5 myths of mediation - misunderstandings, misconceptions and misapprehensions By Harry Spurr

Don’t get me wrong - it’s hugely encouraging to witness the steady increase in the use of mediation across the justice system in recent years. Vast amounts of money saved, parties freed quickly from litigation that is wrecking their businesses, lives and livelihoods, and better outcomes delivered. But all processes that solve problems require effective input. And so it is with mediation, during which I often hear tactical remarks that are well-intentioned but misconceived. And so, in a bid to respond helpfully to some of those, this article aims to debunk five of my favourite mediation myths…

Myth 1: “Opening joint sessions are a waste of everyone’s time; let’s just get on with it!”

I hear this a lot, and I understand why. A poorly handled OJS can be a car crash. I’ve witnessed one or two really bad ones. I’ve even seen opposing senior partners from well-known firms face off. And even when a punch up seems safely off the cards, an OJS can be a tedious waste of everyone’s time – for example when the parties’ lawyers simply read out their position statements (yawn).

But… when approached constructively, an OJS almost always proves valuable in my experience. How and to what extent depends on the circumstances, but here are some of the benefits that I regularly observe.

First, there is something about parties coming together to demonstrate a shared commitment, with the inevitable exchange of social courtesies, that can act as a foundation for a respectful negotiation.

Next the OJS offers a valuable opportunity for the parties to engage directly with one another and each other’s legal team. This can alter perceptions and resolve unhelpful assumptions developed during exchanges of formal legal correspondence.

The OJS also helps me as mediator, because it gives me an opportunity not just to set a positive tone for the day, but also to observe the dynamic between the individuals attending.

And actually it can offer to the parties the same insight, and, on occasion, a unique opportunity to assess the likely performance of the other side’s witnesses – almost certainly the only one they’ll get before trial.

Finally, emotions can block progress at mediation, and the OJS offers a space to express these in a way which permits a more constructive negotiation.

So I almost always encourage an OJS, but usually with some guidance on how best to approach it – a subject for another blog…

Myth 2: “It’s a sign of weakness to make the first offer – let them do it…”

This is another common misconception. If (as often seems to be the case!) “the other side’s position is hopeless and they’re only here to try it on” why be the first to compromise? Here are three good reasons to take the plunge:

First, it’s a sign of good faith that will affirm to the other side that you’re here to do a deal. That will make them trust you more, and humans don’t do deals with people they don’t trust.

Second, we hate to feel indebted. In 1974, Philip Kunz, sociologist at Brigham Young University in the US, sent 600 Christmas cards to random strangers picked from the phone book and, amazingly, received more than 200 in return, some accompanied by long, personal letters. Robert Cialdini described this in his 1980’s bestseller, Influence, as the ‘reciprocity rule’ in action. And it means that if you make the first offer, and it’s a sensible one, you’re likely to get a sensible one in return.

Third, it allows you to exploit the cognitive bias known as ‘anchoring’ – the tendency to use pre-existing data as a reference point for subsequent data. In other words, to stake out, to some extent, the zone of negotiation.

Does it work? I often hear lawyers downplaying the power of anchoring, but studies have shown that it is in fact educated professionals (such as, er, well, lawyers…) who are most vulnerable to it, presumably because we think we’re too smart to be affected.

A final point about first offers, and how to make them. To get the benefits above, the offer needs to be sensible. As a well-known American tennis playing mediator once said to me: “You gotta get the ball in the court. You gotta at least invite a return of serve. No good whacking it out the park, however damn fast.”

Myth 3: “Don’t share this with the other side, because you should never give away your best trial points at mediation…”

In truth I don’t hear this one very much any more. At least not from parties genuinely committed to settling. I think most parties realise that denying the other side a chance to hear your case expressed at its highest defeats the purpose of mediation. Not only do you miss the chance to push them towards a favourable settlement, but you also lose an opportunity for an early heads up on their response, which just might not be what you expect… Mediation works best when parties are open and honest.

Myth 4: “If we don’t see some early movement from the other side, we’ll be putting our coats on.”

Impatience is understandable – you’re here to do a deal and there’s no point hanging around incurring fees if the other side aren’t here to be sensible, right? Well, sort of.

Just because parties pitch up at mediation doesn’t mean they’re ready to compromise. When we’re in conflict it takes time for us to get our heads round the idea that there might be a version of events that is different to the narrative that we’ve been telling ourselves, let alone that the Judge might prefer that version. There is a neuroscientific basis for this – we need to work around the established neural pathways developed during the dispute. This is difficult, and happens gradually.

This is why mediation is described as a process. In that respect it’s like litigation; you’d never suggest jumping straight to trial and skipping disclosure, evidence exchange, and so on. And so it is with mediation; it needs to play out to be effective, and this requires the parties to put their faith in it and the mediator, and let events take their course. And sometimes that means being super patient. Push too hard too early and you risk a walk out. Good things come to those who wait.

Which leads nicely to my fifth and final myth…

Myth 5: “It needs to happen in a day…”

Yes, most mediations take place (and the vast majority settle) within a day. But mediation isn’t a one-size-fits-all mechanism. Some disputes, and especially those with multiple parties that take place outside litigation, require a bespoke approach. In one multi-stakeholder dispute I mediated recently, I held private sessions (online, mostly) for no more than two or three hours each week, over a period of several months, because that was what worked best for everyone.

As a mediator, my responsibility is to respond to the needs of the parties – not just the substance of the dispute, but also their diary and geographical constraints. Plus, in some cases scheduling long periods of reflection, and time to take agreed steps, between sessions is really helpful.

So, there are 5 of my favourite mediation myths. Next time: the 5 most common mistakes made in mediation. Only 5, I hear you say…