Is pre-mediation conference good idea?

Not many mediators hold pre-mediation conferences with the parties.  Most often, the first contact between the mediator and the parties happens on the morning of the mediation.  Of course, the mediator has been given a brief that contains everything that the parties think the mediator needs to know.  But is there more to it?

Reading the brief necessarily leads the mediator to formulate a view about the case.  Mediators know that these preliminary views, based on the pleaded legal issues, documents and witness statements, are almost always inadequate or wrong. 

That is natural because the legal documents in a case are written with a technical purpose in mind and, for that reason, can rarely also suit the needs of mediation. That is why some mediators do not trouble to read very deeply into such material. A mediator knows that the real nature of the case will appear once people start talking at the mediation. And while the legal issues are crucial, they are just one part of what matters to achieving a settlement.  For example, it may be important to know:

• What is motivating the parties?
• Are there any outside sources of pressure operating upon them?
• Are there any underlying conflicts?
• Is there a hidden origin to the dispute that matters?
• Are there hidden agendas at play?

Important matters of that kind are difficult to address in a brief but they must be addressed at some point.  When should this begin?

A mediation of commercial disputes has stages. It typically begins with a (usually) futile attempt to identify and agree the significant surface issues accompanied by the parties’ respective attempts to illuminate the real truth of the case for the benefit of the opponent.  Then there is the shift to the exchange of offers. 

These two steps take time. It is during these two stages that the mediator is given a lot of information that is very important to know if the process is to succeed.  It is all new and it will affect the process.  Then, if a compromise is agreed on an in-principle basis – perhaps a dollar figure – the process of hammering out the details begins.

It is these last two stages, negotiation in general and negotiation in detail, that often take the most time and we are all familiar with the frustrations and dismay that can attend the inevitable introduction of the essential ‘details’ that are revealed by somebody for the first time at five o’clock. A mediation can break down even at this point, sometimes by the pressure of time upon exhausted people.

A mediator tries hard to get information about the underlying issues that must be addressed and resolved, or at least acknowledged, if a settlement is to be reached. The mediator cannot know what underlying things to look for in a particular case, or what questions to ask, so the process is a slow one. 

The ability to get information of that kind depends upon many things. To take one example, a mediator must be alert for behavioural cues, like a client’s inexplicable refusal to consider something that is apparently reasonable or a sudden diversion of a conversation into seemingly irrelevant history or other matters. Such clues can evoke fruitful inquiry by an alert mediator. 

The degree to which a mediator can sense these kinds of opportunities and get this kind of information depends upon the degree to which the mediator knows the client. That kind of familiarity grows during a mediation even without a preliminary conference. 

However, sometimes there is a development during a mediation that means that there must be an adjournment. There may be some missing information or evidence that must be obtained to break a seeming deadlock. There might be the need for an expert. A conference beforehand can frequently foreshadow and fulfil these kinds of needs.  Sometimes such a conference can even avoid the need to adjourn.   

A pre-mediation meeting allows for time to be spent for the mediator to learn about a client’s life in ways that might matter later. This is time that cannot easily be found within the dynamics of a mediation. A mediator must be patient and must be a good listener. This takes time and, in the vortex of a mediation, a great many other things demand attention. It may be that there is no better time to do this kind of listening than well before the day of mediation. 

But there is a much more important reason why such a meeting can be a key to success.  Consider the position of the client at the mediation. 

Just as in court proceedings, the whole thing is about the client, but it is the client who gets to say the least. There is always a weight of legal personalities in the room. The company and the occasion can both be daunting to a client who, unlike insurers and bankers, is not in the business of litigation. 

The mediator arrives on the morning and is introduced. Often, the lawyers and the mediator are long-time professional colleagues and behave in a familiar way with each other while the client is an outsider.  The mediator’s personality and reputation may inspire confidence in the clients but there is, as yet, no personal connection between them, although that may come. 

The result is that, at the beginning, there can be real psychological impediments to the formation of a relationship of trust between the client and the mediator. Yet, to maximise the chance of success, the client has to trust the mediator. 

This is paramount.  Litigation is wearing, exhausting and generally frightening. The future is at stake.  Clients must believe that they can personally rely upon mediator to navigate this forbidding and taxing process. 

Remember, at the end, if the client is going to be able to accept the compromise offered by the mediator, the client must believe: “Nobody has made a fool of me. I have not lost the case by agreeing to this.”  That kind of confidence mostly depends, of course, upon the relationship that the clients have with their lawyers. But it also depends very much upon the client’s confidence in the mediator who has guided the process.

The opportunity for the mediator to begin to earn a client’s trust in good time is the biggest reason why a pre-mediation conference may be a good idea.  

This is why solicitors who are contemplating a mediation might think about discussing with the mediator whether to hold pre-mediation conferences with their respective clients. Of course, not every mediation needs this and mediators will have different approaches to their craft.  A mediator may be satisfied that it will be possible to build trust on the day of the mediation. Or such a meeting may be impracticable.  But why not raise the idea of a conference with the mediator?  

The upside is that the necessary mutual trust may begin to develop as early as possible and more strongly than otherwise and there may be the other practical advantages as well. It many cases it can maximise the chance of a successful mediation. And, best of all, there is no downside.