Less than a year after I ended my third mediation training course, I was asked by the editors of a US mediation journal, “Alternatives”, to describe the experience of changing from being a judge to becoming a mediator.
I see that at the end of this piece I said:
“Perhaps when I am 80, with nine more years as a practising mediator under my belt, I will have reached the zenith. It will then be time to retire – again.”
In the event, ill health (from which I have now recovered) made me retire from this third career a couple of years earlier than I forecast then. I am not sure if I can yet call blogging a career, but this is the closest to a fourth career that I seem to have achieved so far.
Anyhow, this is what I wrote:
I opened my first law book at the age of 25. After 24 years as an advocate at the English Bar, I became a High Court judge at the age of 52. I retired voluntarily last fall at the age of 70 after ten very happy years in the English Court of Appeal, ending up as its Vice-President. Now I have embarked on a third career as an independent mediator. Early on in this career I made the mistake of sitting next to the editor of Alternatives at the CPR spring meeting in Paris. When my cover was blown he asked me to write a piece about my experiences so far, from the perspective of a former judge. So here it is.
I knew a good deal about mediation before I started this new career. By chance I delivered the first judgment in our Court of Appeal which forced litigators to take the possibility of mediation seriously if they wanted to be sure they would recover costs for their successful clients in our costs-shifting litigation regime. I attended plenty of talks about mediation and I watched videos about mediation and I even visited two of the Baltic states to speak about mediation. In fact I knew enough to be quite sure that if I was ever to become a successful mediator myself there was a lot I needed to learn. There was also a lot of accumulated baggage from 42 years as advocate and judge that I needed to unlearn.
What do I mean by this? The skills of an advocate are to conquer the details of a dispute, to give one’s clients high quality dispassionate advice about the pros and cons of pre-trial settlement offers, and if settlement fails, to place their case clearly and persuasively before the court or tribunal, whether in written or oral submissions. The skills of a judge are to conquer the details of a dispute, to read or listen attentively to the arguments on both sides, and then to deliver a judgment, whether orally or in writing, which shows that one understands what the dispute is all about and is giving clear reasons for preferring one side’s case rather than the other. I was often criticised for making my judgments too long, but I always believed that people deserve to know why they have won or lost, and that the judge’s reasons should be expressed in a way they will understand, and not in a shorthand intelligible only by other lawyers.
A mediator’s skills are different. Of course he/she must also conquer the details of a dispute in order to secure the trust of both parties. But there the similarities end. The mediator is not involved in arguing one side’s case rather than the other. Nor is he/she involved in deciding anything. The mediator’s role is to help the parties to find their own solution to their dispute: a solution which is “good enough” – one that they can live with. A mediator’s skills are so different that they cannot, I believe, be learned “on the hoof”. A mediator comes in as a third party neutral to help resolve the disputes which the parties and their attorneys are unable to resolve on their own.
In my jurisdiction we are lucky enough to have a number of bodies which provide first class training in mediation skills. I had so much to unlearn (as well as so much to learn) that I took the opportunity of attending 13 full days’ training from three different training providers last year before I embarked on my new career as a trebly accredited mediator in my own right. Every day of those three training courses was pure gold.
It was odd to be going back to school at the age of 70. It was even odder to undergo a professional assessment for accreditation purposes. This was particularly the case at the end of the excellent CEDR international training course near Barcelona, when experienced mediators travelled out from England to carry out assessments of us all in the last two days of the course. My father kept on having nightmares throughout his long life to the effect that he was having to take his university exams all over again. I have had no such nightmares, but I don’t think I had been assessed for anything since I passed my Bar Finals in 1963. But I survived somehow, and it would be absurd if any reluctance to present oneself for assessment by others were to deter experienced attorneys or former judges from undertaking a training course for fear of being made to look foolish. After all, we were all in it together.
I have heard it suggested that some senior attorneys, whether they come from the judiciary or other high level in-house or even law firm jobs, believe they can move seamlessly into the role of third party neutrals without the need for training because they have been deploying their skills as negotiators for years. In my jurisdiction, where increasing emphasis is being placed on the desirability of ADR, some lawyers even believe that a round table discussion between the parties, their lawyers and possibly their expert witnesses, is the same thing as ADR.
This belief is misconceived. The skills of the third party neutral are called in aid when the attorneys are unable to negotiate an acceptable solution without outside help. What are those skills? One of the most important is the art of listening. “Active listening” it is called in the trade. Eye contact is important. So may be the adoption of a comfortable listening posture which mirrors the posture of the speaker. The mediator must desist from “butting in”, or asking closed questions which may make the speaker feel cornered. Reflective pauses may be important. So may be a play-back which makes the speaker feel that what he/she has been saying has been understood and given appropriate value.
I noticed that some of my colleagues in the training courses found difficulty over matters of process. For a former judge this may be the easiest part of the new role. But it requires careful attention to detail. If the mediator has any control over these things, it matters how the room is arranged. It also matters where the different players are asked to sit. A scene in court too often resembles a series of one-to-one dialogues between judge and attorney, conducted in terms that are impenetrable to the litigants whose fortunes are bound up in the result. In a mediation things must be different. In a plenary session the litigants should be sitting up front, next to the mediator, with their attorneys somewhere down the table even if they are assuming a speaking role.
I still follow the practice of having a prepared script in front of me when I make my introductory remarks. When I was an appellate judge I often saw serious mistakes made in jury directions by judges who had done the job so often that they mistakenly believed they knew the directions by heart. It is important to be careful in your use of language when you explain the difference between a mediator and an arbitrator (or judge). It is important to ensure that when you explain what “without prejudice” and “confidential” mean in the context of a mediation, you also warn the parties that in an exceptional situation (involving allegations of crime of serious health hazard, for instance) a mediator my be directed to answer questions by the police or the regulatory authorities. It is also important to warn the parties at the outset that the time may come when you think it wise to challenge what they are saying. This will not be a sign that you have abandoned your role as a neutral. It will be because you think that a bit of “reality-testing” at that stage may help the mediation process along.
On my side of the Atlantic we have interminable debates about the merits of evaluative as opposed to facilitative mediation. In my book the processes are different, and former judges often obtain a bad reputation in the marketplace because they do not understand the difference. Unless invited to do so by the parties, it is not the mediator’s job to forecast what the result will be if the dispute goes to court. The minute the mediator expresses an opinion of this kind unsought, he/she will lose the trust and confidence of the party who is unhappy with that opinion. The mediator must remain neutral at all times
Of course a mediator who is legally trained must understand the legal issues in the case, and must counsel each party to bear the litigation risks attendant on each issue very carefully in mind when making offer or counter-offer. Greater experience may make it easier for a mediator to recognise litigation risks. But the size of those risks – as opposed to their existence – is something for the parties, with the help of their attorneys, to assess. It is no part of the mediator’s role, and in the absence of proper argument the mediator may get the assessment wrong. This is not to say that very experienced, self-confident mediators may choose to do things differently. Good luck to them if they do.
The time may of course come when the parties invite the mediator to change roles. As a veteran of over 40 years of heavy contested common law litigation, sometimes involving hundreds of millions of pounds, or agonising life or death issues, I would not find it difficult to change roles. I can think of at least two mediations in the last nine months when I believe I could have spared the litigants a lot of expense and worry at the trial if they had asked me for an evaluation when the mediation failed. But the mediator is the servant of the parties, and it is not for him/her to change roles if the parties do not ask for it.
Process, then, is important. For a former judge, remembering one’s new role is important. So, too, is obtaining and retaining the trust of each party (and their lawyers). How this is achieved will vary from person to person and from case to case. Some people are so naturally charismatic that they immediately engender trust and never lose it. Others, with different personal characteristics, find it more difficult. I find it an obstacle when people get up when I enter the room, or refer to me as “the tribunal”, or arrange the seating as if I was chairing a committee meeting rather than sitting down with people to work out a solution to a problem together.
My solution, such as it is, is to remember everything I have been trained to do, to get right on top of the papers so that I can understand exactly what the problems are, and where each party is coming from, to listen hard, and to show each party I understand what they are saying and what they believe to be important. At one of my training courses we were told that mediators place themselves on a four-point spectrum that ranges from the unconsciously incompetent to the unconsciously competent. As a veteran of twenty mediations, conscious competence (Point 3 on the spectrum) is all I aspire to at the moment. Perhaps when I am 80, with nine more years as a practising mediator under my belt, I will have reached the zenith. It will then be time to retire – again.