Multi-party Mediations – The Art of Plate Spinning

I have sometimes been asked why in relation to a dispute with experienced solicitors and counsel on both sides, the involvement of a mediator is really necessary.  Many years ago, I vividly remember a particular barrister telling me in no uncertain terms “I do not need a mediator to tell me how to negotiate!”.  However, the mediator’s role is emphatically not to tell the parties or their lawyers how to negotiate (because they should know how to do that) but to provide a conducive environment, face to face or online, for negotiations in terms of offers and counteroffers to occur.

In certain cases, the involvement of someone independent can perhaps be given more weight by the parties.  If, in a joint settlement, meeting the other side makes a good point there will always be an element of ‘well, they would say that wouldn’t they!’.  In contrast careful reality testing by a mediator may cause a party to re-evaluate the strengths and weaknesses of their case resulting perhaps in a more realistic assessment of a reasonable outcome.

Where, in my view, mediation has a particular advantage is in the context of multi-party disputes.  In the pre-Covid days, with face-to-face mediations and parties camped out in three or more separate rooms, even deciding which legal representative should travel to which room and when can create uncertainty and confusion.  If one party or their representatives seek to take control of the proceedings the other parties or their representatives may object. In contrast whilst mediation is an incredibly flexible process the parties are expecting the mediator to manage the process.

I once did a mediation with one claimant and five separately represented defendants.  Unusually, the joint opening session involved some 28 people – a mixture of parties, solicitors, counsel, trainees and insurance company representatives. In some senses a mediation is tantamount to hosting a party which in an ideal world most of the guests would prefer not to have to attend.

Even assisted by an observer/co-mediator, keeping all of the occupants of all six rooms engaged throughout a long day (hence the plate spinning analogy) was challenging to say the least. In these situations it is not just a case of the mediator “doing the rounds” and visiting all of the rooms in strict rotation. Instead, the mediator needs to decide in the light of emerging information/documentation/concessions/offers which room he should head to next with a view to maximising the chances of achieving a settlement acceptable to all parties – which is what happened in this case.

In my view, without a lot of careful choreography (including in one instance putting the barristers for two of the parties in a room together so that they could debate a particular legal principle which concerned only their clients) instead of managing to keep all of the plates spinning there would have been the sound of a number of plates falling and smashing.

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The information given here is intended for general information purposes only and should not be taken as legal advice.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.