and I make no secret of my objective, when acting for a party, of always trying to achieve a result without the need for a trial.

Just occasionally, however, litigation benefits both parties. Many years ago, I was acting for a lady who absolutely refused to accept my advice is to a sensible settlement of her claim. For a while, I thought that this reflected some failure on my part to give the advice cogently, but one of my partners (quite a bit older and perhaps wiser than me) remarked that for this lady, who was somewhat advanced in years and who had no remaining family, litigation was what she lived for. She had a great deal of money, and the litigation process brought a purpose and excitement to her life which was otherwise lacking. She was a seasoned litigant, and I do not think she ever engaged a woman as her lawyer, nor a man of her own age; that would have rather spoiled the point for her.

But these cases are very rare indeed, and even for parties with a great deal of money, there are generally much better ways of spending it in order to obtain some fun.

Adjudication is often a good option, but where this is not available, mediation is typically a sensible way of resolving disputes. There are various flavours of mediation, ranging from the evaluative (where the mediator expresses an opinion as to the likely outcome of litigation) to the facilitative (where the mediator expresses no opinions at all). The standard form of the Law Society of South Australia mandates the latter approach, and these were the rules of engagement for this last mediation I did as mediator. I have to confess, however, to a slightly guilty feeling about this: it is lazy. I am not remotely suggesting that it is a good idea for mediators to shoot from the hip, firing off opinions about legal outcomes when knowing less about the case than the lawyers for the parties. But my experience of construction cases is that, on balance, a hybrid approach achieves the best track record. For a mediator usefully to express opinions as to the legal position requires considerable judgement and restraint. On the whole, it is a bad idea to express opinions unless and until the mediator is confident that the parties will have more faith in his or her legal opinion that the legal opinions of that party’s own lawyers. For this purpose, of course, it helps if the parties have already formed the view that the mediator is the smartest person in the room, whose analysis of the likely outcome is much more dependable than that of the parties’ own lawyers. And time after time, I have seen construction mediations which have failed to achieve a result until, at the end of the day, the mediator issues a non-binding recommendation as to how the matter should be resolved. If the mediator has sufficiently impressed the parties, these non-binding recommendations almost always hold sway.

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