..with apologies to Mr Spock [1]

The title phrase is a label that can be applied to the vast majority of mediations in which I have participated over the last 20 years. As an IAMA accredited mediator I ascribe to the ‘facilitative’ mediation process to assist the parties to collaborate towards a solution. With some notable exceptions [2] , I participated in settlement conferences with the occasional case appraisal and typically ‘shuttle’ mediations. It was mediation but, not as I now know it.

I am also reasonably certain that as a solicitor my clients and I were manipulated by mediators selectively disclosing information. I have also suffered the mediator venturing an opinion on the respective strength of the cases or the ‘this is all its worth’ comment. The case appraisal typically happens in the first private caucus session. Although I once experienced this in the opening session of a mediation, which was akin to a Judge asking the parties at the start of a trial ‘why hasn’t this settled?’ This inappropriate commentary is arguably in breach of the mediator’s duty of impartiality and immediately places the parties at a disadvantage in the negotiation.  It can also put a party’s lawyers in the awkward position of having to justify a contrary advice.

The mediator typically has a discretion about what information to disclose and that has the potential for abuse or manipulation of the parties.   For example the mediator might elect not to disclose that an offer is ‘plus costs’ in order to solicit a counter offer and then only disclosing the ‘plus costs’ component when the timing is ‘right’.  There is also the potential for the deliberate loss of any emotional overlay with the offer [eg an apology] in order to introduce that later as a ‘deal clincher’.   These are very risky strategies for any mediator with the potential for failure of the mediation, a loss of faith by the parties and disciplinary action against the mediator.  The use of this discretion is I believe common in ‘shuttle’ mediations.  

The shuttle mediation does have a role to play in mediation. Laurence Boulle in his book “Mediation skills and techniques” [3] endorses ‘the shuttle’ [4] but contends it should only be used in very limited circumstances where the parties can’t be, or negotiate, in the same room together. For example: legal or safety reasons, intimidation or fear, gross imbalance of bargaining power, linguistic or cultural differences leading to poor communication and finally the need for secrecy or discretion such that the parties can’t be seen to be negotiating.

An acknowledged risk of the shuttle is that the protection a separate room affords also provides a forum to “engage in positional bargaining, threats, bluster and other negotiating tricks..” [5]. 

I am reasonably certain that only a small number of personal injury cases would fall into any of Mr Boulle’s five categories.  And yet ‘the shuttle’ is the ‘accepted’ or ‘usual’ format of mediation in personal injury cases.  Does it have more to do with the party’s lawyer wanting to maintain control of their client and the bargaining process?  Yes I believe it does, but the paradox here is that the shuttle gives to the mediator what Mr Boulle describes as “enhanced potential control and power” [6] as all of the communication is done via the mediator.  A mediator who drops an ‘all its worth’ comment early on and then engages in a shuttle doesn’t inspire confidence in either their impartiality or the mediation process.

I have also experienced other ‘not as I now know it’ mediator moments –  

• no pre-mediation meetings with the parties to establish rapport and gain a first -hand understanding of their respective arguments [thus allowing a party time for reflection];
• the first meeting with the mediator on the day was nothing more than a brief ‘hand shake’ and ‘chat’;
• there was no strong formal opening statement reinforcing the mediator’s role and how the mediation would proceed;
• the mediator refused to allow the mediation to run over time even though the parties were very close to resolution;
• the mediator asserted it would be useful for the opposing lawyers to talk directly unhindered by his involvement or the presence of their clients;
• there was no formal closure of the mediation after settlement and no final meeting of the parties. The insurer’s party left by the proverbial ‘back door’ and was not seen again.

The effect of the last two failures were that my client went from confusion to feeling irrelevant and disconnected with the process and then without any sense of closure. I recall one caustic comment afterwards ‘what did I pay the mediator for – nothing but the use of his room, he didn’t do anything you and my barrister did it all’.  Now that may or may not be true but on that occasion the mediator didn’t provide any level of confidence of being in control of or engagement in the process, quite the opposite. 

The profession has a responsibility to support mediation and ensure that its value to the dispute resolution process is maintained.  The focus clearly has to be on the parties to build their trust in the process, achieve resolution and to provide closure.

So what should you expect from a mediator? 

The mediator has an obligation to engage with the parties prior to the mediation, not on the day of the mediation or worse just before the opening session.  A well drafted information sheet will help the parties to understand the mediator’s approach.  The initial meeting and information exchange is more important for the claimant as typically the commercial defendant is familiar with the process and likely also, the mediator.

At the opening session the mediator has to clearly reiterate their role and that of the participants, how the mediation will proceed, the importance of communication and the exchange of information – what can be disclosed and what is to remain confidential.  The mediator must take particular care to remain impartial, excepting encouraging a party to apologise or express empathy when so required.

The mediator ought to keep sobering the parties by reality testing their evidence, arguments, offers and resist becoming an advocate for either side.   The mediator has to keep their own counsel about the respective cases and not express an opinion on ‘what it’s worth’.  During a shuttle the mediator ought to be quite transparent about what information is being disclosed and if there are confidential communications underway.

The mediator ought to allow for the possibility of the mediation running over time and be able to accommodate the parties continuing to negotiate.

At the end of the mediation, regardless of settlement or not, there must be a final session between the parties. This is typically more important for the claimant’s need for closure as money alone is often not sufficient to heal all their wounds.

^{[1] This phrase is often misattributed to Mr Spock but it was not used in the Star Trek series but rather in the 1987 tribute song ‘Star Trekkin’.
[2] The Patel mediations run by Ian Hanger QC come to mind.  
[3] Butterworths Australia 2001 – ISBN 0 409 31229 0 – see 9.6 to 9.16
[4] A convenient term and not another Star Trek reference!
[5] “Mediation skills and techniques” ibid @ 9.12
[6] “Mediation skills and techniques” ibid @ 9.7}