Richard Harrison addresses some fundamentals of the mediation process
The last redoubt of oratory and rhetoric in legal practice is now to be found in the opening plenary sessions of mediation.
The emotional appeal to the jury to give the poor defendant a chance is now firmly in the past. The magnificent cadences of final speeches in civil claims are rarely heard.
But a day's mediation is traditionally commenced by a round- table get-together where the spokesperson for each party gets the chance to put the case at its absolute highest and tell the other side about how dreadfully they have been advised by their own lawyers. This is one chance to wheel out the old advocacy skills.
I have therefore set out to produce a uniform "one size fits all" speech for the busy mediation participant who wants maximum effect from minimum effort. Some may say this is indeed empty rhetoric: I could not possibly comment.
I follow it up with a template address from the mediator on the physiological challenges of the day ahead.
Advocate [looking opponent's client directly in the eye]:
"Good morning. I am sure you will have read our submission which covers a lot of ground. I hope it helps the mediator and I hope it helps you. I shall speak plainly and I shall speak without equivocation. I shall say what I have to say and I shall say no more. We actively sought understanding, we actively sought explanation, we actively sought consensus. It was not to be.
And so we are here today. We understand the nature of mediation and the role of the mediator. We are sure that your lawyers have fully advised you on this. And we are sure that your lawyers, your extremely able and no doubt plain-speaking lawyers have advised you on the costs risks that face you in this litigation, if it continues beyond today.
And no doubt they have advised you how the odds stack in your favour given the strength of the arguments on the issues that are vital to your case.
Your first point let us call it point 1 for convenience and comprehension, is going to fall at the first hurdle. Your own evidence undermines it. Your second point is no better. And as for your third, I think we can safely say that its credibility has as little to commend it as the rest.
So where are we? We are happy to hear what you have to say and take it into account. But we cannot say at this stage that we will be persuaded.
We will take a reasonable stance but will need reasonable points to be communicated and reasonable concessions to be made. We hope you will take our invitation in the spirit in which it is made and we hope the various sessions today will enable a divide to be bridged.
The Mediator may have his own speech to address the physical realities of the day ahead.
Mediator [looking out of the window, if any]
We must consider issues. We must also consider the Circadian rhythms of the mediation process and in particular the effect of diet and beverage consumption on the process to come.
I suspect you have started the day differently to your normal routine. You may have had a croissant. You may have had a fresh orange juice. You may be mainlining coffee. You have had an unaccustomed bacon or sausage sandwich in the café down the road – or even a full English. You are out of your normal routine.
By the middle of this morning you will have drank some more coffee. And I doubt it will be fresh espresso. At lunchtime, you have the pleasure of a sandwich delivery. Whilst you may welcome the relief from boredom which that will entail, you will find that there will not be enough. Certainly not enough of the right sort of sandwiches you like. So, by early afternoon, the cheese and pickle and dubious chicken will be congealing and curling up. This will focus your ideas. You may have tea and cakes but I suspect that the mid-afternoon sugar rush will bring you down and by four o'clock, you will be at a bit of a low. And then the absolutely unacceptable position will be taken and you will want to walk. But you won’t. It will go on a little longer. Nits will be picked, and possibly eventually a settlement will be ground out. It will then need to be documented. If this goes on later into the evening, you will be encouraged to think it a good idea to order in pizza, or even Chinese take-out. Soon you will be surrounded by the congealing detritus of those delicacies.
In summary, your body and mind will have been taken on a roller-coaster and you will feel you have been put through the wringer of settlement.
Of course, we could take both of these speeches as read, and simply get down to talking turkey.
Richard Harrison is a partner at Laytons Solicitors LLP
Richard Harrison
Laytons Solicitors LLP
2 More London Riverside
London SE1 2AP