Mediation advocacy and the common firefly

The Lampyridae, or soft-bodied beetle commonly referred to as a firefly, uses bioluminescence to achieve light without heat. The great mediation advocate, whilst achieving the same result, doesn’t. They use something much more complex. An ability to almost divorce themselves from their own case, taking or appearing to take an objective view of the strengths and weaknesses of the respective arguments.

The great mediation advocate sometimes uses a ‘third person’ perspective, moving from one party’s standpoint to another, stopping off in between for what they might describe as a totally objective analysis, often supported by objective data. They move seamlessly between all three positions, with smooth transition. No ridicule, or superior, absolute and value-laden statements, but calm, measured diplomacy with dialogue delivered in a clear, confident and readily digestible manner. Light is shed, without the heat and, as a result, points made have an air of both respectability and acceptability, albeit not always credited as such by those on the receiving end who can’t but help absorb the messages being imparted.

Not all sessions, however great the advocacy, pan out like this and one can certainly think too much about the whole concept of mediation advocacy, but establishing the right tone, mood music, call it what you will of the first session of the day is of immense importance to the process. If the plenary session is used simply to swap incompatible and diametrically opposed extreme positions delivered in an arrogant and/or aggressive fashion, it will be heat, not light that is generated. As a result, these important initial sessions will become less fruitful, parties will be more likely to abandon them and the opportunities they provide, will be lost. Indeed, on the few occasions a party suggests dispensing with a plenary session, the reason given is often that it might generate only heat not light. Sometimes, given the nature of the dispute, the preceding correspondence or position statements, one can understand the lack of enthusiasm to get together. But, paradoxically, it is these cases that often benefit the most from early direct dialogue, even if what is said amounts to little more than introductions and an acknowledgment that everyone is there to try and get things sorted. In short, abandonment of the plenary is a lost opportunity to build a proper working relationship for the day and kick start the process of encouraging people to really want to settle – the first hurdle to overcome in any mediation.

All that said, every party has an equal right to be heard on process (and anything else for that matter) and whilst some mediators can be a little precious about the plenary, it is of course right to properly address concerns rather than push dissenters blindly to follow convention. Concerns, once expressed, can usually be addressed. For instance, there can be an informal pre-meeting amongst lawyers/senior client representatives to ‘choreograph’ the opening session. Assurances of light (e.g. explanations/clarifications) not heat (e.g. cross examination/delivery of ultimatums) can help. Sometimes a few introductions before the full negotiating teams file into the main room and take seats opposite one another can ease tension. Where the reluctance to directly engage is driven only by intra-defendant issues, this can often be addressed by orchestrating a series of short consecutive opening sessions involving each defendant in turn. Whilst perhaps a little tiresome for a claimant, the benefit usually outweighs the burden. There is usually a work-around if time is taken to discuss concerns, preferably in advance of the mediation day.

Given the benefits a good plenary session can bring, it would be a great pity if they became synonymous with heat rather than light. Enthusiasm for plenary sessions would wane and they would become a less accepted part of the mediation process and that, I have no doubt, would be a regressive development in the field of ADR.

and finally, just one last thing….

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In Abberley v Abberley [2019] EWHC 1564 (Ch), it was held that heads of terms agreed at a mediation constituted a legally binding compromise agreement between the parties, not a mere agreement in principle as contended for after the day of mediation by one of the parties. The judge in Abberley held “In my judgment therefore, the essentials of each of the heads of terms were set out in the signed document with sufficient certainty to be capable of amounting to a binding agreement. The fact that attempts were then made to agree further details, and that subsequent documentation submitted for agreement contained variations of how the heads of terms were to be put into effect, does not detract from that certainty”.

It is essential that an agreement that envisages a further more detailed document to follow, states on its face whether it is binding or not. Whilst there was nothing particularly new in Abberley, it does serve as a timely reminder that if further issues require agreement following a mediation, there is always a chance that consensus won’t be found and in these circumstances, the parties should have a clear appreciation of where they stand – bound or not bound by what they have agreed? They should certainly not be exposing themselves to a second round of litigation to get the answer from a judge!