One-day mediation – it doesn’t always have to be this way

‘What’s your day rate?’ is one of the most common questions litigators ask mediators. It makes perfect sense for many commercial disputes, especially where hot-housing a mediation into the one-day model seems like the most efficient way of getting your client the ‘Four S-es’: Settle, Sign, Settle up and Separate. Besides, one-day mediation is a tried-and-tested format, so why do things differently?

Well, not so long ago, weren’t we saying the same about remote mediation?

I’m not arguing against one-day mediations, especially for regular litigants, like insurers, for example. But perhaps now’s the time to rethink other areas where it may not be the best approach. Like where it isn’t just about settling a ‘piece of business’ so that the protagonists can go their separate ways. Or where, with the right help, parties could possibly rebuild fractured relationships – such as inheritance claims, family business problems, fallouts with important clients or disputes between partners, shareholders or board members.

Why mediation is like marriage guidance

Imagine having relationship difficulties and going to a marriage guidance counsellor. The counsellor isn’t going to say, ‘Right, let me book you in for a day and get you sorted once and for all.’ It’s understood that clients need time to absorb what’s being discussed and process their emotions. The same can apply in mediations. People need time for implications to percolate, especially where, aside from legal and commercial considerations, a lot is also wrapped up in people’s fears or concerns, particularly about their own position.

Also – and this is true about ending most arguments – it’s less about what you say than how the other side hears it. Mediating across two days allows people to ‘sleep on it’, consider the alternatives, and think through the best ways of getting someone to understand their position, or coming round to an idea and saving face. I use the breathing space to help people manoeuvre, while also gauging any change in moods.

Pre-litigation and the art of rebuilding relationships

I recently worked with four partners, pre-litigation. They were having terrible arguments and all believed that the others were about to torpedo the business. It turned out that this wasn’t the case – the business was safe – but to be able to continue working together, urgent interventions were needed, not all of which were immediate fixes. Those that were fixable on the day were resolved there and then, but we also formulated a road map, which we monitored and finessed over two subsequent half-day mediations. As a result, two months later, one warring partner returned from a successful anger management course, a Finance Director had been appointed, and rebuilding work had been carried out, enabling a team to work on a separate floor. More importantly, they turned the business around.

Having shorter sessions enabled me to change the ‘Me against you’ dynamics and help them create an environment where they could appreciate what each other brought to the relationship and establish who needed to change what, and how, to make the business succeed.

International disputes

International disputes can also benefit immeasurably from being spread over a couple of sessions (via remote mediation if parties are more than five time zones away, but also in what are now quaintly called ‘in person’ mediations).

I do a lot of multi-party, multi-national work. I find that while people can behave in the best and worst ways like their cultural identities, this often manifests itself in different ways. Just as getting together face-to-face can help people understand each other better and bridge cultural and linguistic differences, breaking up sessions (and sometimes even breaking bread together) can encourage flexible thinking and move people away from strictly adversarial positions. It can also help me find out what’s going on under the surface and get behind what people are actually saying and unearth what they really want – and the best way of accommodating them.

One size doesn’t fit all

The beauty of mediation is its flexibility. The one-size-fits-all model works fine for many disputes. Sometimes though, depending on who the parties are and how they are likely to respond best, it can be more effective consulting the mediator early on about the best approach.

Think of a mediator like an architect – they can design what’s needed for individual clients. This can include considerations such as how long a session should last, how many sessions are required and over what time frame. You should try it. Depending on the type of dispute and the people involved, the mediator may be able to deliver better suggestions than if you simply ask them: ‘What’s your day rate?’