Mediation Analysis of 2016

reviewI did an analysis of last year’s mediations recently. January is always a quiet month for me, so it justified my being in the office! It threw up some interesting statistics – well, interesting to me.

% Percentages….

The 2016 mediations covered eleven sectors (although some covered more than one) and 44% were construction; Professional Negligence and other Insurance being the next largest sector (20%). 77% of the construction cases settled but only 50% of the PI/Insurance. Best for settlement was Liquidations, Sports and Probate (all 100%) but together they only accounted for 12% of the mediations. Worst was a neighbour dispute (only one) which didn’t settle and so I scored a resounding 0% settlement.

Overall I had a 73% settlement rate, less than 2015 but still around the common wisdom of 70-80% settlement of commercial disputes nationally.

Total value of claims was £61,364,000 plus counterclaims of £13,963,000 but that is distorted by one claim being £48,754,000 plus £10,840,000 counterclaim.

In the end statistics are irrelevant. Settlement rates should be irrelevant. The mediator’s role is to give the parties the best chance of getting a deal. It is the parties responsibility to make the best of that opportunity. If they foul it up, that is their problem. If the mediator leaves a mediation being able to honestly say that s/he gave them the best opportunity, whether they settled or not, then it should be seen as a job well done.

We are in the business of making people’s lives better.

Reconciliation and fractured relationships

It is often a disappointment to me that reconciliation rarely happens in commercial mediation. One of the benefits that we tend to identify when we are marketing mediation is the possibility of restoring fractured relationships, but it rarely happens in my experience. Perhaps it does afterwards, without my knowledge. Perhaps settling a dispute enables the parties to settle and start to see each other as human beings again.

Anyway, I had a mediation a few weeks ago where the parties were reconciled – or at least the process started as the mediation ended. It was a dispute between a mother and her two sons over her estate, which she had signed over to them, but now wanted back. The sons were concerned that their mother had been subjected to outside influence, causing her to change her mind. It promised to be a harrowing mediation but in fact it was sorted with good grace and the mother and her two sons went into a room alone for a little while, when the settlement had been agreed and signed, and came out smiling. That made me smile too!

We are in the business of making people’s lives better.

Trust, Truth, Love and Forgiveness…

(or rather Greed, Lies, Hatred and Revenge)


…I am focusing on the parties. Almost all the disputes we mediate involve broken trust, or at least the perception of broken trust, and that fuels suspicion, expecting the worst of the offending party which, as a consequence, makes co-operating to achieve the best outcome much more difficult.

Our capacity to trust is precious. It profoundly matters when it is broken because it is the foundation of a functioning personality. It is also the bedrock of a healthy society. Broken trust is offensive, it is a personal affront and creates a lot of hurt. Re-building it is a long, careful and fragile process and it won’t happen over the limited time of a mediation. The best we mediators can expect is that a few building blocks are created as we help mend fractured communication and rebuild broken relationships. These building blocks can start with the first open session, as parties come face-to-face and have the opportunity to uncover the reasons for the trust being lost and the motivation of the offending party. It is an opportunity for assumptions to be tested and other truths to be recognised.

Trust relies on the truth and it is important for the mediator to give time to exploring why parties see facts and events differently and why their truths differ. The skills are basic. Helping each party to listen to the other’s story, recognising why the stories are different and encouraging them to value the other’s story as being real (the ‘truth’) to them, reduces suspicion and makes space for acceptance and understanding. Trust may not be rebuilt, but acceptance and understanding are good steps towards it.

Read more….part 3, chp 4, p365, How to Master Commercial Mediation, Bloomsbury 2015

Relationships v problem solving

Commercial mediation is a solution-based process and there is a danger of commercial mediators ignoring the relationship issues in disputes because their focus is on getting the deal.

That fact is that behind most disputes there is a broken relationship and it is important that the mediator acknowledges this.It has taken me some time to remember this because mediations have become harder and I have gradually realised that if I spend more time with the person and less with their problem, the solutions tend to emerge more easily. Spending more time on relationships usually results in the party’s needs becoming more evident and the movement towards settlement tends to become smoother and more co-operative.

If a party feels heard, if their pain is recognised, if their emotion is valued, they are more likely to move on.

That doesbook jpegn’t mean that problem solving is inappropriate, just that taking time with relationships should precede solutions.This is particularly so with irrational or unreasonable people because the temptation is to ignore, dismiss or even resist them. It is even more important to spend time exploring why the person feels so strongly and is taking such an apparently extreme position.

p56 How to Master Commercial Mediation, 2015

The important of negotiation skills

Chartered Institute of Arbitrators

Chartered Institute of Arbitrators

Published in the latest issue of the CIArb e-solver:

David Richbell FCIArb

David Richbell FCIArb

Shaping the deal

Parties need deals with dignity, where they leave the negotiation with heads high and believing they have worked hard to get the best deal.

Mediation is an assisted negotiation, so negotiation skills are vital for an effective commercial mediator. In fact, one could argue that it should be one of the key competencies for assessing newly-trained mediators.

Not only is it important for the mediator to understand negotiation tactics (and sometimes how to counter them) but it is also a key skill to know when to give information, when to hold it and when to re-frame it. So the mediator can have a huge influence in when a negotiation starts, how it develops and how it ends.

Some mediators head straight for the figures in a commercial mediation. Indeed, some lawyers suggest that all the ‘touchy-feely’ stuff is dispensed with and figures are tabled at the start. (Incidentally, ‘touchy-feely’ is now called ‘emotional intelligence’ which is slightly less insulting to us tactile human beings). In general, I try to put off going to figures until the shape of the deal is known. If a party sees their needs being met in the emerging deal, they are far more likely to pitch figures in the reasonable zone.

Pepperdine University has developed an analysis of negotiation styles and produced a chart which categorises offers in negotiation zones as:

  • ‘insult’ – where offers are derisory and calculated to encourage a walk-out
  • ‘extreme’ – which is not much better than the insult zone but less likely to cause a walk-out
  • ‘credible’ – sending a message that you are going to have to work very hard to get a deal but we are here to do a deal
  • ‘reasonable’ – the ZOPA (zone of probable agreement) where the offer encourages co-operative participation in the negotiation. Shared problem, shared solution.

The mediator’s aim must be to get first offers pitched in the reasonable zone, or failing that, at least in the credible zone. Outside that and there are problems!

So I try to delay offers until parties see the deal shaping up, see their needs being met and the chance of their misery ending. Then they are likely to pitch offers in the reasonable zone because they do not want to lose the change of a deal to which they can say ‘yes’.

Of course, some people are poor negotiators. Usually they don’t realise it and often consider that they are really good. Many times I have been tempted to give them my business card and say ‘I run a really good negotiation course … you should be on it!’ There is no doubt in my mind that the best deals arise from parties co-operating, but I accept that it can be counter intuitive to the more natural Western style of negotiation, which is adversarial and based upon a ‘winner’ and a ‘loser’. In my view two of the worst cases of inappropriate negotiation tactics are:

  • Salami-slicing (or peeling the onion) – offering little and slowly. This is most likely if the mediator goes to the figures too early and is based on the premise that the more extreme you start the better chance there is of getting a ‘win’. Of course the other side are likely to reciprocate, so the negotiations start at the extreme and grindingly head towards the middle. In such cases parties often say, when faced with the reality of having to make a deal in the reasonable zone (which is rarely in the middle) ‘we’ve moved far more than the other side’. My reaction is not to say ‘but you started in a much more inflated position’ (tempting though that may be!). Instead, my reaction is to say ‘it’s not where you start but where you end that is important’.
  • First/last offer – where a party tables a figure with the message ‘you know this is reasonable so just accept it and we can all go home’. No matter how reasonable the offer may be, parties will still feel that they have been deprived of a negotiation and that the other side are bullying them into a deal. Parties need deals with dignity, where they leave the negotiation with heads high and believing they have worked hard to get the best deal.

So, in conclusion: establish the parties needs first, shape the deal around them, and then go to the figures (and other detail) when the shape is known.

Be an effective Commercial Mediator

There are essential skills needed to be an effective commercial (or any) mediator. Some skills are natural, instinctive and can be highlighted and polished. Others can be learnt. The result will be people who have a potent force for settling disputes and even for reconciliation – and the world needs lots of such people!

An effective mediator must be a good:

  • Manager – orchestrating the day in the most efficient and effective way, helping the parties make the best of the opportunity and getting the best deal as a result;

the mediator needs to be seen to be ‘in control’, a firm manager of the process; a safe pair of hands who will deal with sensitive issues; efficient; purposeful; even-handed, independent; constantly optimistic; energetic..

  • Communicator – bringing clarity to an often confused and deadlocked situation and helping parties to speak with each other in a safe and nonthreatening environment;

The style and method of questioning, the ability to challenge without appearing to be partial, of being deeply interested without being inquisitorial, and of re framing negative or adversarial statements into positive, more conciliatory words, can be a key to helping the parties to move on.

  • Negotiator – Using the information provided in the best and most positive way and helping parties to shape and settle the best deal possible that is realistic and that will stick;

The mediator is in an incredibly powerful position in a mediation. They are likely to know more about each party’s true position – their underlying interests and needs – than either party and so have insights into how to influence the process to obtain the best deal for everyone.

  • ‘friend’ – building relationships of trust with the parties and their advisers through giving time, carefully listening to their story and understanding their emotions, so that they will share sensitive information and know that it will not be used to their disadvantage.

the mediator is a ‘friend’ to all. Rapport can be built in different ways, but the purpose must always be to create a relationship of trust and respect.

Mediator Bias

We mediators assume that we are impartial and therefore free from bias. But we are formed by our lifetime experience which means that we have many conscious (and unconscious) biases, influenced by our culture, gender, political and religious beliefs, relationships, training, emotions and feelings..


There is a paper in “How to master Commercial Mediation” on Mediator Bias. Paul Gibson, an Australian mediator, wrote it and he will be leading a session on it at the

Further Advanced Mediator course in Italy (11-16 September).


It is a fascinating subject, not least because we mediators assume that we are impartial and therefore free from bias. But we are formed by our lifetime experience which means that we have many conscious (and unconscious) biases, influenced by our culture, gender, political and religious beliefs, relationships, training, emotions and feelings (to name but a few!). So we need to be aware of them and compensate as necessary.

How do you do that? By getting honest feedback from colleagues and family (and mediation users). Even better if you are a mediator and can get a fellow mediator to do a peer review. Feedback will raise awareness and, hopefully recognition and acceptance. Once that happens, strategies for compensating the less acceptable biases can be developed.

Paul ends by saying

“What parties don’t want is the unintended consequences of mediator bias. The responsibility rests squarely with the mediator irrespective of the mediation methodology applied. As mediators, our professional reputations depend on this”.

(Dr_Pau_R_Gibson_Profile_(Gibson_ADR_2014)_, Chp 5)


Silence is a very powerful tool for the mediator. It is, perhaps, difficult to use……but real gems can result if the mediator has the confidence to wait. People feel the need to fill the silence and will often say something that is quite revealing because it has not been rehearsed. Not least when they have just been very emotional.

Taken from How to Master Commercial Mediation (Chp2, pg15)

“Incontrovertibly the most important book on mediation published in English in recent years (possibly EVER?)” Hew Dundas, Former President of the Chartered Institute of Arbitrators

A route map to a deal – Settlement at Mediation

I did a mediation last week that settled by 2.30 pm! It was quite a significant claim and counterclaim but both parties were up for it and were sensible in their negotiations.

Of course this is unusual – the time, I mean, not sensible negotiations! Long gone are the days when it was considered to be ‘manly’ to be mediating in the early hours of the morning.

Most of my mediations do not finish in normal working hours – in fact I say at the start, after checking if anyone has any time constraints, “I’m here as long as you want me but I’m on overtime from 6pm. It’s amazing how that seems to focus the mind!

On rare occasions I might even say “Ok, so let’s assume you are signing a settlement agreement at 6pm, you need to be shaking hands at 4pm which means you need to be in serious negotiations by 2pm. So you have from now until 2pm too get all the detail/rubbish out of the way”.

the art of negotiating

Some people like a route map to a deal and on more than one occasion a party has said “it’s 2pm – we should be in serious negotiations!!”. And they started to negotiate seriously!

University of Ljubljani Lecture

I am currently in Slovenia, speaking at a conference, lecturing to law students and leading a mediation workshop.

The really odd thing is not so much the lack of commercial mediation here, although it has become more established in family disputes, but the fact that nobody asks questions. I recall it was like that in Italy years ago when we did some awareness training, and the same thing happens here. Especially the students. I am told the sessions went well and that the three questions that were asked at the end were three more than normal! The trouble is it is very difficult to judge how the session is being received if there are no questions or discussion.

slajderuncitral2Read my presentation here: MEDIATION OF COMMERCIAL DISPUTES SLOVENIA 2016ppt

I much prefer to respond to questions as they arise and to focus the discussion on where they are and what they find most interesting. No comments or questions leaves me feeling very isolated.