Early on in my mediation journey, I had a meeting set up with a partner from a national law firm. I was very excited to have secured this meeting and was very hopeful of selling myself as the new mediator on the block.
Unfortunately, the meeting did not go as planned. We talked about my mediation process, discussing my views on the importance of settling outcomes in a way that is beneficial for clients. The partner agreed with much of what I said but as we finished up our meeting, he closed with the following statement;
"Nicole, I'm sure you're a very good mediator and I'm sure you know what you're doing. However, we are conservative lawyers. We have a stable of mediators that we've known and used over several years and we will keep using those mediators, even if they're not very good."
Now, hearing that did not thrill me, but it was the final line that really stuck with me. How could it be that lawyers would choose to use mediators who, by their own voluntary admission, "weren't very good"? Especially when there were so many other options available to try and test out?
Fast forward a few years, and I have been diligently building my experience and my network. I'm now thrilled to say that I'm meeting more and more lawyers who understand the value of mediation and the importance of it. However, I have still found that for many lawyers, mediation is simply a process of four to eight hours in a room and nothing more.
An important part of my process for mediation is the intake meetings, where I meet with each of the parties independently before the mediation takes place. Ideally, I like these to be at least a week before the mediation - this gives me a chance to prepare both parties and set them some things to think about before coming to the mediation table. Interestingly, when lawyers are involved they will often try to minimize the scope of this pre work. They may say, "Oh, my client doesn't need to be present, I can tell you everything you need to know".
Often this results with me having a call with the lawyer, which inevitably gets cut quite short and doesn’t allow me the opportunity to speak to the client at all. The first time I end up meeting the actual clients - who are the people paying my bill - is at the joint session mediation meeting. This is a huge loss for the mediation process and often diminishes our ability to efficiently reach a resolution all parties involved are satisfied with. At the very least, it drags out mediation to be a longer process than it would have been with the intake meetings.
So just what is so important about these magical pre-consultations? There are several key benefits of these intake meetings;
Benefit 1 – A more prepared mediator
Firstly, the intake meeting is an opportunity for me to truly understand what the dispute is about and help me create a plan for our strategy. It means I am able to assess what might be required to make this mediation move productively towards a settlement.
In one example, it became clear that before we could move to a joint session there were some key documents that needed to be provided by one party to the other. Neither party had considered the importance of these documents to the mediation process. We then deferred the joint session by a week to allow the parties to exchange and review the additional information. Without this, the joint mediation session would have been a certain failure and ultimately would have wasted more time.
Benefit 2 – A more prepared client
Secondly, the pre-meeting is an opportunity for me to take the clients through a structured negotiation preparation session. Have they thought about all of the relevant issues that need to be considered in preparation for negotiation? Are they clear on their interests and alternatives, and what interests and alternatives the other party might have? Have they got their standards set? Have they considered the impact of the relationship on their ability to negotiate, and thought about ways in which they may counter any relationship difficulties?
Benefit 3 – An increased chance of settlement
Thirdly, the intake session gives me the chance to paint a picture for the participants in the mediation - what will it look like if this doesn't settle? I can start to get them thinking about different options for settlement and start to move them away from what might have initially been entrenched positions. If this movement and gentle pressure happens for the first time in the mediation itself, there is often not enough time for the party to be able to reconcile the need to budge from their position. By having this conversation in an intake meeting prior to the mediation, they have time to reflect and review their thinking and we are more likely to get some movement towards settlement at the mediation itself.
My great hope for the future of commercial mediation is that there is a move towards including these intake meetings with each and every mediation. I have no doubt that there are some very good commercial mediators out there doing this already, but by working towards making this a norm, we can ensure the meditation process is as efficient and productive as possible.