Anyone for Plenary? - 18/03/2016
In my pre-mediation discussions with the parties’ lawyers I often hear the opinion that the plenary session is a waste of time. Each party knows its case, there is no point in verbally repeating the position statements and “warm words” are unnecessary. In other words, it’s private rooms and shuttle diplomacy – “let’s get on with the negotiation”. Really?
One of my key jobs as a mediator is to try to prevent anything happening that makes matters worse. Bringing together people who have been in bitter opposition for months, sometimes years, is a risky business and it could all go horribly wrong: personal abuse, raised voices, tears, walking out. Lawyers can contribute to a downward spiral by treating the session as though they are in court.
On the other hand, another of my key jobs is to break the status quo and shift the dynamic. To do that, it is sometimes necessary to take (calculated) risks. Some mediators start every mediation with a plenary session. That is an approach I simply do not understand. Why take the risk? I always see each side in private session first, and I use those sessions to sound out the parties on their attitude to a plenary session, and then to form my own view. Is there a real risk – given the personalities involved (including the lawyers) – that the plenary session could degenerate into a slanging match? If there is that risk, is it – in the particular circumstances – necessarily a bad thing?
I am a strong advocate of plenary sessions. I start from two basic propositions. Firstly, the “warm words” of good faith and intention to engage are important: the parties have taken the trouble to come together under one roof to try to settle their differences, and it is only right and proper – as part of a principled negotiation – that they should acknowledge each other’s presence. Secondly, communication is the essence of dispute resolution. Non-communication leads to depersonalisation: the opponent becomes “the enemy” – a caricature. It’s not easy to see someone as anything less than human when you are speaking with them around a table. It’s good to talk.
There are other very good reasons for having a plenary session, many of which I explore with the parties in private session:
1. If your client is also the main witness and their account is credible and sincere, why not let them tell their story, in their own words? Lawyers are naturally cautious about exposing their clients to the other side’s legal team, but you would be well advised to look at each situation on its merits. A powerful, measured and sincere performance from your witness will be noted by the opposition as an indication of how they will perform in the witness box.
2. As a general rule, the longer everyone spends in mediation discussing the issues in dispute, the less chance there is of reaching a settlement. Most parties and lawyers expect there to be at least some engagement on the issues. My approach is to encourage everyone to try to restrict these discussions to the initial plenary session, and then to move back to private rooms and start negotiations. If experts are present (and whether or not they should be is a separate debate!) then why not have them discuss the issues (with suitable prompting) for everyone to listen?
3. Very often the main protagonists were friends or colleagues who had a good relationship for years but who have fallen out over some commercial matter. Putting them together, and encouraging them to speak to one another, might just remind them of what they stand to lose in the dispute other than money. It might also clear up the misunderstandings and false assumptions that arise when people stop speaking to each other. I always encourage the parties to speak where possible, as well as the lawyers..
4. One should not underestimate the power of venting and “having your day in court”. The most challenging and risky plenary sessions tend to occur in highly personal disputes, often between family members or neighbours. But these can also lead to the most transformative outcomes. Sometimes it is appropriate to allow the parties to shout at each other, because that is what they need to do before they can move forward. There is a limit to how long people can hurl abuse, before they calm down and find a better way to communicate.
A lot of the above may seem entirely irrelevant to the insurer or the commercial director seeking to resolve a financial claim. But even in these cases, personalities do get in the way of progress (a common example is where the relationship between the lawyers is difficult). Ask yourself this: if the plenary is unlikely to damage the process, why not give it a go?