Open Forum

It seems that the COVID-19 pandemic has focused mediators’ minds on numerous issues which might otherwise have received less attention.

 

A case in point is the RI Open Forum commentaries on the failed amendment to the Civil Procedure Act 2005 with a separate focus on the fact that the development of mediating skills is a long drawn out (never ending?) process. Contributors to this Forum would be interested to know that the Law Society of New South Wales’ ADR Committee (Alternative Dispute Resolution Committee) has also been looking at the failed 2009 amendment to the Civil Procedure Act and, separately, to persuading government itself to resort to mediation in a manner closer to its rhethoric than its practice.

 

As a mediator who has done several courses, remains on several panels and has mediated for over 20 years, I have like many been involved in numerous recent discussions about mediating via Zoom or Microsoft Teams as well as about mediation generally.

 

Matters which have been the subject of discussion, apart from the occasional misadventure as a result of failure to “mute”, included:-

 

• A reduced capacity to observe and read body language.

 

• An evening out of mediation styles which at their extremes are sometimes described notwithstanding the primacy of the process and much training as:-

 

• The former superior court judges willingness to focus on the law or other relevant specialist considerations and the possible outcome of litigation as well as the process.

 

• The mild mannered mediator’s approach being a more facilitative style but always including the possibility of resorting to reality testing.

 

My recent experiences have led me to believe that there is scope for “mediating the mediator” (“mediators beware”) when acting for one of the parties to a mediation.

 

The corollary is, for reasons which will appear below, that mediators must be scrupulous, inequality of bargaining power aside, to elicit the best case from both parties to a mediation in order to ensure that they are not subconsciously prejudiced in favour of one of the parties and that this does not affect the outcome of the mediation.

 

Rather than have what follows appear to be heretical I start from the point that a mediator can only “reality test” if he / she has a sense of reality which differs from that of the party to the mediation undergoing the reality check.

 

One hopes that the test will be well founded and subtle but it can take a variety of forms one of which is body language, normally unintended which may take the form of an ironic smile, widening the eyes or pulling the head back by way of a slight start.

 

Even the most self-controlled of mediators are likely to reality test, purposefully or otherwise by reference to their understanding of the ins and outs (I avoid the expression “rights and wrongs”) of the mediation.

 

Very simply the greater the degree to which one party persuades the mediator of the merits (legal or otherwise) of their position the more likely this is to affect the mediator’s perception and the outcome of the mediation because of the mediator’s conscious and subconscious evaluation of the issues and reactions to them.

 

The best way for a mediator to guard against becoming persuaded / prejudiced in favour of one party is to maximise the opportunity of both parties to persuade both the mediator and the other party.

Once again the position in this respect has long been acknowledged by the standard emphasis which is put upon the responsibility of mediators to be aware of unequal bargaining positions and to not encourage a settlement which would result in an unrealistic imbalance against one of the parties to the mediation.

 

A representative of a party to a mediation is in a quite different position.

 

Realistically mediations arise out of conflict. It follows that representatives of the parties to a mediation have an obligation to persuade the other party but there is also an opportunity to influence the mediator’s thinking in a legitimate fashion.

Mediators are human beings just like judges, who are also required to avoid bias or the appearance of it. Their views, tentative or confirmed, can frequently be judged by careful listening and observation.

 

A representative of a party to a mediation accordingly has an obligation to make submissions which are aimed at the mediator as much as they are aimed at the opposing party.

 

The considerations are not necessarily the same, for example:-

 

• Mediators are frequently more concerned about good faith than opponents. Given that written submissions will often be forwarded both to the mediator and the other party it must always be a useful exercise to stress, if relevant, that there has been some attempt at negotiation even if no details are provided.

 

• Any suggestion of a fishing expedition should be strenuously avoided.

 

• A balance needs to be struck between late submissions which, quite obviously on occasions, are intended to not allow the opposing party to do research and the possible benefit of earlier submissions which give the mediator the opportunity to consider legal issues and perhaps arrive at the “correct” interpretation of the law.

 

• Generally dealing with a mediator’s administrative requirements, including payment, promptly and proactively.

 

• Just as mediators attempt to create a cooperative, pleasant, optimistic atmosphere for the mediation it is in the best interests of individual parties to ensure that the mediator is on side, if not on their side.

These thoughts started started to crystallise more or less as about the time of the outbreak of the COVID-19 pandemic when I conducted some quite strenuous arbitrations and compared the process with my mediations also then current.

 

With arbitration the legal representatives regarded it as their professional role, quite rightly, to express their views on the law as strenuously as the circumstances permitted.

In one particular matter there was no holding back by either side as regards suggesting that the other party had acted in bad faith or that the other party’s legal representative did not understand the law.

Then along came Zoom and Microsoft Teams mediations, with some of the characteristics referred to above, and including a number of Small Business Commission mediations between Lessors and Lessees pursuant to the Code / Regulation.

 

Over the period of time when I was either a mediator or acted for Lessors or Lessees in such mediations I observed that:-

 

• Initially the representatives of both parties appeared to be unsure as to the precise effect of the Federal Code or the Regulation. So did some mediators with the result that reality testing was less frequent and less precise than might otherwise have been the case. Settlements were hard to achieve because in the absence of the precedents beloved of lawyers.

 

• The parties including even some mediators were floundering.

 

• As experience with the Regulation grew mediators, in particular, took up more of a role and frequently had to attempt to subtlety correct imbalances where one solicitor knew more about the Regulation than the other or where one party was unrepresented.

 

• The more detailed and professional the submissions which a legal representative made to the mediator, especially if in advance of the day of the mediation, the more likely it appeared to me that the mediator understanding one party’s view but not having been well briefed by the other was not so much reality testing as, using different words, saying to the less well informed party “well what do you think of that”.

 

• If a party is not able to articulate what “he or she thinks of that” then there is a clear danger of slipping further back in the negotiating process.

 

• As the Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 (26 August 2020) decision has made clear that even Supreme Court judges acknowledge the existence of ongoing uncertainties, this is not a criticism.

 

• Many Lessors involved in these mediations were simply trying to establish their rights and obligations and were not necessarily being difficult.

 

• Some however strenuously pressed the view that even if the lessee could demonstrate that he/she was “impacted” it was still necessary to produce relevant BAS returns, absent which a Lessee could not demonstrate an attempt to negotiate good faith.

 

• This argument was put by Lessors pursuant to clause 3A of the Regulation which reads:

 

 

• Sneakerboy quotes the Regulation at clause 69 of the decision but does not endorse the requirement for BAS returns and records that Lessor’s submissions as regards the phrase “reduction in the tenant’s trade” as appearing in Principle 3 of the Code to a different effect.

 

• Of course this report was not available until late August 2020 and the arguments of the parties to these mediations, whether relating to Principle 3, Regulation 3A or some other issue, could not be advanced with reference to it.

 

• Even the best informed mediators were at a disadvantage as regards any intended reality testing if not clear in their own minds as to the obligations of Lessees.

 

• In one instance, not involving myself, I have been informed that a Lessor’s solicitor provided detailed submissions to the mediator (and the other party) some 48 hours before the mediation claiming in effect that “no BAS therefore no negotiation in good faith” thus appearing to have “mediated the mediator. The subsequent response from the Lessee’s solicitor pointing out why a BAS was not automatically necessary, if necessary at all, had the effect of “remediating the mediator” as I am informed.

 

• This particular anecdote and my recent experiences at large have had these consequences as far as I am concerned:-

 

• I am more convinced than previously that parties to a mediation (legally qualified or otherwise) have an opportunity to “mediate the mediator” and should take advantage of it where possible.

 

• The corollary is that mediators need themselves to be alert to the possibility that they are being manipulated “all in a good cause”.

 

• I referred above to two different styles of mediating as though they are mutually exclusive. In fact, they are best combined.

 

The mild mannered approach might be the more obvious but an underlying disciplined focus is equally important.

 

• Whilst I once took the view that a good mediator can “mediate anything” I now believe it is clear that there are situations where the mediator can do a far better job if in possession of the relevant precise factual and legal or other specialist knowledge relating to the matters in issue.

 

None of the above appears to be to be a bad thing. An increased level of awareness is always more likely to result in an appropriate outcome for the mediation. It may however often be an argument in favour of legal or other specialist representation.