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Meet the Mediator with Jane Player

Our ‘Meet the  Mediator’ feature continues with Jane Player and will feature a different mediator in each issue. Here the mediators share suggestions on maximising potential for reaching a settlement (in their opinion), strategies they find useful in breaking a deadlock, a mediation they will always remember and some of the changes they have witnessed in the mediation landscape during their time practising in the field.

How does your background as a solicitor benefit your work as a mediator?

Advising commercial clients for over 30 years I have been privileged to see how companies react to conflict and try to resolve issues as quickly and cost effectively as possible. The most innovative and progressive clients are always looking at ways to find commercial solutions and recognize that they may need external help to resolve issues arising within their organisation and with their business partners. Having seen this from an advisers point of view, when my position was inevitably partisan and based on my own client’s viewpoint only, now as a neutral I know the questions to ask to make sure everyone is balancing out strengths and weaknesses in their positions in helping parties look for a sensible compromise and a settlement that is acceptable to all.

What led you to move into mediation?

Mediation was in my DNA as ever since I qualified as a lawyer I was privy to mediation as a real alternative to litigation or arbitration right from three years PQE by senior lawyers in my first law firm believing in its value. I was trained as a mediation advocate very early in my career and knew it could add value to the DR offering. Once I saw the benefits as a lawyer I was keen to qualify myself as a mediator and have never looked back. The more I mediated the more I wanted to mediate!

What types of cases have you been involved in as a mediator?

The majority of my cases are for commercial companies and entities. A lot of the work I have done emanates out of projects, joint ventures and shareholder disputes especially cross border, but the sectors have been varied. Whilst I am known for my media, IT and IP knowledge in fact I  have mediated a wide range of cases for example in the oil and gas/construction industries, Financial sectors as well as education and professional work space such as doctors / accountants /solicitors partnership disputes. Further some of my work has been involved with family businesses and the inevitable unravelling of trusts and dealing with sensitive deep seated personal issues that have fuelled long running disputes.

What are one or two of the mediator techniques that you find particularly useful in trying to break deadlock?

Most people, whether their dispute is personal or business need to be listened to. Often their point of view has never been fully acknowledged and it is very powerful to have the other party make time to listen to their counterpart’s version of events, even if they can’t agree with their viewpoint. Understanding where someone is coming from and where the anger or hurt derives, allows the parties to ultimately move on to how they can look to the future and resolve issues. Respecting and hearing the other side of the story is a necessary part of the mediation journey and I believe coaching to make sure that can take place is one vital strategy.

Humour, where appropriate is also important to try to break down the tensions that are inevitable on a mediation day. Mediation is a tough and rigorous process where intellectual stimulus is at a high mixed with emotional reactions that vie for dominance over rational decision making. Sometimes, especially in the middle of the afternoon when you are in the heat of negotiations and requiring parties to be very exposed and transparent about their positions and encouraging their willingness to compromise, breaking the tension with some light hearted observations, sometimes about something other than the days issues, can allow parties to reset their emotions and take a pause in their thought process often producing a fresh approach to an impasse. We forget that we are all human, and parties will have energy lulls and frustrations that need managing to make sure we get to the end of the day within the remit of settlement that the parties have set themselves.

 

Disputes can often be quite complex and multifaceted. To what extent do the various elements – such as industry, size of company, jurisdiction of conflict, etc. – play a role in your approach?

Cases that present as simple at first can often be very complex even if the financial issues at stake are relatively conservative. Cultural differences and viewpoints can cause unintended conflict where a re-inspection of intentions and a deeper communication can restore relationships. Most industries have their characters and imbalances of power between entities and both factors can play a part in a dispute but generally I see similar issues arise in many sectors. Assumptions made about certain sectors such as City disputes and financial protagonists can be a mistake. Egos and pride are as much enemies to settlement as poorly advised companies unprepared to accept any weaknesses to their case or who haven’t been wisely cautioned as to the risks of no settlement.

Is there a mediation that you will always remember? What difficulties or examples of excellence did it possess and how did you learn from these?

Mediations where there are family members mixed up in commercial disputes are the most painful to watch as you appreciate that it is not just the business that is suffering. When a compromise is reached and a glimmer of hope is left at the end of a mediation that relationships can possibly mend over time, the satisfaction is immense. Conversely, when there is no settlement on the day, you continue to work hard with the parties often super conscious of a forefather watching closely from above! One case settled a year after the mediation day as it took that long to unravel matters and divide a complex business to allow some separation between directors and time to heal family upsets. To hear then 18 months on that the traditional family Christmas Lunch was back on again after a five year gap was very rewarding.

Likewise relationships in a financial business operating over four European offices which had soured caused by both cultural misunderstandings and insensitivities as well as generational differences  needed weeks of gentle unravelling and restructuring to ensure future success of the business  as well as a recognition of founder impact.

I learn something from each case. In particular I have learnt never to give up until I have exhausted every chance of settlement.  There is a real personal sense of achievement when it does settle but I also know that in the end the point of mediation is that the ultimate decision to settle is with the parties themselves. All I can do is work hard and give them their best chance to seize that opportunity or decide on balance they want to fight on for now.

Do you have any tips or suggestions for participants on how to maximise the potential for reaching settlement?

Please put as much if not more preparation in before the day as you do on the day. Zoom has allowed Mediators to meet the principals as well as the advisers pre-mediation day and this has helped to begin the process of building a relationship and understanding what’s important to the parties on the day.

Not producing a rehash of pleadings but having experienced advisers, confident in their legal position, preparing for me a mediation paper that is thoughtful around what might need to happen to resolve the issues and what each party might be prepared to do to achieve that, is extremely productive.

Some acceptance of fault or genuine regret on the way the dispute has arisen or been handled to date on the part of one party expressed at the outset has a huge impact on the way the receiving party will behave on the day and their  willingness to look forward not back at a past they cannot alter. This can often be expressed by a senior representative and cost little but can often greatly influence the likelihood of settlement.

What's the best part of your job?

The people I meet. No two mediations are the same. I am always kept on my toes and the people I meet are fascinating. To play a part in resolving a long and deeply wounding dispute is extremely rewarding.

What changes have you seen in the field in the time you have been practising as a mediator? Have these changed how you mediate?

I am mediating much earlier in the dispute life cycle. The sophistication of parties and more importantly their advisers with regards to their acknowledgement of the merits and use of mediation early has meant we can help at a much earlier stage where positions are less entrenched. Indeed I  am also undertaking “in life” mediations where the issues mediated are not yet disputes at all but “bumps” in the commercial road in projects where the thought of litigation or arbitration would be a nightmare for all parties. Constructive advisers are looking for neutrals to get involved to help get matters back on track and perhaps have a constructive renegotiation of contracts to better reflect the reality of the project or the way the contract is performing for the benefit of all.

That work is growing and could be of significant importance going forward especially post covid or post  Brexit (or both!) where contracts need to be renegotiated to reflect the new norm through no fault of  either party and to ensure neither party unfairly benefits from events out of both their contemplation at the start of their relationship. This “ fair “ way of  dealing with each other is coming to the fore for scrupulous businesses, assisted by some judges and of course encouraged by the government reflected in the Cabinet Guidance last summer 2020. Many businesses have seen in recent times that they have to work with their business partners and not take advantage of the unintended consequences. The European concept of “Good Faith “is not part of our common law system but the World is increasingly getting smaller and memories are long. Doing the right thing now can reap relationship dividends later. Neutrals can help that dialogue and create a safe environment for those conversations so that parties can try out options such as “if we are prepared to renegotiate this part of the contract would you in turn …..”  etc. Then lawyers play a vital part in drafting revisions that reflect the parties mutual goodwill and avoid fall out. This could and should be a very exciting development for the use of mediations and mediators’ skills.

When you are not mediating what do you like to do?

With three boys and a dog as well as a newly retired husband, my hands are full when I am not mediating!  I love time in Devon when we can get there. I play golf enthusiastically if not terribly well. I love to travel and have trips to South Africa and Oman to rearrange at present. I am also passionate about Rugby, a debenture holder and Harlequins fan.

Independent Mediators awarded Who's Who Legal Mediation Firm of the Year 2020

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