Our new ‘Meet the Mediator’ feature continues with Kate Jackson 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 or techniques they find useful in breaking a deadlock, a mediation they will always remember and why 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?
Whatever sector your business experience it will enrich what you can offer as a mediator.
For me, my experience as a litigator means that I am used to handling disputes in a variety of industry sectors, the case to be mediated may concern a power plant in South America one day or an emerging technology company the next. In some sectors, you may not have in depth knowledge but you can acquire a sufficient working knowledge quickly.
Many of the skills developed in litigation apply equally in mediation; understanding and analysing a new case, understanding what the clients need and being able to have realistic conversations as to the litigation process going forward.
What led you to move into mediation?
The first mediation I attended whilst a litigator at Allen & Overy, I just came out thinking ‘I want your job…’. Mediation is all the parts of my old job that I enjoyed most; getting a new case, meeting the clients and then being able to be commercial and practical in trying to work out how to find a solution.
What type of cases have you been involved in as a mediator?
I enjoy a wide variety of cases and mediate in most commercial sectors. A good portion of my practice is general commercial litigation, which encompasses disputes in all industry sectors from manufacturing, engineering, pharmaceuticals through to IT and media. I regularly mediate banking and insurance cases and professional negligence claims and have also mediated a number of intellectual property claims and (financial) private client disputes.
What are one or two of the mediator techniques or strategies which you find particularly useful in breaking a deadlock?
If deadlocked, something clearly needs to change. Changing the order that you are tackling issues can work well, parking an entrenched issue for later. Or changing meeting dynamics; a break out meeting of 2 clients that you think may work well together, lawyers’ breakouts (rarely agree on the law but can enhance understanding); whatever may get a new conversation, with new ideas, started.
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?
Each case is different and needs a different approach. Some disputes are purely commercial but there is often a surprising amount of emotion in what seem to be purely commercial cases.
The sophistication and emotions of the client affect how quickly you can move forward in each room. For example, you can adopt a different approach (and pace) with a CEO who has mediated (and negotiated) many times to the approach you would take with an aggrieved investor who has no experience of legal process. I find you do not know until the mediation day how you will need to approach the mediation and whatever approach you do take will likely need constant change throughout the day.
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?
You remember cases for different reasons; sometimes it is for the unusual clients: the oligarchs, the musicians, sportspeople, sometimes operating in fields that you did not even know existed (the complexities around horse racing and the bloodstock industry were a learning curve…)
Sometimes you remember it for a process that took extra effort or had additional twists along the way. Often there is something unexpected at a mediation and sometimes settlement is only possible by simply clinging on, trying any route possible. I remember deals that have been done in lifts, on pavements outside and certainly in taxis en route to international flights.
Do you have any tips or suggestions for participants on how to maximise the potential for reaching a successful settlement?
Concede any weaker points early, then discussions will necessarily focus on areas that you have more strength in.
What’s the best part of your job?
The variety of work (no two days are the same) and the people; you meet a wide variety of interesting people. You come across clients who are leaders in their respective fields, I am regularly impressed by their skills (and generally their humility). Plus it is fascinating to get an insight into how different people negotiate and see what works (and what doesn’t…)
What changes have you seen in the field in the time you’ve been practising as a mediator? Have these changed how you mediate?
First, we have moved from the perception that you only mediate weak cases. Now (even aside from possible costs implications) it makes commercial sense to try to resolve most things.
Second, people are mediating cases much earlier. Only once or twice have I had a client tell me that they wished they were mediating later. However in the majority of my cases, I am told by one side (and often both…) that they had wanted to mediate earlier. Clients have less appetite for significant spend on litigation and do not want to expose their organisations to significant legal bills unless there is no alternative.
Third, lawyers (and often clients) are much more experienced in mediation. This makes the process more effective (and more enjoyable) as you get a sense of several of you working together to a solution, rather than parties holding themselves apart from the mediator in the way that you would a judge/ adjudicator.