PI Brief Update

Moving on, After Waiting for Godot - Jon Lang & Denise O'Connor, Independent Mediators

14/01/17. Positive momentum. It’s probably one of the best antidotes to procrastination, and often the difference between the parties resolving a commercial dispute at mediation and having to see each other in court. Are there particular circumstances which may merit co-mediation, with the clear objective of increasing the pace of that positive momentum?

The ‘down time’ logistics dilemma

Mediations involving more than three defendants are by no means unheard of, in disputes involving a claim alleging professional negligence as against a law firm. No matter how well the legal advisers have sought to manage their clients’ expectations in advance, by explaining that part and parcel of the mediation process is a waiting game, the temperature in one or more of the rooms can plummet, if positive momentum is (or perceived to be) lost. One party may lose patience, and be tempted to throw in the towel: toys in another room may inch perilously close to the pram's edge. No matter how proficient, human limitations dictate that a solo mediator will only be able to move things on at a certain pace, leaving parties twiddling their thumbs (and possibly losing focus, hope or patience) for what can become prolonged periods of time. Some people talk about mediator envy – a negative emotion felt by a party left alone for what they consider to be too long in the knowledge that their mediator is spending (too much) time with other parties. Dividing the task of working with the defendants between two mediators can help to inject more pace, in turn avoiding mediation fatigue taking grip of proceedings or mediator envy creeping in. This approach may result in the claimant’s room being kept busier than would otherwise be so, but generally speaking that extra activity will help, not hinder, progress.

The ‘side issue’ dilemma

Imagine (and it’s easy to do, drawing on real examples) a dispute where two law firms are among the defendants being pursued, the two law firms disagreeing as to during which of their respective watches the alleged negligence occurred. The claimant (and, to varying degrees, the other defendants) may view the dispute between the two law firms as something of a side issue, but not tackling it may block – or ultimately derail – resolution of the wider dispute which has brought the parties to mediation. Given the attention of two mediators, one could spend time with (and shuttling between) the two law firms, reaching agreement on the side issue, while in tandem the second mediator investigates how the claim is constructed and what the attitude is of the remaining defendants.

The ‘difficult’ defendant

In multi party disputes, what seems like a disproportionate amount of time can be spent with a difficult defendant, punctuated with phone calls to that party’s HQ, discussions about reserve limits, and the occasional side bar comment about the possibility of there being a problem about the insurance cover. One mediator can be working through what are essentially internal issues, while the second mediator continues apace to progress discussions with the other defendants.

In all the circumstances cited above, and in other circumstances which naturally lend themselves to co-mediation being of real, substantive value, it’s key that:

• The parties buy into the objective of the approach increasing positive momentum;
  
  

• The mediators’ individual styles and skill sets are complementary;

• The mediators have trust in, and a strong rapport with, each other;
  
  

• There is an agreed road map both as to the division of tasks and joining the dots.

With these dynamics in situ, the pace of sustained positive momentum should be demonstrably faster than what even the most able of mediators could have created solo.

A note about the authors

Jon Lang and Denise O’Connor are colleagues, both being members of In Place Of Strife Mediation Chambers. Jon is recommended for his commercial astuteness, deftly placed humour, and unerring ability to read a room; Denise is recommended for her pro-active and effective approach, and out of the box thinking. Jon and Denise are on the same page, in concurring on key factors which do (and do not) assist the successful outcome of mediating professional negligence disputes.

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