This was weird but powerful. I was appointed to mediate a dispute relating to the sale of a property. It was worth around £750,000 if I recall. I turned up at the mediation early as usual and did all the usual preliminaries with the parties – including explaining all about confidentiality and without prejudice and how the process was designed to help but not dictate what we would do during the day.
Then a bombshell! I nipped to the loo and when I came back the lead solicitors for each party asked to see me. They had been talking (great!) and had decided they wanted to continue to negotiate – without me! “Arrgghh. What!? How can you mediate without the mediator? What about me!?”. Well, that was what I thought in my head for a split second, but then my training kicked in and I paused and reflected (all in a nano-second) and then said
“OK, if that’s what you want to do, I will sit in reception, just call me in if you need me”.
An hour passed and I'd eaten too many biscuits. I knocked lightly at the door. I was a bit fearful to be honest.
“Hello, do you need me?”
“Not yet but thanks for asking, maybe knock in another hour”.
I waited another excruciating an hour, maybe more like 70 minutes, and knocked again.
“No thanks, not yet”.
This went on and I just tried to look busy, tried not to eat more biscuits (a complete fail) and made sure they had coffees and food and after about four hours they asked me to come in and watch them sign the settlement agreement.
I was really unsure what to do. Was I a failure? It had settled and I was, at least nominally, the mediator. So should I be pleased or was I a fraud?
The answer came in the feedback from the parties. They were delighted with me. I had given them the space to negotiate. I had explained the process and the fact that mediation gives you an opportunity to negotiate openly and freely. They felt they could do that and they were happy to do it under the confidentiality of a mediation on their own. They thanked me for being flexible enough to allow them to negotiate and not be a prima donna – mentioning they had had other mediators who would have refused to be absent from negotiations, especially for four hours.
So, it was Mediator 0 Mediation 1. I didn’t care though, I learned a valuable lesson that day – the mediation process is so good that sometimes it can be enough on its own. As mediator don't interfere too much, sometimes it is OK to sit and eat biscuits.