Unlike many mediators – not to mention many lawyers and their clients – I strongly favour the joint opening session. I cannot insist, of course, and occasionally emotions are indeed running so high that meeting face-to-face would be ill advised. In most disputes, however, a good opening session improves the atmosphere by killing monsters. The ogre who for months has appeared only through solicitors’ correspondence turns back into the former business associate, long-standing friend or family member: flawed of course, a [expletives deleted] at times, but still an everyday human being with common emotions and normal motivations.
Once the opening session is out of the way, I generally start each private session by drawing The Twin Pillars of Mediation. The Pillars both explain the process and put some structure on the day. One column is labelled US, the other THEM, and each is divided laterally into three unequal parts.
The capital of the column is the narrow area representing what each party will definitely accept: not just the stated case, of course, but the hidden core of that party’s hard negotiating limits. An artistic mediator can add volutes and acanthus leaves and they would not be pure whimsy. Any party’s stated case is masked, particularly in the opening session, by a good deal of embellishment and exaggeration. It is not all frippery, however; somewhere underneath the decoration is an element that is structural and cannot safely be removed.
Disputes very rarely settle in the capital area, but it does happen. My own record for settlement is a shade under thirty minutes. Such was the parties’ anger that they had not realised until the joint session just how much they both still wanted to work together in the future. Any solution that incorporated that element was thus acceptable to both parties – an outcome that is incidentally a perfect advertisement for the opening session
The base of the column is plain, stubborn stone. This is what the party will not accept in any circumstances.
The longest part of the column is, of course, the shaft, which stands for the area of negotiation. The shaft tapers towards the top (only a pedant objects that a classical column incorporates a number of deliberate optical illusions). Without pressing the metaphor too hard the taper can be used to demonstrate another factor, obvious to professional negotiators, but often far from obvious to the parties. The closer to the base – the closer to the other side’s no-go area, in other words – a party tries to push the settlement, the more latitude he must himself allow on elements that he does not regard as essential to a deal; if he is prepared to negotiate towards the top of the column, on the other hand, where the shaft is narrower, he can be more insistent on his own deal-breakers.
It goes without saying that the elements of each party’s case will shift from one section of the pillar to another during the day. Indeed part of the mediator’s task is to make sure this happens. Faced with a proper analysis of the costs consequences, for example, a party may be prepared to move one particular element from the shaft to the capital: whereas at the outset he would have been prepared to move on that point only in return for a concession from the other side, he is now prepared to yield that point unconditionally. Equally an element that appeared to be stuck very firmly in the base can easily move upwards: a party who was not prepared to discuss Point A at all may be instead persuaded to put it into play if only the other side will make a similar move over Point B.
There is no future in spending too long on this process, however. Once the mediator has established that a particular point definitely lies in the base of one party’s column, the other party will be wasting time and energy if he tries to keep discussing something that is simply not up for negotiation.
Whether the obdurate party is right or wrong, legally or morally, is simply irrelevant. Like him, you are the best judge of your own interests and so must decide whether you want a settlement badly enough to accept the impasse and look for agreement elsewhere; if not, you will accept that negotiations are at an end and, weighing the risks and rewards, judge going to Court to be your better option. The mediation has not failed; it has simply shown there is no common ground.
As I say so often, mediation will not work miracles. It can, however, be a rational process. How do the Twin Pillars help?
In three ways. Like the Dance, which I have mentioned before, constant reference to the Twin Pillars throughout the day helps to prevent the constant back-tracking that bedevils negotiation: ‘No, no, you're back at the base of their pillar: we’ve already established they won’t wear that in any circumstances.’
Second, mapping the various elements of each party’s position onto a pillar may keep a tighter focus on discussions. While the mediator is out of the room, the party left behind has his own negotiating position, and the other side’s, staring back at him from the table.
The third function of the Pillars is by far the most powerful. Reference to the Twin Pillars structures the day. ‘At the moment we are simply trying to find out what the other side’s realistic negotiating position is. Never mind whether they are right or wrong, idiots or bastards: let’s just concentrate on drawing their position on the pillar so that we can work out our own.’
Mediation works no miracles. Constantly redirecting the parties’ attention away from the personalities towards possible solutions can, on the other hand, work lesser wonders.