Mediators of the Round Table

Legend has it that King Arthur’s Round Table was built to keep his knights from claiming precedence over each other and to settle quarrels between them. I like to think there’s a bit of Camelot in the round table meeting at the start of mediation. This plenary, or joint, meeting offers the opportunity for collaborative discourse and can help set the right tone for the negotiations to follow.

I believe it’s better for the parties to express themselves directly to the other side at some point, and early on in the day seems the right point. This is a chance for the opposing sides to see who they’re dealing with – and it may not be the character with horns and a long tail they were imagining. When people meet one another across the table they can be seen as human, not some devilish figure or anonymous entity.

And the plenary meeting is a good time to talk concessions as part of the negotiation strategy. For example, a claimant might use the opening meeting to suggest that to assist the negotiation they won’t pursue the claim for interest on their losses. A defendant might concede that, for the purpose of the mediation, they won’t argue liability on the basis that they have good defences in causation and quantum (where the true battle ground lies). Presenting a concession at such a meeting can set the subsequent negotiation off on a positive footing.

Round table and risk analysis 

Protocol correspondence or Particulars of Claim and Defence contain chapter and verse about the issues in the dispute. However the position papers and a presentation in a round table meeting provide the opportunity to focus on the most important legal and evidential issues that the other side needs to consider in terms of litigation risk.

Lawyers, speaking on behalf of their client, can use the plenary session to persuade the opposition that their risk in the dispute – and in the litigation that will inevitably follow if there isn’t a settlement – is greater than they may have given credit for. It’s about influencing the other side’s risk analysis, unfiltered by their own legal team

Sizing up the opposition 

I deal with quite a lot of professional negligence cases where a private individual might be suing a professional, such as an architect, solicitor or accountant, and a plenary session is an important opportunity for the claimant to demonstrate to the defendant’s team that they’re going to make a very credible witness at a trial. And that’s something that both parties are going to be sizing up. How good is this claimant going to be in a trial? And how good the defendant? Are they going to impress the court?

It goes back to risk analysis. What are the chances of this outcome versus that outcome? And how much will it be right for us to pay/receive in order to buy certainty on the day of the mediation?

Online plenary meetings

One argument against joint meetings is that where a fractured relationship between the two parties exists it could hinder the mediation process. That’s certainly very often the case in high-emotion family disputes with a long history of animosity where it would be counter-productive to put the parties together.

There are workarounds, though. In a recent inheritance case, the claimant – who’d been in a relationship with the deceased and was seeking reasonable maintenance – wasn’t prepared to meet the executor/beneficiary by whom she felt intimidated. The executors, however, were keen for her to hear directly what they had to say. In the end, the claimant agreed to attend an online remote plenary meeting provided that she could turn off her video and microphone so she wouldn’t be seen or be expected to respond. The case settled.

And back in the world of face-to-face mediations, I know of a case where the mediator put the vulnerable claimant in a nearby room connected to the plenary meeting by conference call.

Don’t knock it until you’ve tried it

I know that a good many legal representatives aren’t fans of the round table meeting. They just want to get on with things or to avoid any potential unpleasantness (if the meeting does go pear-shaped a mediator will be quick to end things and then work with each party in its own room separately to return a sense of optimism to the process).

My default position is to have an opening meeting but I will only do it consensually. If one party says that in no circumstances will they have a round table session, I won’t try to push them into it. I might try to persuade them, though. I’d certainly ask them to explain why they were so averse to it and to talk to me about their fears and concerns.

We may not be in Camelot – but when it comes to mediation, the round table is still a very good place to start.